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The United Kingdom Supreme Court annuls the suspension of Parliament: What are the implications for Brexit?

By Gerhard Erasmus
07 Oct 2019
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The United Kingdom Supreme Court annuls the suspension of Parliament: What are the implications for Brexit?

Brexit has rewritten many of the rules of the game for British politics and constitutional law. It has just added another chapter of major importance to this saga. On 24 September 2019, the Supreme Court of the United Kingdom ruled, in a unanimous judgment by all eleven Supreme Court Judges, that Boris Johnson’s prorogation of Parliament was unlawful. Commentators described this as a “stunning defeat” for the Prime Minister.

Mr. Johnson is the Prime Minister (PM) of the United Kingdom (UK) since 24 July 2019, after Theresa May resigned. Parliament repeatedly rejected her draft agreement to implement the 2016 British referendum result (adopted by a majority of 51.89%) to leave the European Union (EU). After his election as PM, Mr. Johnson announced he will try one more time to secure a new withdrawal agreement but if that fails, the UK will exit from the EU by the end of October 2019, “come what may”. Brexit would then happen by default because the latest extension by the EU to conclude a withdrawal agreement and secure an “orderly Brexit”, expires on 31 October 2019. He was adamant that no further extensions would be requested.

Exiting without a withdrawal agreement (and without the two-year transition period in which to work out the future EU-UK relationship) is known as a “hard Brexit”. Under this scenario UK firms will immediately start trading with the EU (the UK’s most important trading partner in goods as well as services) and with the rest of the world under the more stringent rules and higher tariffs of the World Trade Organization (WTO). New preferential trade agreements would have to be negotiated from scratch, a process which can take years. (The recent EU-Canada trade deal took seven years to finalize.)

The majority of British Parliamentarians are against a hard Brexit, also known as a “no-deal Brexit”. In early September an alliance of opposition MPs and Conservative rebels passed a law which requires the Government to seek an extension to the UK’s EU membership if he fails to secure a Brexit deal at the EU Council meeting of October 17-18. Under the Benn Act (proposed by Labour MP Hilary Benn) Mr Johnson must ask for an extension if he fails to secure parliamentary approval for a Brexit deal by October 19.

That put Mr Johnson on a collision course with Parliament. He strongly objects to the backstop provision in Mrs May’s draft withdrawal agreement but has limited time (nor much enthusiasm) to work out new proposals to address a very complicated matter. He must convince the EU that his plan for future customs procedures at the border between Northern Ireland and the Irish Republic will properly cater for post Brexit needs (when there must be borders between the EU and the UK) as well as sufficient freedom of movement to preserve the peace in Ireland. If Brussels cannot be satisfied, there will not be an orderly Brexit. And there will be a hard border between Northern Ireland and the Republic of Ireland. The Good Friday Agreement (which in 1998 put an end to 30 years of Northern Ireland’s troubles) will be in danger. A hard Irish border after Brexit threatens the Irish peace process.

But Mr. Johnson had a plan. At the end of August he requested the Queen to suspend (prorogue) Parliament from 9 September until 14 October. This prompted an uproar from the Commons, especially from MPs who had planned to block a no-deal Brexit. Court applications to set aside the prorogation of Parliament followed in the High Court of England and Wales and in the Court of Session in Scotland.

The question was whether the advice given by the PM to the Queen that Parliament should be prorogued was lawful. The High Court of England and Wales ruled that since the power to prorogue Parliament is a prerogative, it was not justiciable in a court of law. The merits cannot be examined. The Court of Session in Scotland ruled the opposite. It found that the PM’s decision was motivated by the improper purpose of stymieing Parliamentary scrutiny of the Government. Any prorogation which followed it, were unlawful, void and of no effect. Both these judgements were then appealed in the UK Supreme Court.

What is the prerogative about? The term prerogative (royal prerogative) refers to powers which are unique to the sovereign. They belong to the Monarch but are exercised by the PM. They have traditionally been viewed as of high political nature and not reviewable in a court of law. 

How did the UK Supreme Court decide these appeals?The PM’s lawyers followed the traditional path and simply argued that the prerogative is never justiciable. The courts would enter a “minefield” if they would rule over the exercise of prerogatives. The other side wanted the Court to determine the lawfulness of the prorogation of Parliament.

The Supreme Court was at pains to emphasize that this case was not about when and how the UK leaves the EU. The only issue was whether the advice given by the PM to the Queen that Parliament should be prorogued, was lawful; and the legal consequences if it was not.

The first question was whether the lawfulness of the PM’s advice to the Queen was justiciable. This Court held that it was. It did not say that the PM had an improper motive of stymieing or frustrating parliamentary scrutiny. The Supreme Court did not find that the prerogative has no place in the Constitution. It ruled that there are limits to the power to advise the Monarch to prorogue Parliament. If the prorogation has the effect, without reasonable justification, of frustrating or preventing Parliament to carry out its constitutional functions, it is unlawful. The prerogative is, therefore, justiciable.

The Court noted that proroguing Parliament is quite different from a Parliamentary recess. While Parliament is prorogued, neither House can meet, debate or pass legislation. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. During a recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual. The recent prorogation also took place in exceptional circumstances: the fundamental change that Brexit will bring about to the Constitution of the UK. Parliament, as the elected representative of the people, has a right to a voice in how that change comes about. The effect of Brexit upon the fundamentals of British democracy was extreme.

No justification for taking the extreme action of suspending Parliament at such a crucial moment has been put before the Court. It was bound to conclude 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.

What remedy was ordered? The Court found that since the PM’s advice to Her Majesty was unlawful, void and of no effect, Parliament has not been prorogued. It is for Parliament, and in particular the Speaker, to decide what to do next. The Speaker immediately announced that Parliament would meet again the next morning - and Mr. Johnson took an overnight flight back from New York.

Where does this ruling leave the Brexit process? The PM is still in a defiant mood. The judgment will be respected, he says. But Brexit happens at the end of October. How this will come about remains unclear. He also wants an early election but does not have the required majority to make that possible.

The next notable deadline is 19 October. That is when Parliament must decide whether a new withdrawal agreement (secured by Mr Johnson) can be adopted or whether a completely new parliamentary initiative is necessary.

About the Author(s)

Gerhard Erasmus

Gerhard Erasmus

Gerhard Erasmus is a founder of tralac and Professor Emeritus (Law Faculty), University of Stellenbosch. He holds degrees from the University of the Free State, Bloemfontein (B.Iuris, LL.B), Leiden in the Netherlands (LLD) and a Master’s from the Fletcher School of Law and Diplomacy. He has consulted for governments, the private sector and regional organisations in southern Africa. He has also been involved in the drafting of the South African and Namibian constitutions. He grew up in Namibia.

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