The UK Supreme Court's Judgment on Johnson's Prorogation

For the most part, public reactions to the Judgment of the UK Supreme Court to declare Boris Johnson's prorogation of Parliament unlawful were predictable. Those who opposed Johnson's Brexit stance were jubilant, while those who supported that stance decried the Judgment as an unwarranted judicial interference in the political realm. Pictured: The Supreme Court of the United Kingdom. (Image source: Rwendland/Wikimedia Commons)

For the most part, public reactions to the Judgment of the UK Supreme Court to declare Boris Johnson's prorogation of Parliament unlawful were predictable. Those who opposed Johnson's Brexit stance were jubilant, while those who supported that stance decried the Judgment as an unwarranted judicial interference in the political realm. So there is no need to record all those reactions, but rather a need to understand how and why the Court reached its conclusions. For sure, the Court issued a summary of its Judgment, but the summary covers so many points with so few words that crucial details lack prominence.

In particular, as the Court emphasized and as we shall see, there is a world of difference between Parliament going into recess and Parliament being prorogued. Yet Johnson and his aides went for a prorogation of over a month in a case when there would normally have been a longish recess followed by a prorogation of just a few days. This egregious departure from custom was the starting point of the reasoning adopted by the Court. (It is a vital point of which Johnson's vehement supporters and opponents alike show a lack of awareness.)

A notable exception to automatic reaction was Nigel Farage. While uncertain about the validity of the Judgment of the Court, he emphatically denounced Johnson's attempt to prorogue Parliament for an unusually long period as "one of the worst political decisions ever." Asked by the BBC about Johnson's hopes of achieving Brexit on October 31, he answered; "I don't think Brussels know even who to negotiate with. Is Boris Johnson there as a caretaker Prime Minister? He is leading a minority [government], his chances of getting anything passed by Parliament are just about zero, so I think we are heading towards extension." Speaking on his own radio show on LBC, he even joined Johnson's opponents in Parliament by calling for Johnson's resignation:

"I think he's going to have to offer his resignation to the House of Commons tomorrow and see if they accept it. I don't see any other way round it. I also take the view that the announcement of that Queen's speech and the prorogation of Parliament, it had a limited political upside. It allowed Boris Johnson to put out his political agenda but hey, he had a conference speech as leader to do that anyway. The upside of this was tiny, the downside of this is he united the Remainers, united the Establishment, forced in a sense, the Benn Act to go through Parliament, 21 of his own MPs to have the whip taken away from them, and now this judgement. It has been a catastrophic political disaster, that is what I think."

Nigel Farage, we hardly need remind readers, was the man who contributed more than any other person to both calling for and winning the Brexit referendum in 2016. So much so that he could abandon UKIP, his then instrument in that victory, because of a subsequent UKIP leader's flirtation with Tommy Robinson, but then found the Brexit Party, which obliterated UKIP in the recent elections to the European Parliament. (Robinson even lost his £5000 election deposit, receiving only 2.2% of the vote in a multi-member constituency that saw three Brexit Party candidates elected.) Farage then offered Johnson a coalition with the Conservative Party in an imminent UK election. Johnson indignantly refused, opening the possibility of a right-wing split that could make Labour's Jeremy Corbyn the next PM, such is the nature of the UK first-past-the-post electoral system, as we have explained previously. Farage naturally sees that as another disastrous decision by Johnson.

As for the general public, a ComRes poll has found that interviewees agreed 50% to 29% (with 21% unsure) that "the Supreme Court was right to rule that Boris Johnson's prorogation of parliament was unlawful," while nevertheless 49% agreed that "the UK should leave with or without a deal by 31st October 2019." That is, the public tends to agree with Johnson's aims but thinks that he went the wrong way about them – precisely the view of Farage. (A poll by Opinium likewise found 49% versus 35% agreeing with the Supreme Court.) To confuse matters further, however, in numerous polls over past months the same public, when asked how it would vote if the 2016 referendum were held today, has swung back and forth between preferring "Leave" or "Remain."

Another recent poll also indicated that only a fifth of the public actually wants a no-deal Brexit, confirming a trend noticed in some earlier polls. So on this point Farage, who does want it, is out of tune with the public. If there is any clear conclusion from all the polls on Brexit, it is that those who claim to represent the overwhelming view of the UK public certainly do not. You will always find that they have picked out just what suits them from a very complex state of public opinion.

A Crucial Moment

Before scrutinizing the details of the Court's Judgment, we should note a crucial moment during the attempt of Johnson's advocate, Sir James Eadie, to convince the judges that the UK PM has the right to prorogue Parliament whenever (s)he likes and as long as (s)he likes. He was suddenly asked by Lord Kerr, one of the judges: "What if he decided to prorogue for one year? That is exercising me."

This may have been the moment when Eadie lost the argument on two grounds, First, the import of the judge's question was to argue: "There are obvious cases in which in which a prorogation would be unlawful, so your claim of an unlimited right to prorogue seems to be false."

Second, not only did Eadie fail to respond to that argument, but he compounded his failure by insisting: "Even if the prorogation in the present case was designed to advance the Government's political agenda regarding withdrawal from the European Union rather than preparations for the Queen's Speech [i.e., Johnson's claimed reason for the prorogation], that is not territory in which a court can enter." This was to claim that Johnson even had the right deliberately to mislead the Queen about his motives in requesting her to give formal approval to the prorogation.

After Johnson's advocate lost the argument on a crucial point, the likely Judgment of the Court was evident. Surprising, at most, was that all eleven judges unanimously backed it.

How the Judgment Went

The UK Supreme Court has a webpage of Decided Cases, from which one can find links to the full text of its Judgment (also available in PDF form). It consists of 71 Paragraphs.

In Paragraph 1 of the Judgment, the judges clearly defined the task that faced them:

It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a "one off". But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.

Paragraphs 2-6 are devoted to the question "What is prorogation?" and to distinguishing that process from a dissolution of Parliament and from a recess. The main point is to clarify who is empowered to make such a decision. A recess is a decision taken by either House or both not to meet for a set period during which other parliamentary activity (committees, etc.) can nevertheless continue. The decision is proposed by the Prime Minister in the Commons and by the Lord Speaker in the Lords, but each House has the power to accept or reject it. A prorogation, by contrast, ends all parliamentary business for a specified number of days and any uncompleted legislation is normally lost. This is a decision taken formally by the Crown, but always following the advice of the Prime Minister; it is not taken by Parliament but imposed upon it. At the end of the prorogation, a new session of parliament begins with a speech read out by the Queen to both Houses, in which the government outlines its proposals for fresh business. Until 2011, the dissolution of Parliament and the proclamation of a general election followed the same procedure, so it was a decision imposed upon the legislature by the executive. But now, since the Fixed-term Parliaments Act of that year, elections are held for a Parliament that is intended to last for five years; it is Parliament itself that has the right to vote for or against dissolving itself before the end of that period.

Paragraphs 7-14 recount "The run-up to this prorogation," starting from the referendum of 2016 and leading up to the replacement of Theresa May as Prime Minister by Boris Johnson. All that is well known enough not to need repetition here. More interesting are Paragraphs 15-22 on "This prorogation," where the judges specified what they did and did not know about how and why the government decided to ask the Queen formally to approve a prorogation of Parliament until October 14. Mainly, the judges had three documents.

The first document was " a Memorandum dated 15th August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister's Office." Among the "key points" noted by the judges was the attempt made by da Costa to justify a prorogation "for up to 34 calendar days" although the "usual length of a prorogation was under ten days." Her argument was that "a maximum of seven days were lost apart from the time usually set aside for the conference recess," that is, the period during which the major political parties hold their annual conferences. (Here we may note that her argument contained obvious weaknesses: she admitted up to seven unexplained lost days and, as we have seen, a prorogation also terminates much parliamentary business that can continue during a recess.)

The "second document" was some notes scribbled by Johnson on the first document and the "third document" was a memorandum by da Costa about the arrangements of the visit to the Queen. More interesting is what the judges saw in a fourth document, " the Minutes of the Cabinet meeting held by conference call" after the Queen had formally agreed to the prorogation. Johnson told his ministers that it was "important to emphasise that this decision to prorogue Parliament for a Queen's Speech was not driven by Brexit considerations: it was about pursuing an exciting and dynamic legislative programme to take forward the Government's agenda." (This argument. too, has an evident weakness. Since every fall every UK government tries to be "exciting and dynamic" in the Queen's Speech, he left – like da Costa – unexplained why 34 days were needed instead of the customary few. Moreover, since Johnson expelled 21 of his own Conservative MPs, he no longer has a majority in the Commons for any program.)

Paragraphs 23-27 explain how "These proceedings" began in the Supreme Court in the form of two appeals against decisions of lower courts. One appeal was against a ruling by a court in Scotland that "the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive, and that it and the prorogation which followed it were unlawful and thus null and of no effect." The other appeal was against a contrary ruling by a court of England and Wales that "the issue was not justiciable." The Supreme Court summarized the points at issue in Paragraph 27.

Both cases raise the same four issues, although there is some overlap between the issues:

(1) Is the question of whether the Prime Minister's advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

Since the Court found that the answer to (1) is basically "Yes" and to (3) is "No," its Judgment proceeds to discuss the four issues in Paragraphs 28-37, 38-54, 55-61 and 62-71 respectively.

(1) Justiciability. The judges began (Paragraph 30) by defining the nature of prorogation: " the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown" (that is, in effect, by the PM). Consequently, it does " place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament."

They continued (Paragraph 31):

Secondly. although 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.

Further (Paragraph 33):

Thirdly, the Prime Minister's accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued... The second reason is that the courts have a duty to give effect to the law, irrespective of the minister's political accountability to Parliament.

So the judges saw no obstacle in principle to the justiciability of a PM's decision to prorogue. Rather, the question was whether the particular case of Johnson's prorogation is justiciable. This, said the judges (Paragraph 37), required them to process to the second of the four issues.

(2) Standard of lawfulness. Here we may note that in Paragraph 42 the judges came back to the very question raised by Lord Kerr, as described above:

The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.

In subsequent Paragraphs, they dismissed the answer of Johnson's advocate to Lord Kerr's question and noted that prorogations in modern practice have always been short. This, they pointed out, is required not just by the principle of parliamentary sovereignty but also by the principle of parliamentary accountability (Paragraph 46). Consequently (Paragraph 50):

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that 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.

(3) Lawfulness of Johnson's prorogation. Whereas elsewhere in their Judgment the judges were often weighing one consideration against another, here they speak plainly and without hesitation: Johnson's prorogation was manifestly unlawful and both Johnson and da Costa should have known it. "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." They quoted the "unchallenged evidence of Sir John Major," a former Conservative Prime Minister, before the court: "The work on the Queen's Speech varies according to the size of the programme. But a typical time is four to six days."

As for the Memorandum of Nikki da Costa, attempting to justify such an egregious prorogation: "Perhaps most tellingly of all, the memorandum does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same." In short, the judges tore to shreds all the arguments offered by Johnson's advocate for a manifestly unlawful prorogation. For readers who are curious to sample their unusually withering language, a summary is available below in the Appendix.

(4) Remedy. Here the judges dismissed a claim by Johnson's legal team that the Court had no power to do anything about Johnson's prorogation on account of Article 9 of the Bill of Rights of 1688, an Act of the Parliament of England and Wales. (At that time, there was a separate Parliament of Scotland, which passed a similar act in 1689.) The article states "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament." The judges answered, first, that the Court has the right to rule upon the interpretation of any Act. Second, its interpretation of Article 9 of the Bill of Rights is that prorogation is evidently not a "debate" or "proceeding in Parliament," but a proceeding initiated by the Prime Minister, given formal approval by the Queen and presented to the members of both Houses of Parliament, assembled together in the House of Lords. " Quite the contrary: it is something which is imposed upon them from outside" (Paragraph 68).

With that quibble removed, the judges found that the remedy of Johnson's unlawful act was plain (Paragraph 70):

It follows that Parliament has not been prorogued and that this court should make declarations to that effect... 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.

The US Parallel

Whatever the further repercussions in the UK itself, our American friends may notice that the Judgment brings the UK's unwritten constitution closer to the written constitution of the US. The President of the United States does not have the power to dissolve Congress and call new elections, however much some presidents might have wished that they could. The corresponding power was taken away from the UK PM as recently as 2011.

Some presidents, too, might wish that they could stop all proceedings in Congress for as long as they wanted, while nullifying all legislation in progress, even an impeachment. The US President, of course, has no such power whatever. The UK Supreme Court has now decided that the PM is allowed that power only for restricted periods and for due purpose. So while many of Johnson's supporters in the UK continue to rail against the Supreme Court, we do not understand why any of our American friends would want to join that particular chorus, since the Court endorsed a freedom of Parliament that Congress takes for granted.

More importantly, in this Judgment the Supreme Court has clearly delineated the proper relationship between the executive, the legislature and the judiciary in the Constitution of the UK. The US Constitution had such a delineation from the outset, of course, since it was a prime concern of the Founding Fathers. But since the UK Constitution is in an intermittent process of transition from unwritten tradition to written formulation, the Judgment is a major step in that process and may become the key precedent for all future cases in which such a delineation is required.

Appendix

As promised above, here we summarize each of the seven paragraphs (55-61) in which the judges declared the unlawfulness of Johnson's prorogation. Here we find the explanation for why all eleven judges unanimously ruled against Johnson: the matter was so manifest that none of them had a doubt about it.

... The first question, therefore, is 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 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... 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.

Such an interruption in the process of responsible government might not matter in some circumstances. But the circumstances here were, as already explained, quite exceptional. A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019... And the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons.

The next question is whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy... 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?

The unchallenged evidence of Sir John Major is clear. The work on the Queen's Speech varies according to the size of the programme. But a typical time is four to six days...

Nor does the Memorandum from Nikki da Costa outlined in para 17 above suggest that the Government needed five weeks to put together its legislative agenda... Perhaps most tellingly of all, the memorandum does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same...

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.

In declining to "speculate," the judges sidestepped the question of whether Johnson had deliberately lied to the Queen in asking for her formal approval of the prorogation. In Paragraph 53, they had recalled that " the Prime Minister had made clear his view that it was advantageous, in his negotiations with the EU, for there to be a credible risk that the United Kingdom might withdraw without an agreement unless acceptable terms were offered." And they acknowledged that some of those appearing before the Court had alleged that Johnson's "purpose in seeking a prorogation of such length at that juncture was to prevent Parliament from exercising its legislative functions, so far as was possible, until the negotiations had been completed." But in Paragraph 54 the judges decided that they need not consider that question if they already had other grounds for declaring the prorogation unlawful.

Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.