Supreme Court Rules Prorogation Unlawful

In a constitutional bombshell, Britain’s Supreme Court has unanimously ruled that Boris Johnson’s decision to prorogue Parliament for five weeks was unlawful, and the prorogation itself is “null and of no effect.”

The justices found that the Prime Minister’s advice to the Queen was unlawful because it infringed on the principle of parliamentary sovereignty. They noted that “[t]his 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 the 31st October [para. 56].”

However, the length of the prorogation was not the only factor that made it unlawful. “Such an interruption in the process of responsible government might not matter in some circumstances. But the circumstances here were, as already explained, quite exceptional [para. 57].” Although the people may have voted to leave the European Union in a referendum, Parliament still has a role to play in the Brexit process. If Johnson secures a new deal with the EU, Parliament will need to pass legislation to implement it. If Britain is to leave without a deal, Parliament will still need to scrutinize delegated legislation in order to facilitate a no-deal exit. The court held that the Government failed to consider these factors when opting for a lengthy prorogation.

“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 – to advise Her Majesty to prorogue Parliament for five weeks…It follows that the decision was unlawful [para. 61].”

Having decided that the Prime Minister’s advice was unlawful, the court had to decide what that meant in practice. The justices decided that, since the Prime Minister’s advice was essentially ultra vires, everything that flowed from it was null and void. This includes the Order in Council authorizing the preparation of the prorogation commission as well as the prorogation ceremony itself. Commenting on the latter, the court noted that it was “as if the [Lords] Commissioners had walked into Parliament with a blank piece of paper [para. 69].”

This is a breathtakingly bad outcome for the Government. The highest court in the land has effectively decided that they attempted to subvert a fundamental constitutional principle. One small silver lining is that the court did not go so far as to say that Johnson had lied to the Queen:

“We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it [para. 15].”

In practice this is unlikely to help Johnson much. The notion that he misled the Queen has already entered the popular narrative, and since convention dictates that Her Majesty’s interactions with the Government are kept confidential, there isn’t much he can do to refute it.

Interestingly, the court sidestepped the question of whether the Queen could have refused to accept Johnson’s advice. “It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter [para. 30].” Thus, one of the biggest grey areas in the British constitution remains unaddressed.

However, the court did seem to suggest that, when advising Her Majesty on the exercise of her prerogative powers, the Prime Minister must take a holistic view of the situation. Since constitutional convention obliges the Sovereign to act on ministerial advice, the Prime Minister has “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament [para. 30].” Later on, when reviewing the Government’s evidence in support of its decision to prorogue, the court noted that “[n]owhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies [para. 60}.”

This notion could have profound ramifications and lead to further judicial scrutiny of the Executive. For example, Theresa May gave cricketer Geoffrey Boycott a knighthood in her resignation honors list. This has proven controversial, given Boycott’s prior conviction for domestic abuse. Can someone now challenge May’s decision to recommend Boycott for a knighthood on the grounds that she failed to consider “all relevant interests”? True, the honors system has traditionally been off limits to the courts, but until today, many authorities considered prorogation to be non-justiciable as well!

The fact that the Supreme Court declared the prorogation of Parliament to be null and void also raises an interesting question about the validity of the bill that received Royal Assent during the prorogation ceremony. If the Lords Commissioners effectively went in “with a blank piece of paper,” does that mean the Parliamentary Buildings (Restoration and Renewal) Act never became an Act of Parliament? Can the Royal Assent be separated from the act of prorogation even though it was authorized by the same commission? In the past when there have been informalities in granting Royal Assent, Parliament has passed legislation to rectify the matter, so a similar approach might be warranted here.[1]

Today’s decision will likely go down as one of the most noteworthy constitutional cases in British history. The tectonics that underly the British constitution continue to shift, and the Supreme Court’s decision will likely have repercussions that last far beyond Brexit.  

The full Supreme Court judgment can be found here.

Alternatively, a summary of it can be found here.

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[1] For example, in the 16^th century, Parliament declared the Act of Attainder against the Duke of Norfolk to be null and void since it did not validly receive the Royal Assent. See Sir Barnett Cocks, ed., Erskine May’s Treatise on the Laws, Privileges, Proceedings and Usage of Parliament, 18^th ed, (London: Butterworth & Co. Ltd., 1971), 559.