The UK Supreme Court today unanimously ruled that Johnson’s prorogation of parliament, which was clearly a move by him to limit the time that parliament had to thwart his attempts to force through a no-deal Brexit, was unlawful.
The UK has a tripartite system, where parliament, the government and the courts each have a defined role in balancing out the others’ decisions. O’Neill successfully persuaded three senior Scottish judges 13 days ago that Johnson was abusing the government’s powers to suspend parliament to prevent it from carrying out its constitutional duties to scrutinise and approve the government’s decisions on Brexit.
Yet judges in London and Belfast had ruled in two very similar cases that Johnson did have the power to do so: they supported the government’s views that prorogation was a political decision and that courts had no right to interfere.
The competing English and Scottish court decisions were immediately sent to the UK supreme court on appeal; the judges rushed back from holiday to fast-track the hearing, allocating 11 judges – the largest number they can convene, to hear the case. (There are 12 judges on the court, but it must have an odd number sitting on the bench to prevent deadlock.)
The 11 judges ruled unanimously. They said the case was “justiciable” and subject to the law. Giving the judgment, Lady Hale said: “The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries.”
They then ruled that the decision to prorogue parliament was unlawful because it had “the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.” She added: “No justification for taking action with such an extreme effect has been put before the court.”
In the most striking part of its ruling, the court said the speakers in both the Commons and Lords can reconvene both houses immediately. The judges upheld the court of session’s ruling that prorogation was void. They also stated that the privy council’s decision to ask the Queen to suspend parliament was also “unlawful, void and of no effect and should be quashed”. In effect, Hale said “parliament has not been prorogued”.
This is a massive slap in the face for Johnson. So what can he do?
Johnson could simply allow parliament to sit; seek to prorogue again, arguing that a shorter, “normal” prorogation ahead of a Queen’s speech is not ruled out by the court’s judgment but risking accusations that he could precipitate a constitutional crisis; or, as Corbyn and others call for his resignation, he could try to force an election.
We know that Johnson follows the Trump model of ignoring norms and expectations of what constitutes proper behavior and is likely to charge ahead with his plan to ignore parliament, not caring if he precipitates a constitutional crisis.
Speaker John Bercow has said that he would urgently consult all party leaders about convening parliament without delay. Complicating matters is that while the Labour party conference that is currently underway ends tomorrow on September 25th and the liberal party conference ended last week, the Conservative party annual national conference is yet to begin and is due to be held from September 29 through October 3. The conservative party chair has said that their conference will go ahead as scheduled.
While the clock keeps steadily ticking towards the October 31 deadline for the UK to crash out of the EU with no deal, faux journalist delivers a rant against the UK media and the pernicious influence of Rupert Murdoch’s empire that politicians on both sides of the Atlantic eagerly court. (Language advisory)