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Supreme Court judgment on prorogation

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The Supreme Court has this morning ruled that the Government’s prorogation of Parliament was unlawful.

In an unanimous judgment, the Court has held that the suspension of Parliament was something on which it could properly express a view, that prorogation in this case was unlawful because it had the effect of frustrating Parliament in holding the Government to account and that there was no good reason to prorogue for as long as five weeks in the current climate.

In legal terms, the judgment is noteworthy for finding that the Prime Minister’s advice to Her Majesty was justiciable – in other words, that the Courts can rule on the extent of prerogative powers. The Supreme Court rejected the notion that prorogation was simply a matter of politics in which it should not intervene. The fact that the PM was accountable to Parliament does not mean that the Courts have no legitimate role in play. Parliament cannot hold the executive to account while it is prorogued and, in any event, Courts have a duty to give effect to the law even while the PM is accountable to Parliament. The Court also rejected the contention that it was contrary to the separation of powers for the issue to be justiciable, holding instead that it was giving effect to the separation of powers by ensuring that the Government does not use prerogative powers unlawfully.

The Court has said that an unlimited lower of prorogation would be incompatible with the legal principle of Parliamentary sovereignty – because, while Parliament is prorogued, it cannot scrutinise the Government’s actions. Interestingly, it has said that in normal cases – when prorogation is only for a matter of days – no problem arises. But the longer Parliament stands prorogued for, the greater the lack of Parliamentary sovereignty and so the greater the risk of unaccountable Government. Whether the effect of a particular prorogation is to frustrate Parliament is a question of fact. If the effect is indeed to frustrate Parliament in its role then the question is then whether the Government can provide a reasonable justification for the prorogation. The Court has recognised that a degree of latitude needs to be given to the Government to demonstrate that.

In this case, the PM’s advice to Her Majesty was not lawful. By standing down Parliament for five weeks in a key period running up to exit day on 31 October, Parliament’s role was frustrated. The Court said it heard no reason (let alone a good reason) for a five week suspension.

In political terms, the clamour for the House of Commons to reconvene without delay is loud. Next steps and the consequences for Brexit remain uncertain. The Government may wish to try again to engineer an early election in the hope of achieving a Parliamentary majority. In the days before the Fixed-term Parliaments Act (FtPA), calling an election would be another matter of prerogative powers, but a two-thirds majority of MPs is now necessary to circumvent the Act. Opposition MPs have so far refused to provide that majority for an early poll. The Government may also be thinking about primary legislation to overturn the FtPA – only a simple majority is necessary for that. The other route to overcome the FtPA is a no confidence vote but, even if the House of Commons has no confidence in the Government, it is unclear whether an alternative administration could command confidence, or whether, for political reasons, opposition parties want to go to the country at this stage. They may prefer to force the PM to request an extension from Brussels so as to avoid a no deal exit on 31 October. The European Council meeting on 17-18 October remains a key date and may provide some clarity on whether a new deal can yet emerge. In any event, the force of the Supreme Court’s unanimous judgment today may make it very difficult for the Government to contemplate a further prorogation in the run up to 31 October.

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