Decision by Prime Minister, Boris Johnson, to suspend Parliament was ‘unlawful’
For a South African watching Lady Hale in the Supreme Court of the United Kingdom this morning, delivering a judgment that had the unanimous support of 11 justices – the maximum that may sit together in a case – there was something familiar about it.
We have become used to our courts finding that the executive or legislature has acted unconstitutionally and setting aside even major government decisions. But for MPs and ordinary members of the public in the UK, this was something exceedingly rare. Commentators pointed to the ‘robust language’ of the court’s decision, and said how surprising it was to find the court in complete unanimity in such a matter.
In fact, to a South African, the language was fairly tame.
After giving the background – a good read for those not up to date with the immediate events before Parliament was dissolved – the court made several points, one of which was about the courts and their intervention on political matters.
‘(A)lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.’
And then this: ‘The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.’
‘ …(A) decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.’
Did the PM’s action in proroguing Parliament frustrate or prevent the constitutional role of Parliament in holding the Government to account?
‘The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.’
Was there a reasonable justification for the action taken by the Prime Minister? In asking this question the court made clear that it was not speaking here about his ‘motive’, but rather whether there was a reason for him to take actions ‘which had such an extreme effect upon the fundamentals of our democracy’.
‘It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks. Everything was focussed on the need for a new Queen’s Speech and the reasons for holding that in the week beginning the 14th October rather than the previous week. But why did that need a prorogation of five weeks?’
Here is the court’s conclusion on this key issue: ‘It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.’
The Prime Minister’s advice that led to the suspension of Paliament was unlawful, said the court. ‘It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect: see, if authority were needed, R (UNISON) v Lord Chancellor  UKSC 51, para 119. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.’
And the effect of this declaration? ‘It follows that Parliament has not been prorogued and that this court should make declarations to that effect. We have been told by counsel for the Prime Minister that he will “take all necessary steps to comply with the terms of any declaration made by the court” and we expect him to do so. However, it appears to us that, as Parliament is not prorogued, it is for Parliament to decide what to do next. There is no need for Parliament to be recalled under the Meeting of Parliament Act 1797. Nor has Parliament voted to adjourn or go into recess. Unless there is some Parliamentary rule to the contrary of which we are unaware, the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward. That would, of course, be a proceeding in Parliament which could not be called in question in this or any other court.’