{"id":37237,"date":"2019-09-24T16:14:16","date_gmt":"2019-09-24T16:14:16","guid":{"rendered":"https:\/\/hcclawyers.com\/?p=37237"},"modified":"2024-01-30T12:02:44","modified_gmt":"2024-01-30T12:02:44","slug":"supreme-court-decision-clarifies-politics-vs-the-rule-of-law","status":"publish","type":"post","link":"https:\/\/hcclawyers.com\/supreme-court-decision-clarifies-politics-vs-the-rule-of-law\/","title":{"rendered":"Supreme Court Decision clarifies Politics vs the Rule of Law"},"content":{"rendered":"

The supreme court has ruled that Boris Johnson\u2019s advice to the Queen that parliament should be prorogued for five weeks at the height of the\u00a0Brexit<\/a>\u00a0crisis was unlawful.<\/p>\n

The unanimous judgment from 11 justices on the UK\u2019s highest court followed an\u00a0emergency three-day hearing<\/a>\u00a0last week that exposed fundamental legal differences over interpreting the country\u2019s unwritten constitution.<\/p>\n

The momentous decision was read out by Lady Hale, president of the supreme court. Unusually, none of the parties were 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.<\/p>\n

The first legal question the judges had to resolve was whether the prime minister\u2019s decision \u2013 exploiting residual, royal prerogative powers \u2013 was \u201cjusticiable\u201d and could consequently be subjected to scrutiny by the courts. The\u00a0English high court declined<\/a>\u00a0to intervene; the\u00a0Scottish appeal court concluded<\/a> that judges did have legal authority to act. The supreme court supported the Scottish interpretation.<\/p>\n

Delivering judgment, Hale said: \u201cThe question arises in circumstances which have never arisen before and are unlikely to arise again.\u201d<\/p>\n

Then, giving the court\u2019s judgment on whether the decision to suspend parliament was legal, Hale said: \u201cThis court has \u2026 concluded that the prime minister\u2019s 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.<\/p>\n

She added: \u201cThe 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.\u201d<\/p>\n

The judgment said: \u201cThis was not a normal prorogation in the run-up to a Queen\u2019s 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.<\/p>\n

\u201cParliament 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.<\/p>\n

\u201cEven 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.\u201d<\/p>\n

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.<\/p>\n

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 .<\/p>\n

The Scottish National party\u2019s Joanna Cherry, a barrister who was among those who challenged the prorogation in Edinburgh, was first out to give her reaction. \u201cThere is nothing to stop us, myself and my colleagues, immediately resuming the important job of scrutinising this Tory government, which has us hurtling towards Brexit,\u201d she said. \u201cBoris Johnson must have guts for once, and resign.\u201d<\/p>\n

Gina Miller, who had taken the case to the supreme court, then emerged, flanked by lawyers and others.\u201cToday is not a win for any individual or court,\u201d she said, reading a prepared statement. \u201cIt\u2019s a win for parliamentary sovereignty.\u201d<\/p>\n

\u201cThe prime minister must open the doors of parliament tomorrow,\u201d she added.<\/p>\n

There were jeers and booing from a handful of far right activists from the For Britain Party, who chanted \u201ctraitor\u201d as the SNP parliamentary leader, Ian Blackford, gave interviews nearby. \u201cWe love you Boris, we do,\u201d<\/p>\n

Speculation before the ruling was that the court would find against the prime minister; that they were unanimous came as a surprise.<\/p>\n

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.<\/p>\n

James Libson, the solicitor at the law firm Mishcon de Reya, who represented Miller in this case, said:\u201cThis 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.\u201d<\/p>\n

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 \u201ccritical importance\u201d of the sovereignty of parliament.<\/p>\n

In a statement, Motion said: \u201cIt 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.\u201d<\/p>\n

Labour\u2019s Ian Murray, one of the MPs who brought the case in Scotland, described the result as \u201chistoric\u201d and an \u201castonishing rebuke to\u00a0Boris Johnson<\/a>\u00a0for his disgraceful behaviour\u201d.<\/p>\n

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\u2019s unwritten constitution. Some will see it as a further advance in the supreme court\u2019s development into a constitutional court.
\nThe judgment declares: \u201cThis court is not \u2026 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.\u201d<\/p>\n

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 \u201cforbidden territory\u201d and constitutionally \u201can ill-defined minefield that the courts are not properly equipped to deal with\u201d.<\/p>\n

Eirik Bjorge, professor of law at Bristol University, said: \u201cThe 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.\u201d<\/p>\n

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.<\/p>\n

The Guardian<\/p>\n

24th September 2019<\/p>\n","protected":false},"excerpt":{"rendered":"

The supreme court has ruled that Boris Johnson\u2019s advice to the Queen that parliament should be prorogued for five weeks at the height of the\u00a0Brexit\u00a0crisis was unlawful. The unanimous judgment from 11 justices on the UK\u2019s highest court followed an\u00a0emergency three-day hearing\u00a0last week that exposed fundamental legal differences over interpreting the country\u2019s unwritten constitution. The…<\/p>\n","protected":false},"author":2,"featured_media":36898,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[69],"tags":[146],"class_list":["post-37237","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-latest-news","tag-brexit","category-69","description-off"],"_links":{"self":[{"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/posts\/37237","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/comments?post=37237"}],"version-history":[{"count":1,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/posts\/37237\/revisions"}],"predecessor-version":[{"id":37238,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/posts\/37237\/revisions\/37238"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/media\/36898"}],"wp:attachment":[{"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/media?parent=37237"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/categories?post=37237"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hcclawyers.com\/wp-json\/wp\/v2\/tags?post=37237"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}