The Supreme Court has unanimously ruled that Boris Johnson’s advice to the Queen to prorogue Parliament for five weeks was unlawful.
All 11 of the justices who heard the emergency three-day hearing last week were in agreement that the decision to prorogue Parliament had the effect of “frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”
Delivering the verdict, Lady Hale, current President of the Supreme Court stated that “No justification for taking action with such an extreme effect has been put before the court.” Furthermore, no justification was given for the necessity of a five week prorogation, given that the normal time to prepare for a Queen’s speech is four to six days.
In terms of remedies, The Court said that the decision to prorogue Parliament was “unlawful, void and of no effect”, and the Order in Council that led to proroguing was also unlawful, void and of no effect, and should be quashed. As such, Parliament has not been prorogued.
The Speaker and Lord Speaker are to decide what happens next, and in a statement released earlier, Speaker John Bercow has said that “the House of Commons must convene without delay. To this end, I will now consult the party leaders as a matter of urgency.”
In breaking down the decision, Lady Hale explained that the court first had to establish whether the prime minister’s decision to use royal prerogative powers could be scrutinised in the courts. The Scottish appeal court ruled that is was justiciable, while the English high court refused to intervene. The Supreme Court unanimously decided that it can be examined.
The Government argued that the decision was injusticable, because it was a Parliamentary proceeding. But when delivering the ruling, Lady Hale stated that this was not the case.
But it is quite clear that the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.
By this, she means that prorogation is actually imposed on the House by an external force (the Queen, at the advice of the prime minister) and represents the end of parliament, so cannot be a proceeding of Parliament.
Having decided that the prime minister’s advice to the Queen was justiciable, the second question The Court had to decide what the limits are on prerogative power – the power a prime minister is vested by the Queen to make decisions – in proroguing Parliament. To that end, The Court ruled the following:
“[Proroguing 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.”
This means that if the decision to prorogue Parliament is made so the Government can the scrutiny that Parliament is democratically expected to apply, then it is an unlawful act.
Establishing the definition of an unlawful proroguing, The Court then had to establish whether that was applicable in the decision made by Boris Johnson when he prorogued Parliament earlier this month.
On this point, Lady Hale provided context for what happens during prorogation. While prorogued, neither the House of Commons or the House of Lords can meet, debate, or pass legislation, and any legislation currently being worked on have to start from scratch once Parliament reopens. Lady Hale said that the prolonged suspension took place in “exceptional circumstances”, with just weeks before the UK is set to leave the European Union, and that the House of Commons, as the democratically elected voice of the people, should have a say in how that comes about.
She then continued to say that the Government failed to provide any justification for the prolonged halting of Parliament, and subsequently it must be concluded that it was done to prevent Parliament from completing its constitutional functions.
What to know what prorogation means, and why this is a big deal? We have an explainer article for you here.