“The UK government has acted unlawfully in proroguing Parliament”. This is the meme/soundbite that, every few minutes in the news media, we are being bombarded with in the UK , following yesterday’s judgement of the Supreme Court. Unsurprisingly, there have been calls for the resignation of the Prime Minister. Is it actually true, however?
If the Government has acted unlawfully, can anyone specify which law, which Act of Parliament has been broken? (This is not a rhetorical question; if anyone out there knows the answer, I genuinely want to know. Please use the contact form.) I haven’t yet heard any Act being mentioned in the reports.
Parliamentary procedure is governed by the Constitution. Unfortunately we don’t have a written one, so things are not always clear; precedent is the usual factor taken into account when making decisions. When there is an attempt to prorogue Parliament, and the Opposition parties disagree, precedent suggests that they should put down a motion of no-confidence in the Government.
It’s not just me saying that. It is the opinion of Lord Sumption, former Supreme Court Justice, who said: “the courts are concerned with legal problems, they are not concerned with vetting the political judgements that are made by prime ministers. That is a matter for politicians to deal with, if they don’t like what the Government is doing they have to bring the Government down”¹.
It is also the opinion of Richard Ekins, Professor of Law at Oxford University, who has written a paper entitled Parliamentary Sovereignty and the Politics of Prorogation, which argues “that the prerogative power to prorogue Parliament is not subject to judicial control. Proroguing Parliament does not flout parliamentary sovereignty; the exercise of the prerogative should be challenged by political action not litigation”². He has also written in The Daily Mail: “The Government has always had the power to prorogue Parliament and it has never been for the courts to control how this power is exercised. That has always been a job for Parliament and, in the end, the people. The Court’s judgment is final and the Government has to accept this. But the Court’s reasons for its judgment are not convincing. Not so long ago, it would have been unthinkable for the courts to consider whether the power to prorogue Parliament had been misused. They would simply have said that this was not a legal question for them to decide”³.
One possible outcome of following standard procedure is a General Election. The Opposition may come up with alternative explanations (smokescreens) for their behaviour, but the suspicion is that they are terrified that, in the event of an immediate General Election, which is what Johnson has called for, a combination of the Conservatives under Boris Johnson and the Brexit Party under Nigel Farage might obtain a majority. This would prevent them from their avowed objective of keeping us in the EU, thus undemocratically overturning the result of the 2016 referendum.
Instead of following precedent, therefore, they chose a judicial review, and sought help from the courts. The case eventually reached the Supreme Court, which judged that the Government’s motivation was to prevent Parliament from having its say at this critical time. This is probably true; the Government was trying to get away with this trick. The Court therefore decided that Parliament should not have been prorogued. But did the Government act unlawfully or illegally? I repeat my earlier question, which law or precedent has been broken? On the contrary, it would seem that the Supreme Court has merely established a new precedent (law?), which the Government is therefore obliged, and has agreed to follow. In confirmation of this, even arch-Remainer Kenneth Clarke MP, interviewed on Sky News on September 26th, agreed that this was a “new law”. So how can it be said that the Government has acted unlawfully when it has broken no existing law? Would it not have been better, and less dramatic, to say that they had acted inappropriately?
On a slightly different tack, it would seem that the unelected Supreme Court is now making the laws, and setting constitutional precedent, rather than the democratically elected Parliament. Is this not a dangerous development?
(I would be grateful for responses, more information, if anyone thinks I’ve got this wrong. Please use the contact form.)
2. Source for quote: https://policyexchange.org.uk/publication/parliamentary-sovereignty-and-the-politics-of-prorogation/ A pdf of the paper can be downloaded from there.