Legal Officer’s View: The Prorogation Case in the Supreme Court

By Paul Ellis, Legal Officer

19th September 2019

The news watching public have sat through more parliamentary votes and debates over standing orders and Erskine May over the past three years than is normal for a whole lifetime.
The respite from more Brexit that came with prorogation of parliament has proved brief as the battle has only moved a few hundred yards across the square to the Supreme Court. Here arguments have been put that prorogation was illegal and that the parliament should be recalled to hold the government to account and possibly enact more legislation. What joy.

The point in issue is initially an arcane one: is the prime minister’s advice to the monarch to prorogue parliament an act of the executive, in which case the courts can review it, as they review any act of the government to determine if it is lawful, or is it a political act that forms part of the proceedings of parliament and which the courts are forbidden from pronouncing upon by the Bill of Rights of 1689. If the court decides that it is an act of the executive, it must then consider a second and more controversial question: whether Boris Johnson acted through ‘improper motivation’ in advising the Queen to prorogue this parliament for five weeks.

There is, it should be said, no ‘correct’ legal answer to either question. The British constitution works on following convention, but the country is in the midst of an entirely unprecedented set of circumstances and a deep constitutional crisis.

Lady Hale, President of the Supreme Court, insisted again and again that the case was not about Brexit. The court would focus exclusively on the narrow one of the decision to prorogue and ignore all context.

So the court did not ask whether achieving the decision voted for by the majority in a national referendum would be an ‘improper reason’ for proguing a parliament that was refusing to do so. It did not address parliament’s own unconstitutional behaviour in seeking to legislate to negotiate with a foreign power from the opposition benches whilst refusing to allow an election. Most importantly, the court looked away from the heart of the Brexit crisis: the paradox that parliament is stretching the doctrine of its own sovereignty to braking point for the explicit purpose of surrendering that sovereignty, possibly permanently, to an unaccountable foreign power.

As David Starkey succinctly put it, parliamentary sovereignty is meaningless without national sovereignty. Many, including myself, would go further, and say that parliamentary sovereignty is not superior to the will of the people formally expressed in a referendum.

Possibly the justices hoped that by isolating the issue of the prorogation from its context they could provide one small island of certainty within the chaos. But how could the court sensibly find and apply precedent for a situation that is completely without precedent? How can one address the propriety of Boris Johnson’s motives without considering the context that British democracy is fighting for its life?

The case offers a golden, possibly the only opportunity for the Supreme Court to introduce some much-needed sanity to the present crisis. In its judgment it could point out that parliament is sovereign only within the constitution, but that its own behaviour is subject to the law. It could point out that Parliament, the constitution, even the authority of the court rests ultimately upon the consent of a free population.

The Supreme Court could and should be democracy’s backstop. However, I saw little sign from the justices that the court is about to say any such things or offer the country any stability. On the contrary, I fear that the nation is about to be plunged into another round of law making without rules, and government by opposition, and the constitutional crisis will deepen yet.