Brexit Business Brief | "Parliament has not been prorogued"

The UK Supreme Court has this morning (24 September 2019) unanimously held that the government's prorogation of Parliament is justiciable and has declared it unlawful.

Not just unlawful; also "void and of no effect". It is a remarkable judgment, damning of the government's actions.

• The Prime Minister is found to have advised the Queen unlawfully.
• Parliament is found not to have been prorogued at all.
• Bills that were going through Parliament are therefore presumably resurrected.
• What happens in Parliament now is down to the Speakers of the Commons and the Lords.
• John Bercow, Speaker of the Commons, wants to convene the Commons immediately.

Summary of the judgment here; full version here.

Let's run through this as briefly as possible.

There are three ways in which Parliament stops sitting

• Dissolution: This only happens before a general election. Since the Fixed-term Parliament Act 2011, the means by which Parliament is dissolved has been placed on a statutory footing. As we've seen in the past few weeks, the executive no longer has the power to dissolve Parliament without Parliament's agreement.
• Recess: These are periods when a House of Parliament is not sitting. For holidays, for example. Technically, recess is a form of adjournment. The House must approve the recess. So, again, this is not in the control of the executive.
• Prorogation: This ends the current session. Parliament reconvenes when a new session starts, almost always with a Queen's Speech setting out the government's new legislative agenda. Prorogation is a Royal Prerogative power, exercised by the Queen on the advice of the executive. And so it is the only means the executive has of stopping Parliament sitting.

What the Prime Minister did

As we know, the government prorogued Parliament for five weeks, from the end of 9 September until 14 October 2019. The stated reason was to enable preparations for a Queen's Speech. That is the conventional reason to prorogue.

The suspicion immediately was that the real motivation was to stop the Commons debating Brexit.

Can prorogation even be a matter for judges?

This question has never really arisen before. Previously, prorogation has been used as an uncontroversial mechanism of ceasing and starting Parliamentary sessions.

Before any consideration of lawfulness, the courts have had to decide whether the executive's decision to prorogue is even justiciable. The argument being, prorogation is a matter of high politics and outside the purview of the courts. The English High Court held that it is not for judges; the Scottish Court of Session held it is justiciable.

The UK Supreme Court (UKSC) is today unequivocal: it is justiciable. "The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”… there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that."

And was it unlawful?

The UKSC could have found that the decision to prorogue is justiciable, but that the government's action in this instance was lawful.

Instead, it has found the decision unlawful. The test being "…a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive".

The UKSC found that test met.

What happens now? Looks like Parliament is coming back immediately

Here is what the summary of the judgment says:

"This Court has already concluded that the Prime Minister’s advice to Her Majesty 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 and should be quashed. This means that when the Royal Commissioners walked into the House of Lords 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. This is the unanimous judgment of all 11 Justices.

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 have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court."

Constitutional agonies

The Brexit agonies have provoked many constitutional questions.

• What is the role of a referendum in a system of representative democracy?
• Can the Commons take control of its own business and make an unwilling executive its delegate in negotiations with another power?
• How does the British political system work if a government has no ability to get its business through the Commons, but the Commons refuses to dissolve itself and allow a general election?

The UKSC's decision answers one question: the executive's power to prorogue is justiciable. With the result that, it becomes much harder (and it was already hard) for the government to contemplate proroguing Parliament again over the 31 October period in order to force a no deal Brexit.

Any future government thinking of using prorogation as a tactic to sidestep Parliament will now face that decision being reviewed by the courts.

What does this mean for Brexit?

In one way, the Brexit action remains the shadow-play between London, Brussels, Paris and Berlin as all sides search for a deal.

But in another, the UKSC's judgment is so complete a defeat for the government, a government with no control of Parliament, that issues over its survival and the ability of the Prime Minister to continue will now again be front and centre, with the immediate question being whether the Commons moves to pass a vote of no confidence under section 2 of the Fixed-term Parliaments Act 2011.