So the UK Supreme Court (a bench of 11 judges) has delivered its judgment. Unaninmously. The prorogation of Parliament, based on the unlawful advice of Prime Minister Johnson, even if in form an act of the Queen, was null and void and of no effect.
A couple of weeks ago, I concluded my post on The Rogue Prorogation and the English-Scottish judicial divide with these words:
Whether the (UK) Supreme Court will be willing to go quite as far in making inferences of fact so adverse to the government as those drawn by the [Scottish] Court of Session, I have some doubts, even though I am absolutely sure those inferences are valid in reality. But at the very least, the Supreme Court should affirm the potential of judicial intervention if the true intent of a government (as expressed, or reasonably to be inferred) is to limit or prevent the exercise of Parliamentary democracy.
In truth I always thought the Court would find that the advice or act of prorogation was “justiciable” in the sense that its use could be reviewed by the courts, and overturned if the true aim is to limit or prevent Parliamentary democracy from operating. I was not convinced that they would be bold enough to actually reach that conclusion in this case, even if they expressed disquiet about the process. The fact that they have done so unanimously is itself crucial, as a (verbally) forceful but polite constitutional statement.
They make clear that the Prime Minister’s motive is not the issue as such – what is important is the reason for the decision:
“We are not concerned with the Prime Minister’s motive in doing what he did. We are concerned with whether there was a reason for him to do it. It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks. 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?”
To my mind, one of the most crucial passages in the judgment is this:
“Perhaps most tellingly of all, the memorandum [from Nikki Da Costa, director of legislative affairs at No.10] does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same. The Prime Minister’s reaction was to describe the September sitting as a “rigmarole”. Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above.” [My emphasis].
This shows the Prime Minister’s disdain or contempt for Parliament, and his evident inability to understand that he has a duty to the whole country as Prime Minister, and not solely to his Party. But the judges know as well as the rest of us that, behind the empty vessel of Mr Johnson’s narcissistic amoral self-promotion, lies Dominic Cummings – it is his contempt for the law, constitution, Parliament that is clearly also in their sights, not least in the actual form of decision.
Paragraph 30, cited above, is worth noting:
“Before considering the question of justiciability, there are four points that we should make clear at the outset. First, 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, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, 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.”
This expresses clearly the Court’s view that even Prime Ministers must take account of constitutional principles as well as political self-interest. (It has an interesting additional touch – while not questioning directly that the Queen has no alternative but to accept the PM’s advice, the copurts laconically says “we expres sno view on that matter”, which opens up the question whether – if faced with obviously undemocratic advice from her PM – the Queen can ultimately question that advice.)
The decision itself is perhaps on of the most remarkable points of the judgment. By deciding that the prorogation is null and void, the Court takes away the Prime Minister’s decison on whether or not to accept and implement the judgment. since Johnson, presumably egged on by Cummings, has been so ambiguous on this, the Court has taken the more direct path of removing that choice from him. But it does put the Queen in the very awkward position of having apparently made – on advice from her ministers – a purported decison that was not, in the end, a decision as it was legally flawed by abrogating Parliament’s rights and role:
“The logical approach to that question is to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect…It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.”
A blank sheet of paper. …