The UK Supreme Court has ruled that British prime minister Boris Johnson acted unlawfully when he decided to prorogue parliament for five weeks, plunging Britain into a constitutional crisis. And, Boris Johnson, the humiliated prime minister, flies back from New York to face MPs’ fury after the court ruling. As decision to shut parliament is quashed, the humiliated PM says he disagrees.
Lady Hale, President of the UK Supreme Court, delivering the judgment on Tuesday said that Johnson’s advice to Her Majesty [the Queen] was “unlawful, void and of no effect”.
There were audible intakes of breath when she said Johnson’s advice to the Queen to suspend parliament was, “unlawful, void and of no effect”.
All 11 Judges were unanimous in ruling that the UK parliament ostensibly has “not been prorogued” and that the prime minister prevented lawmakers from carrying out their duties.
The Scottish National Party’s Joanna Cherry, who had her case against the suspension of parliament heard by the court, insisted Johnson should now “do the decent thing and resign.”
In what was essentially a damning indictment of Johnson’s judgement as British PM, Lady Hale explained that the “effects on the fundamentals of democracy was extreme” with this unlawful act.
Delivering judgment, Hale said: “The question arises in circumstances which have never arisen before and are unlikely to arise again.”
Then, giving the court’s judgment on whether the decision to suspend parliament was legal, Hale said: “This court has … concluded that the prime minister’s advice to Her Majesty [to suspend parliament] was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect should be quashed.
Hale said: “This means that when the royal commissioners walked into the House of Lords [to prorogue parliament] it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.”
Hale continued: “It is for parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next. Unless there is some parliamentary rule of which we are unaware, they can take immediate steps to enable each house to meet as soon as possible. It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel has told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.”
She added: “The court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.”
The court in London was told that the government has not been able to justify the length of prorogation.
The judgment declares: “This court is not … precluded by article 9 [of the bill of rights] or by any wider parliamentary privilege from considering the validity of the prorogation itself … That advice [to the Queen] was outside the powers of the prime minister to give it. This means that it was null and of no effect.”
The judgment said: “This was not a normal prorogation in the run-up to a Queen’s speech. It prevented parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on 31 October.
“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.
“Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.”
The court stopped short of declaring that the advice given by Johnson to the Queen was improper. It was a question. They said, they did not need to address since they had already found the effect of the prorogation was itself unlawful.
The UK government had argued that prorogation was not an issue for the courts, but critics claimed Johnson was trying to limit the amount of time lawmakers could have to scrutinize the PM’s Brexit policy.
The UK Parliament was suspended on September 9 and MPs were not due to reconvene until October 14 – with Brexit deadline day fast approaching.
The unanimous judgment from 11 justices on the UK’s highest court followed an emergency three-day hearing last week that exposed fundamental legal differences over interpreting the country’s unwritten constitution.
Unusually, none of the parties was provided with advance copies of the judgment due to its sensitivity. Only seven of the 11 justices who heard the case were present in court.
The first legal question the judges had to resolve was whether the prime minister’s decision – exploiting residual, royal prerogative powers – was “justiciable” and could consequently be subjected to scrutiny by the courts.
The English high court declined to intervene; the Scottish appeal court concluded that judges did have legal authority to act. The Supreme Court supported the Scottish interpretation.
“Constitutional coup”
Jacob Rees-Mogg, the leader of the House of Commons, who travelled to Balmoral to formalize the decision to suspend parliament with the Queen, reportedly told colleagues on a cabinet conference call that the Supreme Court judgment was a “constitutional coup”.
Cheers
Dozens of remain supporters who had been waiting in the rain outside the supreme court since early morning erupted into cheers as news of the ruling filtered through.
Despite torrential rain, the first members of the public began queueing outside for seats in the Supreme Court at 5.20am on Tuesday eager to be present for the historic decision.
Boris must resign
The Scottish National party’s Joanna Cherry, a barrister who was among those who challenged the prorogation in Edinburgh, was first out to give her reaction. “There is nothing to stop us, myself and my colleagues, immediately resuming the important job of scrutinizing this Tory government, which has us hurtling towards Brexit,” she said. “Boris Johnson must have guts for once, and resign.”
Gina Miller, who had taken the case to the supreme court, then emerged, flanked by lawyers and others.“Today is not a win for any individual or court,” she said, reading a prepared statement. “It’s a win for parliamentary sovereignty.”
“The prime minister must open the doors of parliament tomorrow,” she added.
Traitor
There were jeers and booing from a handful of far right activists from the For Britain Party, who chanted “traitor” as the SNP parliamentary leader, Ian Blackford, gave interviews nearby. “We love you Boris, we do,” they sang.
Speculation before the ruling was that the court would find against the prime minister; that they were unanimous came as a surprise.
Neither of the two main lawyers who represented the government, Lord Keen QC and Sir James Eadie QC, were in court to hear the news of their crushing defeat.
James Libson, the solicitor at the law firm Mishcon de Reya, who represented Miller in this case, said: “This second success for our client Gina Miller in the supreme court is a testament to her resolve to take whatever steps are required to ensure executive overreach does not become a feature of our democracy. This case shows that our courts can be relied on to hold the executive to account when necessary and is evidence of the robustness of our system of separations of powers.”
Critical importance
Elaine Motion, the senior solicitor with the Edinburgh law firm Balfour+Manson, who represented Cherry and the 75 other petitioners in the Scottish case, said the ruling upheld the “critical importance” of the sovereignty of parliament.
In a statement, Motion said: “It is a huge vindication for the parliamentarians who led the way with the challenge in Scotland and an even more significant reinforcement of the critical importance of the rule of law and the sovereignty of parliament. Hopefully parliament can now get back to its essential work.”
Historic
Labour’s Ian Murray, one of the MPs who brought the case in Scotland, described the result as “historic” and an “astonishing rebuke to Boris Johnson for his disgraceful behaviour”.
The wording of the judgment is unusually clear and forthright. While securing the absolute supremacy of parliament over the government or executive, it marks a significant moment in asserting for the judiciary an enhanced position within the UK’s unwritten constitution. Some will see it as a further advance in the Supreme Court’s development into a constitutional court.
“Forbidden territory”
Government lawyers had told the court, which sits in Westminster directly opposite parliament, that the justices should not enter into such a politically sensitive area, which was legally “forbidden territory” and constitutionally “an ill-defined minefield that the courts are not properly equipped to deal with”.
Policing the executive
Eirik Bjorge, professor of law at Bristol University, said: “The court has shown that in extreme circumstances it is not afraid of policing the executive even in the middle of what used to be referred to as forbidden territory for judges: high policy and the royal prerogative.”
A humiliated Boris
A humiliated Boris Johnson has been forced to cut short a set-piece visit to New York and fly back to face furious MPs, after his decision to shut down parliament was dramatically quashed by the Supreme Court.
After Lady Hale delivered a crushing unanimous verdict in which she said Johnson’s advice to the Queen to suspend parliament was, “unlawful, void and of no effect”, the prime minister struck a defiant tone.
“Let’s be absolutely clear that we respect the judiciary in our country and we respect the court. I disagree profoundly with what they had to say,” he said, before pressing ahead with a planned speech on the business links between the UK and the U.S.
Johnson, who has lost a series of Commons votes since becoming prime minister, is due to arrive in London around lunchtime on Wednesday after an overnight flight back from the UN general assembly.
However, a government official in New York with the prime minister said it was impossible to say whether Johnson would appear before the Commons.
“I would anticipate there would be statements to the house, I’m just not in a position to say what they will be on,” the official said.
Downing Street’s response to the crisis was inconsistent, with one part of the operation claiming that Johnson was infuriated by the position in which he found himself and another senior source claiming that the clash with the courts was not unhelpful to his narrative that he was fighting for Brexit against an obstructive establishment.
But a No 10 source criticized the 11 Supreme Court judges, saying they had made “a serious mistake in extending its reach to these political matters.”
Downing Street suggested the prime minister would continue to push for a snap general election, while opposition parties attempted to inflict maximum embarrassment on Johnson.
“In the coming days parliament is likely to be put on the spot to see if it will have an election or whether it will continue to keep the country in zombie-parliament stasis. The only way out is an election and they will be given another opportunity to let the public decide if and when we leave the EU,” said a No 10 source.
Opposition MPs are determined to force Johnson to face questions in parliament, after the Speaker, John Bercow, announced from College Green in Westminster that the House of Commons would reconvene on Wednesday morning.
Corbyn
Jeremy Corbyn, the Labour leader, was consulting with fellow opposition leaders on Tuesday evening about how to exert maximum pressure on the prime minister and ensure he cannot escape the legal obligation set out in the Benn bill to delay Brexit if he has not passed a deal by October 19.
The Labour leader, who on Tuesday delivered his conference speech 24 hours early after the decision to recall parliament, was not expected to take the nuclear option of tabling a vote of no confidence in the prime minister immediately, but MPs were exploring ways of forcing Johnson to extend article 50.
Corbyn would be unlikely to secure the support of Liberal Democrat or rebel Tory MPs in a no-confidence vote, unless a no-deal Brexit has been definitively ruled out – which many MPs believe means after Johnson has requested a Brexit delay.
However, Johnson has repeatedly insisted that he has no intention of asking for an extension if he has failed to secure a majority for a Brexit deal by October 19.
Labour has twice voted against motions tabled by the prime minister calling for a snap poll, and Downing Street has sought to portray Corbyn as part of a Westminster elite trying to block Brexit.
Corbyn threw that language back at Johnson in his conference speech on Tuesday, claiming the prime minister is “part of an elite that disdains democracy”.
At Labour’s annual conference in Brighton, MPs and party strategists crowded around television screens to watch Lady Hale deliver the court’s unanimous verdict.
Corbyn made a speech from the conference stage almost immediately, calling on the prime minister to resign.
He then brought forward his party conference speech to Tuesday afternoon, using it to issue a rallying cry to activists and prepare the ground for a general election.
Trump backs Boris
The UK prime minister flatly rejected the idea that he could resign over the defeat, and was backed up by Donald Trump, when the pair held a joint press briefing in New York. Asked if he might step down, Trump said: “I’ll tell you, I know him well, he’s not going anywhere.” Johnson added: “No, no, no.”
Trump went on to say the reporter concerned had asked “a very nasty question”.
The shadow Brexit secretary, Keir Starmer, said the attorney general, Geoffrey Cox should also appear in the Commons to face questions from MPs.
“The prime minister needs to consider his position. He needs to come to parliament straight away and make a statement so we can question him.
Amid the confusion, Downing Street moved to try and shore up the position of Cox, whose legal advice saying prorogation was lawful was leaked.
“Geoffrey Cox is doing an excellent job and is no way, shape or form to blame for anything that happened,” a No 10 source said.
Conservatives’ conference
The Conservatives are due to hold their own annual conference in Manchester next week, with Johnson’s setpiece speech scheduled to clash with prime minister’s questions.
The government would have to win a vote in parliament if it wanted to call a recess to allow Tory conference to go ahead.
There were also mixed messages from Johnson’s inner circle over how far to go in attacking the supreme court judges and accusing them of becoming political, with Robert Buckland, the justice secretary, urging that they should be respected.
The prime minister’s official spokesperson downplayed the idea that the judges had interfered in politics, but another No 10 source said: “We think the Supreme Court is wrong and has made a serious mistake in extending its reach to these political matters. Further, the Supreme Court has made it clear that its reasons are connected to the parliamentary disputes over, and timetable for, leaving the European Union. We think this is a further serious mistake.”
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