House of cards

by: in Law

With Prime Minister Boris Johnson facing stiff opposition to his signature Brexit policy, he suffers a momentous defeat in the United Kingdom Supreme Court. How did it happen? What was the reasoning of the judges, and what are the implications of the verdict?

Every time a nation’s highest court is about to deliver a judgment on a major case, the tension right before the entrance of the tribunal can be cut with a proverbial knife. The uncertainty contributes to the sense of significance and, in some cases, history. The gravity of the moment is intangible and, yet, prevalent in the courtroom. Whether it was during the decisions in Brown v Board of Education and Roe v Wade of the United States Supreme Court, Sabena v Defrenne verdict of the Court of Justice of the European Union or the Lisbon judgment of the German Federal Constitutional Court - history was very much on the minds of everyone concerned. In uncertain times when the course of history is anything but fixed, the spotlight shines ever more brightly on moments like this. Yesterday’s judgment of the UK Supreme Court in Miller v The Prime Minister was no exception. Coming in the wake of the latest convulsions of the crisis engulfing the United Kingdom ever since the fateful 2016 national referendum, this latest instalment of judicial history was yet another reminder of the momentous nature of the Brexit project - and the changes it has brought about even before the United Kingdom has officially left the European Union.

The proceedings before the Supreme Court originated in the ascension of former London mayor Boris Johnson to the role of Prime Minister and Conservative Party leader in July 2019. Johnson, who had vigorously (and, some may say: opportunistically) campaigned for the United Kingdom’s withdrawal from the European Union in the run-up to the 2016 Brexit referendum, had not been swept to power in a general election; instead, he won office by convincing a two-thirds majority of the approximately 140,000 active members of the Conservative Party to elect him leader. His central pledge? To complete the mission he started in June 2016 and lead the United Kingdom out of the European Union — come what may, if necessary without a formal Withdrawal Agreement with the European Union. Such a “No Deal” scenario could plausibly result in the United Kingdom suffering major economic damage, as evidenced by a range of expert opinion (including independent projections predicting a loss of up to 11% of the country’s Gross Domestic Product — catastrophic in economic terms, to put it diplomatically). The nationalist wing of the Conservative Party, which has gained increased influence since the 2016 referendum victory by the Leave side, has always dismissed these warnings as harbingers of supposedly unwarranted panic. Mr Johnson has been very eager to join in the “fake news” chorus and dismiss any and all credible warnings as failing to “believe in Britain” — forgetting that wishing away facts was no panacea to the cold, hard truth: the United Kingdom is and remains at a major negotiating disadvantage vis-à-vis the European Union, stands to suffer far more by failing to reach a Withdrawal Agreement and does not even have a credible plan for the post-withdrawal era. Whether under former Prime Minister Theresa May (“Brexit means Brexit”) or Johnson (“We will make Brexit a titanic success!”), Her Majesty’s Government has failed to produce a credible, viable plan for a post-Brexit future that would not expose the United Kingdom to severe and irresponsible risks. Mr Johnson’s calculations are neither economic, nor cultural, nor even legal in nature — instead, they are squarely political. His predecessor, Mrs May, has tried three times to pass the Draft Withdrawal Agreement she had negotiated with the EU — and failed, three separate times. Consequently, she had to accept an extension to the negotiations with the European Union until 31 October 2019.Since failing to deliver Brexit (the original Brexit date), the Conservative Party has gotten under pressure by the upstart hard-right, nationalist Brexit Party, led by Nigel Farage, a man so anti-establishment that he has been a Member of the European Parliament since 1999, drawing a sizable salary from the very European Union he purports to hate). That, and a perennial candidate who failed to get elected to the UK House of Commons seven consecutive times. In the low-turnout (just 37% of registered voters even voted), thus meaningless European Parliament election in the UK, the Brexit Party carried 30.5%. This raised the spectre of this extremist party stealing many votes of dissatisfied 2016 Leave voters from the Conservatives.

With Theresa May failing to enact the Draft Withdrawal Agreement she had negotiated, she had to swiftly announce her resignation — to be duly succeeded, after an unseemly, overtly long and self-indulgent leadership campaign, by Johnson. Johnson quickly embarked on a confrontational strategy and promised to leave the European Union, do-or-die, by the new proposed withdrawal date, 31 October. Part of that strategy was minimizing his exposure to parliamentary scrutiny. With the majority of Parliament clearly resolved to prevent the United Kingdom crashing out of the European Union, Johnson resolved to curtail parliamentary time — time that could conceivably lead to his hands being tied, to Brexit being severely softened (for example by requiring membership of the Single Market and/or the Customs Union) or being subjected to a second national referendum (with polls deeming a Remain victory to be in the realm of plausibility). Consequently, Mr Johnson used an old reserve power of the Crown, the royal prerogative, to prorogue (suspend) Parliament. His excuse? A new Queen’s Speech, a speech by Queen Elizabeth II that would purportedly set out the new legislative programme. The problem with the prorogation? Instead of just taking a few days (usually standard between two sessions of Parliament), it would extend to several weeks — from 9 September until 14 October, shutting down all parliamentary business for the duration. All this in the midst of the run-up to the most radical change to the United Kingdom’s political, economic, diplomatic and cultural fabric since its accession to the then-European Economic Community in 1973.

The Supreme Court began its judgment by explaining the nature of prorogation — essentially how it brings all parliamentary business to a halt (new/pending legislation; oral/written questions/debates) in preparation for a new session of Parliament (para 2 of the judgment; with sessions usually lasting one year, sometimes a bit more/a bit less). Prorogation is a formality, with the monarch (in our case: Queen Elizabeth II) acting on advice of the sitting Prime Minister, with no discretion in the matter (para 3). The Supreme Court is also careful to distinguish prorogation from a dissolution of Parliament (which ends the life of the sitting Parliament until the election of a new Parliament; and the swearing-in of the new MPs), as well as an adjournment and a recess (paras 5 and 6, respectively). The Supreme Court then proceeds to succinctly summarize the history behind the suspension of Parliament, starting with the narrow Leave victory in the 2016 national referendum, all the way to the resignation of Theresa May and the assumption of office by Boris Johnson (paras 7–14).The Supreme Court then examines the background to the suspension of Parliament on 9 September 2019. In the course of its judgment, the Supreme Court considered two memoranda written by Nikki da Costa, the Director of Legislative Affairs to the Prime Minister. In the first one, she recommended the suspension of Parliament — confirmed by Johnson by means of ticking a box signalling approval of prorogation. The Prime Minister appended handwritten comments to the first memorandum, playing down the nature of the prorogation as routine. The second memorandum set out the precise arrangements needed to formally execute the prorogation of Parliament (paras 17–19).

The Prime Minister subsequently informed Cabinet and Conservative MPs, under the guise of needing to prorogue Parliament for a Queen’s Speech. This was followed by Parliament passing the Benn Act (formally: the European Union (Withdrawal) (№2) Act 2019), requiring the Prime Minister to request a formal extension of the negotiation period under Article 50(3) of the Treaty on European Union unless a UK/EU Withdrawal Agreement has been ratified by Parliament by 19 October. (paras 20–22). In the run-up and immediate aftermath of the prorogation of Parliament, two separate cases made their way up the United Kingdom’s judicial architecture: the first one, via the Scottish courts, led by the Scottish National Party MP and senior lawyer Joanna Cherry QC; the second one, via the English courts, led by pro-Remain campaigner and businesswoman Gina Miller (who had already scored a momentous victory before the Supreme Court in 2017, when she secured Parliament’s right to vote on the formal withdrawal request under Article 50(1) TEU). The Inner House of the Scottish Court of Sessions allowed the Cherry appeal (thus holding prorogation to be unlawful). Meanwhile, the High Court of England and Wales disallowed the Miller appeal — but did not pronounce itself on the merits, merely holding the issue non-justiciable. The stage was thus set for the United Kingdom Supreme Court, the nation’s highest court to set out its view on the legality of Prime Minister Johnson’s suspension of Parliament (paras 23–26).

The Issues
There were four (partially overlapping) issues before the Supreme Court (para 27)

1. Can the Supreme Court even decide on the prorogation?
2. If yes, by what standard does the legality of prorogation need to be judged?
3. Measured by that standard, was the prorogation lawful?
4. If it was not lawful, how should the Supreme Court rectify the defect caused by the prorogation?

Can the Supreme Court even decide on the prorogation?
Counsel for Her Majesty’s Government had argued that the issue belonged to the realm of politics, and that the rightful place of the courts was well away from said perimeter. At the outset, the Supreme Court noted four issues: first, that prorogation was part of the Crown’s vestigial powers, now exercised by Her Majesty’s Government under the umbrella of the royal prerogative; second, the mere fact that elected officials are involved in (politically) controversial conduct does not necessarily render it non-justiciable; third, the courts do have a role to play in ensuring Her Majesty’s Government remains accountable to Parliament; fourth, tied into the role of courts giving effect to the law, the courts regarding the issue as justiciable would not violate the separation of powers (as claimed by Her Majesty’s Government). (paras 30–34). The existence of the prerogative power having been confirmed, the Supreme Court confirmed that issues regarding both the legal limits of a prerogative power were very much within the justiciable realm of the courts (para 36). Eventually, the Supreme Court held the issue to be justiciable (para 52).

If yes, by what standard does the legality of prorogation need to be judged?
The Supreme Court then resorted to a review of the fundamental principles of the constitutional arrangements of the United Kingdom in order to determine the second issue — namely the standard by which the legality of prorogation would need to be judged. Affirming the judiciary’s role in protecting the principles and values underpinning the country’s constitutional architecture, the Supreme Court underlined that these were contained in both Acts of Parliament and the common law. Such principles would not only apply to the operation of statutes, but also the prerogative powers exercised by Her Majesty’s Government on behalf of the Crown (paras 38–40). The Supreme Court deemed two principles to be pivotal in this regard: parliamentary sovereignty and parliamentary accountability. The principle of parliamentary sovereignty requires legal limits upon the executive’s power to suspend Parliament — otherwise prorogation could be used as a tool to circumvent the supremacy of the legislature in the constitutional arrangements of the United Kingdom.Likewise, the principle of parliamentary accountability necessitates that Her Majesty’s Government remain subject to scrutiny by Parliament (through written and oral questions, appearances before parliamentary committees, as well as debates and the enactment of legislation, to name a few examples). (paras 41–47).

In this context, the length of the prorogation becomes a major factor. The Supreme Court emphasizes that “the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model” (para 48). Referring to standing jurisprudence (in relation to statutes) examining the effect of a statute upon established constitutional principles (para 49), the Supreme Court concludes that the limit upon the power to suspend Parliament is reached when prorogation effectively results in the frustration or prevention (without reasonable justification) of Parliament’s ability to legislate and hold Her Majesty’s Government to account (para 50). Applying this principle would require, according to the Supreme Court, a careful consideration of the facts, as well as a recognition that sufficiently serious circumstances would be required for the courts to interfere with the Prime Minister’s power to exercise the royal prerogative to prorogue Parliament (para 51).

Measured by that standard, was the prorogation lawful?
The Supreme Court recalls that the legitimacy of Her Majesty’s Government rests on the principles of representative democracy. Unlike in other countries, the Prime Minister and his cabinet do not derive their mandate from the people, but by virtue of (usually) commanding a majority in the House of Commons. The Prime Minister’s action was deemed to interfere with the constitutional functioning of the House of Commons, especially given the fact that the prorogation was not conventional or routine by any standards — especially by curtailing parliamentary time prior to the proposed Exit Day on 31 October from eight to a mere three weeks. Account has to be taken of the exceptional circumstances occasioned by the United Kingdom’s imminent (proposed) withdrawal from the European Union. Considering the Prime Minister’s parliamentary defeats on crucial votes, the Supreme Court felt that Mr Johnson evidently lacked the support of the House of Commons on a signature issue — and that made it all the more important that he face Parliament to face legislative scrutiny of his plans (paras 56–57). The Supreme Court turns to the reasonable justification for a proposed prorogation of five weeks, once again recalling the first memorandum by Nikki da Costa (see above). The Da Costa proposal failed to take into account the time needed to possibly approve a Withdrawal Agreement under section 13 of the European Union (Withdrawal) Act 2018, governing the parliamentary approval of any UK/EU Withdrawal Agreement, as well as necessary primary and delegated legislation, paired with committee scrutiny and consultations with the devolved administrations in Scotland and Wales (para 60).

If it was not lawful, how should the Supreme Court rectify the defect caused by the prorogation?
The Supreme Court then rejected the Government’s argument that prorogation was a parliamentary proceeding beyond the review of the courts. The Supreme Court underlined that prorogation did not constitute a parliamentary procedure, but was instead imposed upon Parliament by the Crown. Parliament cannot vote for or against prorogation. (para 68).

Resulting from the observations on all four issues, the Supreme Court held the advice of the Prime Minister to the Queen, the Order-in-Council ordering the prorogation, as well as the prorogation itself to be illegal and be null and avoid. In other words, Parliament was never validly prorogued and will conceivably resume its business later today.The judgment by the nation’s highest court, unanimously rendered, is a humiliating and devastating blow to Mr Johnson who has thus far blustered (and blundered) his way through office. The verdict marks another instance of the balance of power shifting towards Parliament — first via the Miller case (on the need for parliamentary approval for the notification, under Article 50(1) TEU, of the United Kingdom’s proposed withdrawal from the EU) and now under Miller/Cherry. A long prorogation as a political tactic has been effectively put into cold storage, although the Supreme Court was very careful to emphasize that it was not pronouncing on the merits of withdrawing from the European Union — which remains a profoundly political issue. The judgment also cements the Supreme Court’s willingness to defend the prerogatives of Parliament against executive overreach. Given its unanimity and clarity, the verdict cannot be conceived as anything other than a powerful rebuke of Prime Minister Johnson’s government. Whilst a resignation is not likely anytime soon, this judgment, as well as his numerous parliamentary defeats could be used as precedent cases for a possibility that is currently not being discussed — his dismissal by Queen Elizabeth II. There is one precedent for that, namely the 1975 Australian constitutional crisis. In that crisis, the sitting Prime Minister Gough Whitlam possessed a majority in the lower chamber, the House of Commons and had not been accused of an illegal act in office — Mr Johnson’s tenure does not compare favourably in this regard, to put it mildly.
Rather than using the opportunity offered by becoming Prime Minister to change the toxic narrative of the Brexit debate since 2016 and attempt to rally a genuine cross-party, national consensus around the United Kingdom’s future relationship with(in) the European Union, Mr Johnson preferred to remain to form: mendaciously portraying Brussels as the root of Britain’s problems — which is, despite many a real problem at the heart of the European Union, intellectually as vacuous as it is dishonest. Having antagonized his European partners through his disgraceful conduct as a leading campaigner for the Leave side in 2016, as well as a sub-par and unimpressive performance as Foreign Secretary, Mr Johnson has already secured a place in history: as the man with a 100 per cent loss record in the House of Commons and the first Prime Minister who deceived the sitting monarch as to the purposes of a suspension of Parliament, which was then declared illegal by the Supreme Court. Quite a record in a few weeks. Whether it bodes well in the post-truth atmosphere turbocharged by Brexit remains to be seen. The cleanest, the safest, the most legitimate way to resolve this issue is simple: a second national referendum to test that much-vaunted “will of the people” once more. If the Leave side is so confident about the merits of its case, what is it afraid of?The Brexit saga is far from over, and may yet take many more twists and turns. Stay tuned.

  More blogs on Law Blogs Maastricht, image by Flickr: Down, but not quite out (yet): Prime Minister Boris Johnson (Conservative) (source)​