Mole hill or mountain?
The Supreme Court has decided. Boris Johnson has acted unlawfully. The eleven law Lords and Ladies leapt into deciding that he incorrectly advised the Queen. This Prorogation of Parliament was found to be wrong.
Has he dug himself into a hole? Is this a media mole hill or a mountain for Boris to climb?
The public judgement has let to a host of quotable headlines: “the decision to advise Her Majesty to prorogue Parliament was unlawful” – “it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions” – “without reasonable justification”.
A variety of cases led to a landmark judgement. In England, Gina Miller appealed an unsuccessful case, in Scotland, Joanna Cherry made more headway with the Divisional Court in appealing a decision by the Scottish Inner House.
Ultimately, the Supreme Court framed three questions. Firstly is the case justiciable, open to their intervention. Secondly what is the extent of parliamentary sovereignty and government accountability.
Thirdly, the specifics of this case were “whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”.
The situation arose through a combination of circumstances which can be tracked back to Spring this year. Theresa May yielded as Prime Minister, the Conservative Party producing a timetable to elect a new leader. The background to that was repeated defeats over the deal that May had agreed, if not negotiated in the accepted sense of the word, with the EU over the terms of Brexit.
One of the side effects was that May did not bring a State Opening of Parliament and Queen’s Speech, normally an annual event outside election years. In her case, May’s 2017 Queen’s Speech had been designed for a two year parliamentary session. Indeed, in April, former Shadow Leader of the House Chris Bryant had called for a Queen’s Speech to be presented. This was repeated by his successor, Valerie Vaz in May this year.
In fact, this had been the longest session of Parliament since the English Civil War. Quite naturally, a new Prime Minister sought to bring a new Queen’s Speech, therefore new session, at the earliest opportunity. The proposal was to do so on 14th October. Prorogation was sought on 28th August.
In years past, the advice to the Queen to prorogue Parliament for a new State Opening and Speech may not have been an issue. Party conference season has been in the Autumn since around 1950. Until 2011, the summer recess has continued until October. This is only the ninth year that Parliament has in fact sat in September, before taking another recess before conferences.
Unsurprisingly, this prorogation for a Queen’s Speech has been unprecedented in modern times. It covers the conference season when we would not expect Parliament to sit, therefore has had the effect of suspending a mid term parliamentary session for five weeks. This may have proved to be a mistake on the part of Boris, giving the Supreme Court a launchpad for its decision.
The State Opening of Parliament has typically led to a suspension of around a week beforehand. In part, this gives time for the government to finalise its legislative programme for the coming year. On the logistical side, it has been a tradition since Guy Fawkes to check for explosives, nowadays other forms of security.
It may be a point worth noting that had this prorogation been judged to be lawful, a general election could have been held before the key EU Commission meeting on 17th-18th October, potentially allowing a new, or existing, Prime Minister the opportunity to conclude negotiations.
It becomes a technicality, therefore implicitly a point of law, that a recess from September to cover the conference season would have meant a net loss of a handful of days of debate due to prorogation.
This brings us back to the Supreme Court decision. It should not have been unexpected that the judiciary might have found a case that they have the power to intervene.
It is, of course, a matter for conjecture whether the decision would have been different had a recess been voted for. As Guy Verhofstadt had pointed out, after the current Article 50 extension had been agreed “Their (MPs) first decision was to go on holiday”.
Paragraph 56 of the judgement provides for their own conjecture: “Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that”.
Paragraph 50 suggests that a shorter period of prorogation “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”.
Paragraph 51 extends that: “The Prime Minister’s wish to end one session of Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice”, the key word perhaps being “short”. Paragraphs 56-61 carry a number of references to the time period.
One of the effects of prorogation rather than recess is the capability of other aspects of parliamentary procedure to take place: “Scrutiny committees in both the House of Commons and the House of Lords play a vital role”. Therefore, those committees cannot meet, nor publish reports.
With the benefit of hindsight, it might be that a simple part of the Prime minister’s approach could have been modified: “ It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks”, assuming that repeated references to “five weeks” is a hint to the reasons for the outcome.
It is another matter for conjecture that had Boris identified the the status of a minority government, the inability of a to pass legislation, the importance of being able to present a strong government with clear endorsement to the EU Commission meeting, whether that would have been sufficient justification. A request for prorogation could have leveraged a general election.
Amid the hysteria and rhetoric surrounding Boris’s behaviour, clarity is lost on the legal meaning of the word unlawful: “contrary to or unauthorized by law”. It may be that no law has been broken, simply that the case has not been covered by specific law, therefore a broader constitutional context might need to be decided.
Instead, the Supreme Court has interpreted limits, in its own words: “marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament”.
In short, there has been no evidence to support allegations that Boris “lied to the Queen”. In future, a sufficient case needs to me made to justify a prorogation of unprecedented length.
So where do we go from here?
Implicitly, a further prorogation to allow for a State Opening of Parliament and subsequent Queen’s Speech is allowable. However, a general election before the EU Commission summit is now impossible, before the scheduled date of leaving the EU barely possible.
It now falls upon Her Majesty’s Most Loyal Opposition to determine the constraints under which a general election can take place. It might be assumed that a vote of no confidence should be sought immediately when Parliament is reconvened.
Logistics might dictate otherwise. Two previous attempts to bring about an election, therefore taking responsibility and leadership over Brexit policy, have been turned down by the opposition. Although polls suggest that Boris would lose support if Brexit does not take place by 31st October, they also suggest that no other party is strong enough to gain a majority. Perhaps secretly they have confidence in Boris? What of the Brexit party?
Perhaps ironically, the activities at the conferences that have gone ahead might split the Remain vote. Conservatives could benefit from policies not being laid bare at their own scheduled conference next week. Those who have accused the government of “kicking the can down the road” have only succeeded in kicking the can further down the road.
There are also some intriguing possibilities. Given the legal interventions over procedure, could the government bring some of its own? There are almost certainly constitutional question marks and technicalities that are open to challenge.
Watch this space.