Brexit: the judges take a hand

As you’ve probably heard, the latest twist in the Brexit tale is an unexpected one. Last night, Britain’s supreme court ruled that prime minister Boris Johnson’s advice to the queen to prorogue parliament was unlawful, and that therefore the prorogation itself was void and of no effect.

In striking language, a unanimous full bench of eleven judges – what would, prior to the reform of 2009, have been a full appellate committee of the House of Lords – rejected the claim that a decision to prorogue was not justiciable. The purported prorogation, it said, “was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.”

I confess that I didn’t expect this. I thought that the judgement earlier this month of the Scottish court of session was too adventurous in its use of judicial review to constrain the royal prerogative. But the supreme court went the same way.

There are basically three parts to the judgement. First, the court sets out the legal basis for adjudicating on a use of the prerogative. It distinguishes between a decision about the existence and extent of some prerogative power, and a decision about whether such a power has been lawfully exercised.

In the latter case, it says, questions about justiciability can reasonably be raised. But this case, it says, is in the former category, and there is no doubt that a question about whether a prerogative power exists, or how far it extends, is a matter for the courts – a proposition for which it cites precedents going back to Edward Coke’s decision in the Case of Proclamations in 1611.

Second, the court considers what the limits are to the power of prorogation. Drawing on the principles of parliamentary sovereignty and responsible government (which it calls “parliamentary accountability”, although it’s the executive that is accountable), both of which it takes as fundamental to the British constitution, it lays down the following rule:

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Third, it considers whether or not Johnson’s prorogation failed that test. It finds, with insulting brevity, that “of course” it had the effect of frustrating parliament’s constitutional role, and that it did so with no justification. “It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason …”.

For those interested in constitutional law, this is one of the most fascinating things you will ever see. It is truly a breakthrough in British jurisprudence: never before has a court gone quite so far in enforcing its understanding of the unwritten constitution against the executive.

Its legal reasoning is revolutionary, but it is also solid. It rests on good precedents, and it extends them to cover the modern world, in which “democratic legitimacy” is part of “the foundations of our constitution”. No court could have said that in the seventeenth century, which is why Charles II could with impunity prorogue the Second Exclusion Parliament for twelve months in 1679-80.

It does not, contrary to some of the more excited commentary, take Britain closer to the situation of somewhere like the United States, where the supreme court can strike down legislation on broad philosophical grounds. (Coke actually wanted the ability to do that, but subsequent precedents went against him.) Not only does it affirm the principle of parliamentary sovereignty, it uses it as a foundational principle to derive limitations on the power of the executive.

Nor is it, of course, a “constitutional coup” or anything like one. It stands at the end of a long line of cases in which the courts have put teeth into judicial review and attempted to curtail the power of an over-mighty executive. As the court made very clear, that executive derives its mandate solely from parliament: it has no alternative source of legitimacy that it can set up against parliament’s claims.

What does this do to advance the Brexit debate itself? In the short term, probably not much. Parliament will resume tonight (Australian time), but so far there’s not a lot for it to do; despite the attempted prorogation, it had already legislated to stop an October no-deal exit.

As I see it, there are three important effects in the longer term. First and most obvious, it’s a blow to Johnson’s confidence and prestige. While the court (because it decided it did not need to consider the motives of his advice) did not actually brand him a liar, it certainly stigmatised him as a trickster attempting to evade democratic scrutiny.

No doubt he will try to put a populist edge on that, and portray it as some sort of conspiracy of the elites, but it is bound to hurt.

Second, the decision – and especially its unanimity and uncompromising language – will embolden and give cover to Johnson’s opponents. Not so much Jeremy Corbyn and his circle (who have no great respect for such traditional institutions), but the anti-no-deal rebels in the Conservative Party, both those who have already emerged and those who are yet to declare themselves, will be greatly encouraged.

If there are further crucial votes in the House of Commons to come, expect the majority against Johnson to increase rather than diminish.

The final thing is that the decision shows that the courts are not impressed by the sort of tricks that Johnson specialises in. While the court says that the issue in this case was “a ‘one off'”, it is entirely possible that future moves in the saga will also produce litigation, and that Johnson may again be defending some dubious attempt to put one over on his opponents.

If that happens, we now have a fair indication of which side the supreme court will be on.


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