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Defeated, discredited and diminished

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The British Supreme Court’s calling out of PM Johnson’s decision to prorogue Parliament is a constitutional earthquake

A unanimous decision of all 11 judges of the British Supreme Court — the largest constitutional bench possible — has declared Boris Johnson’s decision to prorogue the British Parliament “unlawful, void and of no effect”. The order of the Privy Council to prorogue, which was based on Mr. Johnson’s advice to the Queen, has been “quashed”. The outcome is that “Parliament has not been prorogued”. It never happened.

This is a constitutional earthquake which will rattle the British government and has led to strident demands for the Prime Minister, Mr. Johnson’s resignation. When he returns from New York, where he is attending the UN General Assembly’s annual session, he may find he is forced to resign. The court did not inquire into whether his advice to the Queen was misleading — i.e. a lie — but it has, nonetheless, left him defeated, discredited and diminished.

The case touched on the powers of all the key institutions of Britain’s unwritten constitution. To start with, it defined the powers of Parliament versus those of the judiciary. It also determined at what point the jurisdiction of the legislature ends and that of the executive starts. Finally, it even touched upon the constitutional role of the Queen. As the BBC website put it: “Should the Palace have pushed Downing Street harder as to the reasons for the prorogation?” It is, therefore, hard to think of a more important judicial pronouncement in recent memory.

Judicial split

To understand just how seminal this ruling is, you need to first understand how the issue had split the British judiciary. Earlier two British High Courts had come to opposite conclusions. First, the High Court in London ruled that the Prime Minister’s advice to prorogue is a political issue and, therefore, not justiciable. The courts cannot look into it. However, the Scottish High Court — more correctly known as the Inner House of the Court of Session — took the opposite view. It ruled the Prime Minister’s advice can be reviewed, not on ordinary judicial grounds of review but on fundamental constitutional principles. Parliament’s role scrutinising government, which it called a central pillar of the British Constitution, is one such principle. Therefore, any advice motivated by an intention to stymie Parliament is unlawful.

The government’s defence at the Supreme Court rested on two broad arguments. First, the Prime Minister did not mislead the Queen. Furthermore, since no one other than Mr. Johnson and the Queen know what he said to her, how can a court hold he misled her? Second, even if he is alleged to have done so, prorogation is a political issue and a Prime Minister’s political decisions cannot be questioned by the courts.

Now, in addressing and judging these issues, the court, in effect, reduced them to three key questions. As Lady Hale, the president of the Supreme Court, explained whilst reading the summary judgment, they go to the very heart of the issues at stake. First and foremost, is the advice to prorogue justiciable? The court concluded it is. The judges next addressed whether the prerogative of a prime minister can be inquired into and, again, concluded that it can be challenged on the grounds of its limits. This led to a third question: can the Executive use its prerogative to stop Parliament making laws by exercising that prerogative to determine how long Parliament can function?

It was the answer to this third question that led to the unanimous decision of all 11 judges to declare the prorogation unlawful. The judges decided that the power to prorogue is limited by its effect on the rest of the Constitution. In this case it “prevented parliament from carrying out its constitutional role”. Distinguishing between prorogation and a recess, the Supreme Court said that the former meant Parliament cannot “meet debate or question ministers”. Its conclusion was blunt: “the effect on the fundamentals of our democracy was extreme”.

A somewhat technical second defence from the Prime Minister was also swiftly dismissed The argument that the need for a Queen’s speech to set out new legislation justified prorogation was almost scoffed at. As Lady Hale put it, four to six days should be sufficient for that purpose, not a prorogation of five weeks.

The outcome is striking. Prorogation never happened. The Speaker of the House of Commons and the Lord Speaker must decide what happens next. There is no need for the Prime Minister to do anything. The clock has wound back to the moment before prorogation was ordered.

The road ahead

Finally, where does this leave Boris Johnson? In a place where no British Prime Minister has been put for at least a hundred years. He may well find that his first call on his return from America is to Buckingham Palace to hand in his resignation. If that happens his sole distinction will be to have served as Britain’s shortest-lived Prime Minister.

Up until the Supreme Court delivered its judgment, Mr. Johnson had suggested he would not resign if his prorogation was declared unlawful. But that was before the stinging humiliation of all 11 judges quashing it. No one had predicted such a strong and decisive verdict. For the Prime Minister to carry on as if nothing has happened is likely to be unacceptable to many in his Conservative Party if not also to the British people.

Earlier his office and his lawyers had suggested that if prorogation was struck down, the Prime Minister might prorogue a second time but on different — and, presumably, lawful — grounds. That is still a possibility but it increasingly feels politically mistaken. It would seem to place a humiliated Prime Minister in defiance of the Supreme Court . That is unlikely to appeal to British voters.

Quietly leaving office after his party has quickly found a successor may be the wisest course for Boris Johnson. It also could be least damaging for his Tory party and the Brexit cause.

Karan Thapar is a television anchor

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Printable version | Jan 22, 2020 4:40:42 PM | https://www.thehindu.com/opinion/op-ed/defeated-discredited-and-diminished/article29502384.ece

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