Many people will be surprised or dismayed by the Supreme Court’s ruling on Mr. Johnson’s prorogation of Parliament. Government briefings, Twitter, right-wing tabloids will feed the anger. “Unlawful? What’s Lawful about denying 17.4m BREXIT!”, the Daily Express banner headline today gives the flavour. We are due for a tirade along “War on the Judiciary” lines, People versus the Establishment: “Unelected”, “Undemocratic” “Meddling in our Politics”, “Constitutional Coup” and so on.
It will be no use arguing that our democracy, political stability and constitutional arrangements sometimes require an independent referee between executive and legislature, particularly when the executive tries to avoid scrutiny and shows signs of becoming unaccountable. Which is of course where and when the Law has to intervene. Parliament is the primary law-maker. But, notably when big constitutional issues are at stake, courts take precedence over the rule of anyone else, elected or otherwise: Prime Minister, the Crown in Parliament, the Privy Council, and Lords Spiritual and Temporal. At such moments the court’s judgement may necessarily be political in the broadest sense of influencing the political realm in which the dispute has arisen - just as a referee’s decision will influence the outcome of a football match. Eleven referees in this case came to the same decision. Mr. Johnson was shown a yellow card.
The popular counter-argument will say the Prime Minister should be permitted in this case to treat the sovereignty of parliament with contempt because politicians have made a contemptible and unholy mess of things, and Mr. Johnson has promised to get things done and dusted to honour the 2016 Referendum result. It is rather like saying, after a football team has missed several goals, that the other captain can henceforth ignore the off-side rule, and if progress in the opponent’s half is slow, take over as referee to ensure victory for his team.
The Supreme Court did not mince its words. The impact of Johnson’s lengthy five week prorogation “on the fundamentals of democracy was extreme”. The exercise of the core Parliamentary function, to call the executive to account, make it answerable, a principle of parliamentary sovereignty and the basis of our democracy, was being impeded and no adequate explanation for this obstruction had been provided. As I understand it, as a consequence, the Supreme Court was duty-bound to define the limits to the prerogative powers concerning prorogation exercised by the Crown on the advice of the Prime Minister through the Privy Council, and concluded that the Prime Minister had exceeded them.
The prerogative powers over proroguing were not before this judgement clearly defined. Why should they have been? As Peter Hennessy described it, the “good chap” premise of our constitutional arrangements prevailed. Good chaps don’t abuse our constitutional conventions. Those were the days.
The Supreme Court made law in the Miller and Cherry cases by their – unanimous – judgement. This is how law in this country develops and this is what the Court does. It defined the nature and limits of one prerogative power and drew the conclusion that the Prime Minister’s advice on prorogation was unlawful – he had provided no evidence that a lengthy prorogation was necessary while parliamentary oversight of government business was essential at a critical moment when constitutional change loomed on 31 October. The resultant Order in Council proroguing Parliament was null and void. Parliament was not prorogued.
I doubt if Tony Blair and Lord Falconer when they legislated for a UK Supreme Court in the 2005 Constitutional Reform Act (established on 1 October 2009) forsaw that fourteen years later the Supreme Court would be involved in an historic juridical intervention in constitutional conventions. Nor that a Prime Minister would be pulled up for unlawful conduct in the process. That’s serendipity for you.
In hindsight the judgement seems an entirely sensible and reasonable conclusion to a complex problem. The court has striven to make it comprehensible to the public. The Executive is answerable to Parliament, a simple enough starting point. The judgement has nothing, nor could have anything, to say about BREXIT. Lady Hale repeatedly made this clear.
But this will sadly cut no ice in a divided society in which emotion takes precedence over the kind of rational argument proposed by the leading German philosopher Jürgen Habermas’, an ideal of dialogue and conversation, which court proceedings at this level seem to model. As Mr. Johnson and the Daily Express doubtless wish, the BREXIT divide will determine how people view this historic moment in the workings of our judiciary and democracy. That it not the fault of the Supreme Court which has provided comforting proof that rational discourse has not entirely deserted this disunited kingdom.
See also TheArticle.com 25/09/2019