London 24 Sept 2019 – There are many statements of Supreme Court of Justice’s verdict handed down today that make of it an historic one. The crucial one is: the power to prorogue cannot be unlimited.
1) Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.
2) The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law […] Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them.
3) […] the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law.
4) An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty…the power to prorogue cannot be unlimited.
On the day of verdict against Parliament shutdown, MPs are busier than ever: Mr Steve Bray, leading the permanent anti Brexit protest outside Parliament, said even the Speaker John Bercow was in.
Immediate reactions after the verdict at the Supreme Court in London
Gina Miller: “Today is not a win for any individual or cause, it’s a win for parliamentary sovereignty, the separation of powers and the independence of the British courts.
Crucially today’s ruling confirms that we are a nation governed by the rule of law, everyone even the prime ministers is not above the law.
Do not let the government play down the seriousness of the judgement: today in a unanimous judgement judges have spoken unequivocally and what I say to the Prime Minister is to repeat the words of Lady Hale: that order was a blank piece of paper: Parliament was not prorogued. MPs should turn up to work tomorrow and get on scrutinising the government.
Joanna Cherry: “The Supreme Court ruled that Parliament has not been prorogued, so there is nothing to stop us, MPs such as myself and my colleagues, from resuming immediately the job of scrutinising this minority Tory government as we go towards Brexit. As a Scots and Scots lawyer I am absolutely delighted that the UK Supreme Court has agreed with Scotland Supreme Court that the prorogation was unlawful and therefore was null and void.
This is a huge victory for the rule of law and democracy and it’s very much in keeping with the Scottish constitutional tradition that neither the government nor indeed the monarch are above the law. With regards to Mr Boris Johnson the highest court in UK has unanimously found that his advice given to HM the Queen was unlawful his position is untenable and he should have the guts to do the decent thing and resign.
Time and its rational connection with purpose: the meaning beyond the Constitution in the Johnson’s case
London 19 Sept 2019 – Evaluating the nature and the extent of unlawfulness of the purpose the government had when prorogued the Parliament is a complex matter because this equates to evaluate to what extent the executive can lawfully use its political power (in this case prorogation).
And, while lawyers on both sides (the government vs Miller+Cherry/Scottish MPs) argue within the frames of Constitutional and Common laws, the 11 judges of the Supreme Court narrow down the legal battlefield to reach a critical point: time.
Time is always an inflexible parameter for evaluation and final judgements, inside courts of justice as in life.
It’s, maybe, this the reason why the 11 judges of the British Supreme Court are keen to ask about the time frames needed for the Parliament business before and after its prorogation and what legislative agenda had been missed because of such a long prorogation of five weeks.
KEY QUESTIONS FROM THE JUDGES OF THE SUPREME COURT:
Lord Kerr: if parliament could have been recessed in combination with prorogation implying for such a length of time
Lady Hale said effect of prorogation is that all Parliamentary Bills will fall and “have to start all over again” in the new session
Lady Arden if courts would have no role in a situation in which the length of a prorogation has no rational connection with the purpose of such a prorogation.
Punctual and precise questions suggesting time is going to be the unquestionable parameter of the final verdict and the constant value to measure the extent of violation of independence of powers in the form of abuse of executive over the legislative power.
The Parliament has been unlawfully shut down in the critical context of Brexit with the purpose of leaving no time to MPs to act to avoid a no-deal, discuss negotiations or to table a no-confidence motion to bring down a minority, non elected, government: this is the accusation. This purpose has been hidden, non declared, non evidenced and disguised as Queen’s Speech necessity. This is the core of the allegations against the government.
In order for this allegation to be verified, judges need evidence of how much time the closure of Parliament has taken away from MPs’ activity and assess if it is true lawmakers have been deprived of seven working days only.
“Seven days. Is that really ‘ample’ time?” asked O’Neill before introducing the ‘remedy’ option “because the Parliament did not have actually the chance to stop prorogation”. He fired back govt lawyer Sir Keen who sustained “Parliament had time and chances to act to stop prorogation”.
In the second hearing Sir James Eadie QC in defence of the government said “parliament had options during the period up to the prorogation, such as a motion of no confidence” adding that parliament has had years to legislate and consider the effect of Brexit. “Parliament had the opportunity to sit and debate in advance of prorogation and after the Queen’s speech from 14 October”.
But as prorogation itself is legal and constitution does not provide the courts with power of intervention over its length, a rational connection comes into play: that of the exceptional length of this prorogation and the purpose of it. This cause-effect relation is the key we will sure find in the verdict because in order to block a no-confidence motion, MPs scrutiny over a no-deal or supposed negotiations with the EU, Boris Johnson planned on purpose prorogation to intentionally obtain the effects it has.
This rationale is provided by the legal evidence (Johnson hand written letter), by the intentional non submission of witness statements and documents and the time frame indicating 17 October EU Council as a key date for the PM to deal with the EU as planned: with no parliament interference in order to forward a no-deal pressing strategy.
The prove of time would substantiate the intricate constitutional conflict of executive power prevaricating over the legislative one and when taken into accountability in a court of justice, addresses the judiciary as an ‘interfering’ power into political sphere. A constitutional conundrum in a ‘state of nations’ (as the Scottish lawyer Aidan O’Neil is keen to define the UK) where Constitution has not been put in writing, as yet.
The truth beyond the mats: the government did not provide credible legitimate reasons for proroguing the Parliament
London 17 Sep. 2019 – The two separate claims against Parliament prorogation until shortly before Brexit date of 31st October became one single case in front of the judges of the Supreme Court.
The first hearing started with Gina Miller’s appeal against the High Court decision to dismiss her case as “non justiciable” because purely political and outside the courts jurisdiction. Lord Pannick QC explained “the Prime Minister hasn’t discretion on the breath of his power… government powers are limited so prorogation as well…Even if this is not written in any statutory text on boundaries of prorogation of Parliament, this does not mean those boundaries do not exist; that’s why we cannot say this case is not justiciable”.
But the case is not constitutional only, but also legal, that’s why Pannick introduced what he called a “two folded submission” which in its second part faces the sad reality of the political purposes of the suspension of Parliament made clearly “in order to avoid MPs scrutiny”. He highlighted the fact the Prime Minister Boris Johnson did not provide the evidence required on the purposes and motive he advised the Queen on prorogation while in statements to the media he instead referred to Parliament as an obstacle to Brexit and negotiations going forward, said Pannick quoting also PM’s statements given to the BBC. PM gave “statements to broadcasters mentioning concern about Parliament potentially damaging negotiations”, evidences that “cries out’ against Johnson the Supreme Court heard.
The evidence of political purposes seem unquestionable, but going in depth in the nature of this purposes Miller’s defence demonstrates the abusive use of prerogative powers, tracing legal and constitutional evidence for this back to the 16th century onward, showing how “prerogative power must be compatible with Common laws”.
The government replies on the same issue stating the contested political purposes are legal and constitutional: Lord Keen QC looks back to the recent past when British Parliament “was prorogued in 1914 due to the war, 1930 for 80 days clearly not for the purpose of delivering the King’s Speech, soon after the economic crisis, and 1948 for the clear political purpose of avoiding a defeat in the House of Lords. Lord Keen stressed the legality of prorogation of Parliament in order to achieve political goals “so not for improper purposes but for purposes the executive is entitled to”.
But when questioned by the Supreme court about the nature of this political consideration, whether this should be considered legitimate or not, stances became less decisive and increasingly furry. The judges introduced a challenge to the PM’s defence referring to a possible scenario in which Parliament is suspended in a context of illegality such as“bribery and corruption”.
The illegality of the purposes of prorogation was in fact profiled by the claimants (both Miller and Scottish MPs represented by O’Neill QC): what therefore would be in this case the stance of the executive defence? That means, prorogation to achieve political goals could be legal, but what if these particular political goals were illegal?
“What if political consideration is offending the law? one of the judges asked. The question left Keen visibly stuck: he just echoed the judges saying “proroguing for political purposes is legal, constitutional, but if is prorogued with goals which are illegal then the purpose is illegal”.
This exchange of considerations on the nature and legitimacy of political goals, leads to foresee in the coming two hearing judges of the Supreme Court to dive deeper in the merit of the actual purpose of prorogation which today in the first hearing has only being introduced.
Executive’s defence also stated the “courts intervention is unrespectful of separation of powers because Parliament can act on prorogation in primary legislation”. “Parliament – said Lord Keen – has the means to set the limits of the executive to prorogue”. He explained his point: courts are intruding in separation of powers because “the prorogation was announced”, therefore MPs could have power and time stopped it.
But right the count of the days Lord Keen is diligently doing, uncovers the malicious purpose beyond the mats: in the end “only seven days of Parliament sitting are lost and not five weeks” because of the overlapping of prorogation and conference recess, he said. But right this makes the question more urgent on the real nature and legitimacy of the purpose of adding prorogation to the recess, a question which, until now, finds an answer only in the words of Lord Pannick echoed by the anti Brexit protesters outside the Supreme Court: ‘to deliver a damaging no-deal Brexit’, which might be considered an illegitimate political purpose for Parliament prorogation.