In Depth

Prorogation unlawful: will Boris Johnson resign?

Panel of 11 judges finds PM’s advice to the Queen was ‘unlawful, void and of no effect’

Boris Johnson’s decision to suspend Parliament has been ruled unlawful by 11 judges in the Supreme Court.

Announcing the judgment this morning, Lady Hale said the case was a “one-off” that came about “in circumstances which have never arisen before and are unlikely to ever arise again”.

So how did the case emerge?

On 9 September, Johnson suspended Parliament until 14 October, the longest prorogation since 1945. He was accused of trying to avoid parliamentary scrutiny of his plans to leave the EU by 31 October with or without a deal.

Scotland’s highest civil court ruled the suspension unlawful, but - in a “diametrically opposed ruling” - London’s High Court backed the government, reports The Telegraph.

The main claimant in the English case was pro-EU businesswoman Gina Miller, while the Scottish case was brought by a cross-party group of more than 70 MPs led by SNP politician Joanna Cherry QC. Former prime minister John Major and Labour’s shadow attorney-general Shami Chakrabarti were also given permission to take part in the case against the Government.

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What arguments were made during the hearing last week?

Political issue: The written case for the PM argued that the length of Parliament’s prorogation was “intrinsically one of high policy and politics, not law”.

The High Court of England and Wales agreed with that stance in a ruling earlier this month, saying the issue was “political” and therefore a “non-justiciable exercise of prerogative power”.

“It is not a matter for the courts,” said the High Court judges.

However, Scotland’s Court of Session thought otherwise. Lawyers for the SNP’s Cherry said the justification for suspending Parliament must be “subject to anxious scrutiny” by the courts “precisely because Parliament has no say as to when, how, and for what period the executive might choose to suspend or close down Parliament”.

Miller argued that if Johnson won the case, the courts would have no power in the future to stop a prime minister from suspending Parliament for a year or longer, irrespective of their motives.

This would be incompatible with the rule of law and the basic principle that “the executive is answerable to Parliament and not vice versa”, according to Miller’s written submission.

Timing: “While the act of prorogation, which tees up a Queen’s Speech to introduce a new legislative period, is not controversial in itself, opponents have said the timing in the run-up to the Brexit deadline has been used to shut out MPs,” reported PoliticsHome.

Miller’s team insisted “time is very much of the essence” in light of the Brexit deadline of 31 October.

Johnson’s legal team argued that Parliament has still had time to sit, before 9 September and after 14 October, and could use those periods “for any purpose, including legislating at pace, if it wishes”.

“Recent events could not more graphically illustrate that fact,” they said, referring to a new law enacted before prorogation began that forces the PM to accept an extenstion of Article 50 if no Brexit deal is agreed.

Motivation: Johnson’s team insisted the reasons for his prorogation were “neither irrelevant nor illegitimate”.

They repeated that the Government wanted time to effectively set out its new legislative agenda in a Queen’s Speech, and to end the “extraordinarily long previous Parliamentary session in a practical way”.

Miller argued that no “rational reason” had been given for the length of prorogration, which is the longest in 40 years, and urged the judges to consider the general public law on abuses of power.

Cherry accused the PM of using the power “in bad faith”. Internal government documents have revealed Johnson’s reasons for the suspension to be “simply untrue”, calling into question the lawfulness of the action, said her lawyers.

Indeed, the Scottish court ruled that Parliament was prorogued to “stymie Parliamentary scrutiny of the executive regarding Brexit”.

Johnson’s opponents insisted that the Government must be accountable to Parliament, which was elected by the public and is therefore accountable to the people.

Cherry’s lawyers said: “To claim otherwise is not to uphold democracy in this country, but to attempt to establish populism.”

What did the Supreme Court rule?

Reading out the judgment this morning, Lady Hale said the 11 judges were unanimous in their agreement that the matter is justiciable, meaning it comes under the jurisdiction of the courts.

The government failed to justify the length of the prorogation, she said, adding: “The effect on the fundamentals of democracy was extreme.”

The court is “bound to conclude that the decision to advise Her Majesty to prorogue parliament was unlawful”, she said.

What happens next?

Lady Hale said Johnson’s advice to the Queen was “unlawful, void and of no effect” and therefore Parliament has not been suspended. She said it is up to Parliament to decide what to do next.

Speaker John Bercow has said the House of Commons must “convene without delay” and several MPs suggested they would return to Westminster.

BBC home affairs correspondent Dominic Casciani says the ruling was “the worst outcome for the prime minister”.

Ahead of the ruling, Johnson, who is currently at the UN General Assembly in New York, insisted he would not resign if the court sided against government.

Former attorney general Dominic Grieve, who was recently sacked from the Tory party, was among those to say that Johnson’s position would be “untenable” if he is found to have misled the Queen over prorogation.

“I hope it would be untenable not just because of the opposition, because every member of the Conservative that believes in our constitution would simply say, ‘it’s over’,” Grieve said.

Liberal Democrat leader Jo Swinson said the decision confirms that Johnson “isn’t fit to be prime minister”.

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