The United Kingdom’s Supreme Court ruled yesterday that the current prorogation of parliament is “unlawful”. In doing so, the Court revealed itself to be steeped in the mindset and perspective of the EU project; it revealed its willingness to disrupt the balance of the UK’s constitutional arrangements; it contributed to the efforts of the Remain-at-all costs lobby [to no real effect, in my view]; and it revealed a partisan and political abuse of their judicial office with no fundamental respect for the constitution of the United Kingdom.
In the scale of expectations from both sides of the argument, this ruling went as far as it could possibly have gone to one extreme of the spectrum of possible outcomes. That in itself is an indicator. Another clue is that the decision of the maximum panel of 11 was unanimous. No hint of disagreement – yet 3 senior judges of the the High Court in England had ruled unanimously that such a use of the Crown’s prerogative power to prorogue was beyond the remit of the courts to even hear, let alone decide.
They of course were right. A similar hearing before a Scottish court of 3 judges decided the opposite, and agreed with yesterday’s Supreme court decision that Boris Johnson’s advice to the Queen to prorogue parliament was “unlawful”.
I submit that the decisions from the various courts reflect their predispositions and mindset, rather than an objective reading of all the relevant facts in the matter. Significantly, the Scottish legal system is akin to that of the continental tradition, not the English.
This unprecedent intervention and intrusion into the crown’s prerogative powers by the Supreme court must now be over-ruled and set right by a future Act of Parliament. That new Act will need to give definition to the length of time parliament is prepared to see itself prorogued or indeed dissolved. Such an Act will need to do away with the 2011 Fixed Term Parliament Act which has created the current nonsensical and impractical situation. In this situation where a Government no longer has a majority in the House of Commons, the Commons has refused a General Election twice this month. Why ? Because it is desperate to keep itself in being to frustrate Brexit, and because it fears that the inevitable election will remove its hard-line Remain majority.
What we are witnessing in parliament is the triumph [albeit very limited in time] of political machinations to destroy Brexit against the overwhelming constitutional and political need for a new General Election to elect an entirely new House of Commons.
A Prime Minister has always been understood to have the right to ask [ie instruct] the Monarch to prorogue [in effect suspend] parliament. The PM also had the right to dissolve parliament until the 2011 Act cited above removed that and gave it to parliament. Significantly, parliament did not attempt by that Act to determine any limitation on the Prime Minister’s advice to the Queen to prorogue parliament. This is a major omission in the Supreme Courts 71 paragraph, 24 page decision yesterday.
The UK Supreme Court has chosen to make up a wholly new basis on which to extend its influence to the detriment of the Executive. It has applied its test to selected, “acceptable” evidence. It has done so because it started with the assumption that the Prime Minister is guilty as charged by the Remain plaintiffs; it then looked at the political situation to find reasons to support that view, and ruled accordingly.
In paragraph 50 of the full Judgement they have created a wholly new basis on which to view the situation. The preamble to this new basis of decision is contained in paragraphs 39 to 49. That preamble also gives them away. In paragraph 44, they cite the existence of Acts of parliament which ” confirms the necessity of a legal limit on the power to prorogue” but then immediately say, “but they do not address the situation with which the present appeals are concerned”. Thus they justify continuing with the basis for their spurious paragraph 50 test.
What they should have done, was conclude that such statutes along with the 2011 Act cited above demonstrate that parliament will intervene in such matters and limit the Executive when and if parliament sees fit – it is parliament’s role to limit the executive in relation to parliament – NOT THE COURTS !
And that is the long standing and orthodox position which the Court has chosen to overturn.
The Supreme Court has by yesterday’s decision encroached on Parliament’s relationship with the Executive. In our constitution, parliament is paramount – parliament can legislate to constrain or empower the Executive; parliament can pass a statute to confirm amend or cancel a court ruling [as I have suggested above].
But the Supreme court has placed itself in this unprecedented position because it reflects the mindset and approach of the European Union project. In that project, the European Court has the final word.
The Supreme Court’s paragraph 50 test may look good, but conceals a travesty. It creates a pretext for the Judiciary to query and over-rule the Executive, even in its legitimate functions.
The Supreme Court has granted itself the Right to interpret a political situation and claims it by posing very general, sound principles to protect parliament against the Executive !
As if parliament did not have that power – a power parliament has refused to use to dismiss a hopelessly minority government twice this month.
The judiciary is playing politics and it is encroaching not just on the Executive, but on parliament itself.
Their 71 paragraph, 24 page Judgement cites certain of the key facts which they should have considered, but then refuses to actually consider the meaning and significance of those facts in arriving at their decision.
The case of certain statutes has been mentioned. Other such pertinent facts include:
- the parliament prorogued has just held the 2nd longest parliamentary session in our entire history – the longest occurring in the 17th century
- parliament has passed all the relevant major legislation on this issue, and has even been able to pass an Act to command the Prime Minister to request an extension of Brexit by 3 months from October 31st
- under the prorogation of 5 weeks, the de facto position was that only two weeks were lost as 3 of the weeks were party conferences when parliamentarians absent themselves anyway
- the Court made much of a normal prorogation being only 6 days, but this prorogation was effectively only another week more than that – exactly how great a loss is that really going to be; does it really justify the unprecedented intrusion of the Supreme court, especially as the court’s judgement itself qualifies the need to intervene
- the government DID NOT DENY PARLIAMENT the ability to sit either before or after the all important EU council meeting on October 17th which will consider the Brexit issues
The Supreme Court has ignored the reality of the situation – parliament is not being prevented from scrutinising the Executive in any meaningful way.
But Remainiacs saw themselves as deprived of the ability to frustrate the Executive over Brexit.
And in overall, real terms where would the frustration of Brexit lead us ?
To the denial of our parliamentary sovereignty because EU law and EU institutions are superior.
All those claims about protecting our parliamentary democracy are therefore utterly false – propaganda which the Supreme Court has now promoted
Ray Catlin
references: the Supreme Court summary judgement is at
Click to access uksc-2019-0192-summary.pdf
and the full judgement is at
Click to access uksc-2019-0192-judgment.pdf
Conservatism Institute 