U.K. Supreme Court Rules Suspension Of Parliament Was Unlawful

Prime Minister Boris Johnson suffered a huge and historic loss in the Supreme Court of the United Kingdom.

In what is likely one of the most historic and consequential rulings in the long history of the United Kingdom, the eleven-member Supreme Court of the United Kingdom has unanimously ruled that the suspension of Parliament engineered by Prime Minister Boris Johnson was unlawful and that the suspension was illegal and of no effect:

Britain’s highest court dealt a major blow on Tuesday to Prime Minister Boris Johnson, ruling that his controversial decision to suspend Parliament was unlawful, in a landmark judgment that will have immediate implications for Britain’s departure from the European Union.

In one of the most high-profile cases to come before Britain’s Supreme Court, the 11 judges ruled unanimously that Johnson had not acted lawfully in shuttering Parliament. 

The court ruled that Johnson’s decision to ask Queen Elizabeth II to suspend Parliament essentially frustrated the ability of lawmakers to do the business of democracy, including debating Johnson’s plans for Brexit.

The decision was a brutal one for the embattled prime minister, asserting that his move to suspend the Parliament was political maneuver, and suggesting that he might have misled the queen.

Johnson, who is in New York for the U.N. General Assembly session, said he will not resign.

Brenda Hale, president of the Supreme Court, eviscerated the government’s case.

Sitting in the high court, Hale said that Johnson’s decision to suspend 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.”

The court unanimously found that Johnson’s suspension was “void and of no effect,” meaning, essentially, that Parliament has not been suspended.

Opposition leaders said that they planned to reenter Westminster Palace on Wednesday and were awaiting a call from the John Bercow, the flamboyant speaker of the House of Commons, to bring them back into session.

“This is an absolutely momentous decision,” said Joanna Cherry, a Scottish politician who helped to launch the case in the Scottish courts.

Speaking immediately after the bombshell decision, Cherry there was nothing to stop parliamentarians from returning to work immediately. She also called on Johnson to step down.

More from The Guardian:

The supreme court has ruled that Boris Johnson’s advice to the Queen that parliament should be prorogued for five weeks at the height of the Brexit crisis was unlawful.

The judgment from 11 justices on the UK’s highest court follows an emergency three-day hearing last week that exposed fundamental legal differences over interpreting the country’s unwritten constitution.

The decision was read out by Lady Hale, the president of the supreme court. Unusually, none of the parties were provided with advance copies of the judgment due to its extreme sensitivity. Only seven of the 11 justices who heard the case were present in court.

The first legal question the judges had to resolve was whether the prime minister’s decision – exploiting residual, royal prerogative powers – was “justiciable” and could consequently be subjected to scrutiny by the courts. The English high court declined to intervene; the Scottish appeal court concluded that judges did have legal authority to act.

In a unanimous verdict, the court ruled that Johnson’s decision to prorogue parliament could be examined by judges, overturning the ruling of the high court in London.

Delivering judgment, Hale said: “The question arises in circumstances which have never arisen before and are unlikely to arise again.”

Then, giving the court’s judgment on whether the decision to suspend parliament was legal, Hale said: “This court has … concluded that the prime minister’s 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.

“This means that when the royal commissioners walked into the House of Lords [to prorogue parliament] 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.”

In a unanimous verdict, the court ruled that Johnson’s decision to prorogue parliament could be examined by judges, overturning the ruling of the high court in London.

Delivering judgment, Hale said: “The question arises in circumstances which have never arisen before and are unlikely to arise again.”

Then, giving the court’s judgment on whether the decision to suspend parliament was legal, Hale said: “This court has … concluded that the prime minister’s 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.

“This means that when the royal commissioners walked into the House of Lords [to prorogue parliament] 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.”

The impact and meaning of this ruling cannot be understated. Several British legal experts who have already commented on the matter on Twitter have called it “unprecedented,” and that alone makes it likely one of the most important such decisions in the long history of the United Kingdom. Essentially, the Supreme Court found that the Prime Minister had no legitimate basis for seeking a five-week suspension of Parliament, meaning that the Court effectively if not explicitly agreed with the finding of the Scottish High Court that Johnson had misled Queen Elizabeth II when he sought her assent to the suspension to begin with. While that assent and the request were mostly ceremonial, a finding that a sitting Prime Minister has lied to the Queen is a fairly serious one in the context of British politics, one that brings Johnson’s ability to continue to govern in considerable doubt.

The reaction from Members of Parliament is about what you’d expect it to be, with both Liberal Democrat leader Jo Swinson, Scottish First Minister and leader of the Scottish National Party Nicola Sturgeon, and Labour Party leader Jeremy Corbyn calling on Johnson to resign and threatening votes of no-confidence and other measures if he refuses to do so. Additionally, the outspoken House of Commons Speaker John Bercow has hailed the ruling as a victory for Parliamentary supremacy and announced that the House of Commons would resume business tomorrow morning. This means that Members of Parliament will be free to introduce no-confidence measures and other steps to force Johnson out of office and to stop the hard Brexit that would take place at the end of October absent an extension of time.

Where this heads next depends largely on how Boris Johnson reacts to this decision and what action Parliament will take based on Johnson’s reaction. Notwithstanding the stinging rebuke he received from the court today, it seems unlikely that Johnson will leave office voluntarily. If that is going to happen, he will have to be forced out via a vote of no-confidence that would require the support of at least some rebel Tory Members of Parliament. If there are enough such members to make a majority, then the most likely outcome would be new elections that would have to take place at roughly the same time as the currently scheduled Brexit deadline, something that would likely require Johnson to seek yet another extension from the European Union.

Whatever the next step is, though, there is no denying what has happened here and its significance for British politics both in the here-and-now of the Brexit debate and going forward. With this ruling, the United Kingdom’s Supreme Court has established itself and the British Courts as an important backstop in determining the power of the Prime Minister over Parliament. In some sense, this establishes the decision as a British equivalent to the U.S. Supreme Court’s 1801 decision in Marbury v. Madison, which established the principle of judicial review over laws passed by Congress and acts undertaken by the President.

As things stand this morning, Johnson is in New York City attending the United Nations General Assembly. How long he’ll be able to pretend the political, legal, and constitutional earthquake back home didn’t happen, though, is another question.

Here’s the opinion:

UK Supreme Court Ruling by Doug Mataconis on Scribd

FILED UNDER: Brexit, Law and the Courts, United Kingdom,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mikey says:

    Glad to see at least one nation’s institutions are working, because ours sure as fuck aren’t.

    ReplyReply
    11
    1
  2. I disagree.

    The courts have done a fine job of rebuking the Trump Administration where appropriate under the law.

    ReplyReply
  3. drj says:

    @Doug Mataconis:

    You are missing he point.

    “Rebuking the Trump Administration where appropriate under the law” ≠ “having properly functioning institutions.”

    Especially as even the law itself isn’t properly equipped to deal with the current shitshow.

    ReplyReply
    6
    1
  4. Mikey says:

    @Doug Mataconis: For now.

    ReplyReply
  5. grumpy realist says:

    There’s a batsh*t article over at the DT reacting to this. The commentators are even nuttier. Talk about a collection of selfish solipsists. For anyone sensible, an 11-0 legal judgment ruling against you would have caused you to think maybe you didn’t originally have a legal leg to stand on. But in this case? Accusations of “traitors!” Accusations of how the EU has taken over (how?), accusations of “the elite” acting against “the will of the people”. Too many Brits have taken a slight majority vote in a referendum involving one YES/NO question three years ago as justification for claiming whatever they want is The Will of the Peepul.

    ReplyReply
    6
    1
  6. michael reynolds says:

    It’s like some strange political stress test, or like an Epic Rap Battle. Aliens have contrived a sort of contest to see which system copes better with a malignant twat at the helm, British Parliament, or US whatever it is we supposedly have.

    ReplyReply
  7. JohnSF says:

    It’s the unanimity that’s striking.
    I was unsure what the verdict would be, given the previous decisions and the tenor of questioning.
    And Lords Reed and Sales are known sceptics re. judicial interventions in “political” matters.
    A split decision seemed likely.
    Instead, this, without dissent:

    “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 …
    We cannot speculate, in the absence of further evidence, upon what such reasons
    might have been. It follows that the decision was unlawful.”

    Note, they have sidestepped directly calling out Johnson, Rees-Mogg, Evans and Spencer as liars, while making it quite plain what they think is obvious.

    Also, they did not command the reopening of Parliament, but instead declared that the prorogation was void, and left it to the Speakers to act; once again with obvious effect.

    In effect: “Of course it was bloody unconstitutional, you damn fools.”

    ReplyReply
  8. JohnSF says:

    Doug, you say

    the most likely outcome would be new elections

    Yes, but NOT YET.

    If a dissolution was called with Johnson still PM, there is still a possibility that he could fall in with hardliner schemes for switching the election dates after dissolution, and refusing to comply with the enactment that he request an extension.

    He (or a Conservative successor) must be compelled to request extension, or else the House needs to vote confidence in a new national unity government for that purpose.
    Johnson and Cummings must have their hands nailed to the table on this.

    (Of course at that point the tensions between various anti-No Deal groups might erupt again, but let’s burn our bridges when we get to them.)

    ReplyReply
  9. JohnSF says:

    @grumpy realist:
    What has me in stitches is the sheer magnificence of the cognitive dissonance on display.

    Simultaneously, the Court are intervening against Brexit by their decision AND the prorogation was fine because it was routine and nothing to do with Brexit at all.

    If anyone ever doubted doublethink was real , there you go.

    And all the variants of “Who are they to judge?”
    They’re bloody SUPREME COURT JUDGES, ya bunch of nitwits!

    ReplyReply
  10. JKB says:

    one that brings Johnson’s ability to continue to govern in considerable doubt.

    Johnson has already tried to call an election, which the parties refused but now they’ll have to call an election. Now with the duplicity of the members in the forefront of the public’s attention. The goal of the Remainers was to bleed Brexit out, quietly. Now the matter has been revived in the attention of the electorate. Leave or Remain, betrayal is still a strong emotion.

    All in all, it will be an interesting winter for Britain.

    ReplyReply
  11. Michael Cain says:

    @JKB:

    Johnson has already tried to call an election, which the parties refused but now they’ll have to call an election.

    Assume a no-confidence vote tomorrow and Boris doesn’t resign. Unless a miracle happens and Parliament gives Corbyn a majority, or Labour allows a government with a caretaker PM other than Corbyn, come Oct 9 the election will be called (for Nov 6, I believe) and Parliament is dissolved. Not prorogued this time, not suspended, dissolved. Cannot act, does not exist, until after the election. Boris stays on as caretaker until the election. He sits through the EC meetings on Oct 17-18 without saying a word, and doesn’t request an extension on Oct 19. No-deal Brexit happens Oct 31.

    Granted there are other ways to call for the election bypassing the Fixed-term Parliaments Act. If there’s a majority for that, though, it seems a lot simpler and safer for said majority to put in their own caretaker PM and get Boris out of the picture without risking an election now.

    There’s a reason that Ian Blackford and the SNP keep saying they’ll vote for elections only after an extension has been requested and granted.

    ReplyReply
  12. JohnSF says:

    @JKB:

    “…now they’ll have to call an election.”

    This is not the case.

    Since 2011 changes an election can only be triggered before the end of the term by a vote of the House of Commons; either a 2/3 majority for an extraordinary dissolution OR the government loses a vote of confidence and no vote of confidence is passed within 14 days (i.e. in the current govt. or any other group that can win the vote).

    Given the default No Deal date of 1 November, and that few MPs are naïve enough to trust Johnson not to try to pull off something “clever” post-dissolution, opponents will want to see an extension set in stone before agreeing an election.
    The extension could be sought by Johnson, a Conservative successor should he resign, or a new government post votes of confidences.

    “…goal of the Remainers was to bleed Brexit out, quietly”

    Might have been nice, were it an option.
    I can’t think of any Remainer who seriously thought it was.

    Incidentally, not all anti-No Dealers are Remainers by any means; quite a few are “EEA route” Leavers, or “soft Remainers” who would still support such an EEA type compromise.

    ReplyReply
  13. Michael Cain says:

    @JohnSF:

    The extension could be sought by Johnson, a Conservative successor should he resign, or a new government post votes of confidences.

    I’m curious about the EC side of things if Johnson ignores the law and does not request an extension. Can the EC say something like, “UK law says that we should have received an extension request with certain wording today, so we’ll assume that we have it and vote on whether to accept it”? Seems kind of sketchy, but I’ve seen possibly weirder things.

    ReplyReply
  14. JohnSF says:

    @Michael Cain:
    The text in Article 50, clause 3 is “…unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
    Every EU law expert I’ve read on this (mostly on twitter, didn’t keep links unfortunately) are positive that the UK must ask, and the EU states must all agree.

    Though tending to be less flexible than e.g. the UK internally, the EU has fudged some argued legal limits in the past, but those have tended to be technical, arguable and had a consensus for looking aside e.g. definitions of state budget surpluses and deficits over time, rules on international currency support, budget audit rules etc.

    This would be plainly against the letter, non-fudgeable, and likely to be contested by several states.
    Unlikely, IMHO.

    It might just, maybe, possibly, I suppose, if Ireland, which has reason for concern about the political and economic consequences of No Deal, went all out for this; but Ireland shows no sign of doing so.

    ReplyReply
  15. grumpy realist says:

    I wonder at what point the EU will give up hope on the U.K. ever coming to a decision (as it is, the strategy on the part of BoJo and his minions is to crash out of the EU on a dead-man’s hand scenario and then say “who? Us?” when the inevitable chickens come home to roost.)

    If I were the EU, I’d finish preparing for no-deal and just not extend the next time around. The EU should realise by now that no matter what they do, the U.K. will blame them anyway, so forget about trying to get approval from the U.K. as to anything sensible. The U.K. I suspect will have to go through the stages of an economic collapse, a total shrinking of their role in the world as their economic position dwindles down to that which one expects of a xenophobic mess off the coast of Europe with nothing but arrogance and innovative jams to offer.

    (I lived in London for 1.5 years back in the early 2000s and things were totally different. Talk about a country self-sabotaging itself into sulky irrelevance through overweening nostalgia.)

    ReplyReply
  16. Barry says:

    @Doug Mataconis: “I disagree.

    The courts have done a fine job of rebuking the Trump Administration where appropriate under the law.”

    IIRC, so far a very large number of Trump officials have practiced unprecedented and clearly illegal refusals to comply with Congressional subpoenas.

    The courts have so far accomplished nothing (and if the case drag on until Trump is out of office, he will have won).

    ReplyReply
  17. Kathy says:

    Do you suppose Boris is thankful or annoyed the Concorde is no longer in service?

    ReplyReply
  18. Michael Cain says:

    @JohnSF:
    That’s how you read it. That’s how I read it. That’s how all the lawyer types I know read it. That’s not what the ECJ said back in December.

    ReplyReply
  19. HarvardLaw92 says:

    @grumpy realist:

    France is already holding dry runs at Calais, et al, as to what a no deal scenario will look like from the perspective of customs delays and backups, and how best to address them from the standpoint of minimizing the impact to French firms.

    Macron et Cie honestly couldn’t care any less about how it might impact British firms or consumers, and the mood on the street here is positively poisonous where the UK is concerned. Basically “they’ve had enough chances, now it is time to just cut them loose and let them flounder. France will survive without them”. The firms we deal with have been moving operations to the continent and consolidating functions to get them out of London for months now. There is little motivation for France to vote yes for another extension, especially when there is clearly no plan even being considered by the UK government, and certainly no plan that will survive Parliament.

    ReplyReply
  20. HarvardLaw92 says:

    @grumpy realist:

    Talk about a country self-sabotaging itself into sulky irrelevance through overweening nostalgia.

    It is indeed self-sabotage – possible the worst self-inflicted damage the UK has ever experienced or is ever likely to. I wouldn’t put it down to nostalgia though – this is blatant, ugly English nationalism.

    ReplyReply
  21. JohnSF says:

    @Michael Cain:
    That ECJ ruling was about a slightly different thing: revocation, not extension.

    Revocation is a unilateral power of the leaving state, and can be exercised at any point up to the end of the Article 50 process (as of now, midnight 31 October).
    But it must be made in “good faith” as a definitive ending of the process, not a tactic for unilateral extension.
    Judgement as to bona fides would presumably be up to the court, not council or commission.

    Revocation, without a second referendum, is now the official policy of the Liberal Democrat Party.

    ReplyReply
  22. grumpy realist says:

    @HarvardLaw92: I do hope that France is pissed off enough to vote NO if the UK comes back with another extension request.

    (I sort of doubt that the UK will request again, even though it would be the intelligent thing to do. BoJo has been thumping the drum like crazy for a 11/1/19 departure and the Tories are terrified that they’re going to lose more individuals to The Brexit Party so they’re stampeding like mad towards the exit, nebbermind exactly how much of a crash it will cause to the U.K. due to their acute lack of planning. I guess they feel they can always just blame the EU. As has been typical, reality is to make way for political shenanigans. And don’t get me started on Corbyn…..he wants a Brexit just as badly as the Tories, but methinks he’s trying to remain on the fence until the UK crash out under the Tories, then use the chaos generated to ride a General Election into office.)

    ReplyReply
  23. gVOR08 says:

    @HarvardLaw92: Nationalism is how they got people to vote for it. I have yet to see much on why people spent millions manipulating those voters. In the absence of any other hypothesis, we seem to be left with the UK .01 percenters wanting to avoid an EU tax directive and turn the place into a tax haven.

    ReplyReply
  24. JohnSF says:

    @HarvardLaw92:
    The wearing out of French patience is quite plain to anyone with eyes to see it.
    So, not the wilfully blind Brexiteers, who are still convinced the EU states are desperate for the UK to stay.
    They have a massive overestimate of the importance of the UK budget contribution, and/or are have a mercantilist conviction that the UK trade deficit is somehow decisive. (And not a few are so daft as to confuse the two, and seem to think the trade deficit funds the EU)

    In fact, the French government is merely the most openly fed up; the signs are clear elsewhere.

    It is not as plain as it might be to all due to the stolid patience of Merkel, and the determination of the EU officials, as opposed to states, to continue to engage as long as the process requires.

    The one factor that does incline the Council toward extension is that they would be very reluctant to override Irish interests if Ireland were to support it.
    As of now, Ireland still seems inclined to do so.
    (If the UK manages to come to a reasonable resolution of this, we should be eternally grateful for the patience of the Irish under extreme provocation)

    ReplyReply
  25. JohnSF says:

    @grumpy realist:
    Johnson might not want to go for extension; but as of now he is legally obliged to by the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Act’) which became law on 9 September.

    Though the government is obviously considering ways of getting round this, the cancelling of prorogation may foil their attempt.

    Johnson may have to choose between risking jail for contempt if he refuses, resigning, or breaking his repeated pledges never to ask for an extension.
    And all over a No Deal that he must by now be aware would wreck the Conservative Party.

    And the crowning irony, for a cause that he has never really believed in anyway. Brexit, for Johnson, has only ever been a vehicle for his ego and ambition.

    ReplyReply
  26. HarvardLaw92 says:

    @JohnSF:

    I agree that he’s legally bound to request an extension. I’m also fairly convinced that – absent a definitive plan having been worked out and agreed to by Parliament which also satisfies the EU members – the French response to such a request will be a polite “Non”. It may be a no regardless of such an agreement.

    And it only takes one polite no to derail an extension. I’m confident there is more than one no forthcoming.

    Paris, Luxembourg, Frankfurt, and even Dublin are gleefully watching a flood of formerly British banking assets pour in, as banks – commercial and investment – continue to further abandon their positions in London. They’re invested now in seeing that trend continue, indeed in seeing it escalate further.

    That figure had already hit £800 billion back in March. It’s well over £1.5 trillion now, and shows no sign of abating. More to the point, those lost assets and operations won’t be coming back even if the UK, by some miracle, manages to pull off an agreement to avoid the insanity of a no deal exit. They’re lost to the UK for good. However this turns out, London’s role as a financial center will have been permanently diminished.

    ReplyReply
  27. HarvardLaw92 says:

    @JohnSF:

    Indeed. I have fairly regular contact with several members of the Macron administration. They – including Macron – are quite well aware that Johnson is attempting to use them as a foil / campaign banner to further his political ambitions. Believe me when I say that they are not remotely amused by it. What little goodwill the UK might have retained in Paris under May – and that wasn’t much even then – has essentially evaporated under Johnson. I’m fairly convinced that the Leavers are going to get exactly what they’ve been baying about. We essentially have front row seats to the disintegration of a nation.

    ReplyReply
  28. Barry says:

    @grumpy realist: “…so they’re stampeding like mad towards the exit, nebbermind exactly how much of a crash it will cause to the U.K. due to their acute lack of planning. I guess they feel they can always just blame the EU. ”

    My theory is that BoJo wants a pre-crash election because he can get a majority locked in for five years before he needs to call elections. After the Crash, a Tory majority would be scared sh*tless to hold any elections, because they’d lose in a once-in-a-century level wipeout.

    As for the disaster caused by the Crash – food riots are an opportunity if you’re a right-wing government.

    ReplyReply

Speak Your Mind

*