Updated: September 25, 2019 8:11:41 am
Eleven judges of the highest court in the United Kingdom have delivered an extraordinary unanimous judgment, striking down as unlawful a recommendation by Prime Minister Boris Johnson to Queen Elizabeth to suspend Parliament for five weeks ahead of Britain’s scheduled October 31 exit from the European Union.
The Justices, sitting on the largest permissible Bench of the 12-judge Supreme Court, gave presiding officers of both Houses of Parliament the freedom to reconvene the Houses immediately.
The court ruled on “whether the advice given by the Prime Minister to Her Majesty the Queen on 27 or 28 August, that Parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not”.
It said the PM’s action was unlawful and the prorogation of Parliament was “void and of no effect”; it also underlined that the question was ‘justiciable’, clarifying an important aspect of the rules of engagement among the Legislature, Executive, and Judiciary in Britain’s unwritten Constitution.
Here are five takeaways from Tuesday’s historic verdict.
Courts do have the authority to intervene in ‘political’ matters
The issue was essentially whether Johnson had the right to prorogue Parliament, and whether Britain’s courts had the power to stop him. The government argued that the courts had no business jumping in because the decision to prorogue Parliament lay “in the territory of political judgment, not legal standards”.
But the court said it was “firmly of the opinion” that the question of the “lawfulness of the Prime Minister’s advice to Her Majesty is justiciable”. Courts “have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries”, the official summary of the judgment said.
In their full judgment, the Justices reasoned: “Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, (which) …includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles… It is (the courts’) particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”
The prorogation of Parliament was not business as usual
The court asked, according to the summary judgment, whether the prorogation had “the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”. It ruled that “this was not a normal prorogation”.
The “prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31 October”, the summary judgment said. “Parliament… has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.”
PM’s advice to the Queen to suspend House was unlawful
The court underlined that “the Government exists because it has the confidence of the House of Commons”, and asked whether “the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account”.
“The answer”, the Justices said, “is that of course it did” — and that the action was, therefore, unlawful. The prorogation “prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks… It is impossible for us to conclude… that there was any reason — let alone a good reason — to advise Her Majesty to prorogue Parliament… from 9th or 12th September until 14th October… It follows that the decision was unlawful.”
As of now, UK’s Parliament is not suspended at all
The summary said: “This court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.”
Parliament can, in fact, reconvene immediately
“As Parliament is not prorogued”, the court said, “it is for Parliament to decide what to do next”. Also, because it is not prorogued, it need not be recalled; and it has not voted to adjourn or go into recess.
Therefore, the court said in its full judgment, “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.”
Soon afterward, Speaker John Bercow said the House of Commons would sit at 11.30 am on Wednesday.
Speaking in New York, Johnson said that he would “obviously” respect the verdict, and “of course Parliament will come back” — but “I have to say that I strongly disagree with what the Justices have found.”
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