Boris and the Supremes: What the Judgment said

It's not easy to disentangle the rhetoric of politics from the calm deliberations of the courts. But as how the Supreme Court judgment on 24th September will be represented may go way beyond what it said and signified, it might be worthwhile to pull out some extracts from it so we have a little chapter and verse.

Paragraph numbers are from the numbered paragraphs in the Judgment. Words in italics are quotations from the Judgment.

Lady Hale as President of the Court set out clearly the parameters of the case (Para 1), namely that the issue is not when and on what terms the UK will leave the EU, but whether the Prime Minister's advice to the Queen that Parliament should be prorogued from 9th-12th September to 14th October, was lawful. 

What is prorogation? It (Para 2) ends the current Parliamentary session. The next session starts, "usually a short time later" (my italics), with the Queen's Speech. During the prorogation period neither House (Commons/Lords) can meet, debate nor pass legislation, nor debate Government policy. Members of either House cannot ask questions of Ministers. Members cannot meet and take evidence in Committees. The significance of this becomes clear when we contrast below Parliamentary recess.

After rehearsing the events leading up to the case, the Judgment described the proceedings, comprising an appeal from the Scottish courts and separately from the High Court in England and Wales (Para 23 to 26).

Para 27 sets out the issues to be determined by the Court:

- Whether the issue is justiciable ie whether it is a matter that can properly be considered by a court of law

- If the issue is justiciable, what is the proper standard for the lawfulness of the behaviour ie the Prime Minister's advice to the Queen?

- Was the advice lawful based on that standard?

- If the advice was unlawful, what should the Court rule?

On the first issue, the Court decided that the issue was clearly justiciable. The case concerned the Government's prerogative powers, that is what it can do or make happen independently of Parliament. Taking a line of cases back to the 17th century that determine what is the Court's authority, the Court here held that (Para 31) "...the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." 

The Court was clear that the courts (Para 38)  "...have a responsibility of upholding the values and principles of our constitution and making them effective". As perhaps a rebuff to politicians (or their political advisers) who calculated that the Court would be apprehensive about getting involved in the prorogation dispute, Lady Hale added: "The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context." Here we can reference Lady's Hale's opening remarks (Para 1): "It [the issue of advice to the Queen on the prorogation] arises in circumstances which have never arisen before and are unlikely to arise again". In other words, this was an extraordinary situation.

Para 50 sets out the standard for the lawfulness of the Government's actions here, namely that "...a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) 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 [executive = government]. In such situation the court will intervene if the effect is sufficiently serious to justify such an exceptional course." That last sentence should be noted carefully.

Now to whether what the Government did was lawful, and here we move to Para 56., which makes the following points:

- This 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 31st October

- Parliament might have decided to go into recess for the party conferences during that period, but given the extraordinary situation of the UK's imminent exit fron the EU, it might have decided not to go into recess or at least to shorten the normal conference recess period.

To understand the importance of that last point, we need to appreciate the difference between prorogation and recess. What prorogation does has been already been outlined above; Parliament is shut down and that shuts down all the work it does. Recess comes from Parliament agreeing to be suspended temporarily. Para 56 points out in general terms that if MPs 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." It may be helpful to expand on this general statement by underlining what Parliament can still do during a recess. As the Institute of Government's website sets out:

"While MPs and peers will not meet in the main chambers during recesses, other parliamentary business, such as select committee work and the tabling of parliamentary questions, can continue."

Moving for a second away from the Judgment (which did not directly concern Brexit), it does not take much reflection to see that whilst recess would have cut down Parliament's ability to scrutinise and question the Government's handling of preparations for Brexit, prorogation would kill it entirely.

The acid question then becomes whether there was reasonable justification for the length of the prorogation. Any court depends, for its decision, on the evidence given to it. The Court concluded that no evidence had been given that put forward a case for reasonable justification. It would have been possible for Ministers or senior Government officials to submit witness statements on the Government's arguments for justification, but none was forthcoming.

As an example of a barb aimed by the Court at the Government's advisers, the Court pointed out that a memo of 17th August from Nikki da Costa, Director of Legislative Affairs to the PM's office, "...does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same."

Thus the Court decided (Para 61) that it was impossible for it to conclude on the evidence put to it that there was any reason, let alone good reason, to advise the Queen to prorogue Parliament for the five-week period.

It should be noted that the Court considered the Prime Minister's motive to be irrelevant: "We are not concerned with the Prime Minister's motive in doing what he did." (Para 58).

In public discussion of why the five-week break was required, the Government put a lot of emphasis on the need for the preparation of the Queen's Speech (as sets out the Government's legislative programme for the new session of Parliament). This line was still being taken the morning after the Judgment, when Michael Gove (Minister responsible for the leaving EU arrangments) appeared on Radio 4's Today Programme. The discussion of that item would have been enlightened by referring to Para 59 of the Judgment and the intervention of Sir John Major.

Why should a former Prime Minister choose to put his oar into the proceedings? Well, it was not a gratuitous repetition of arguments put by others, it was to clarify what time is reasonably needed for a Government to prepare for a Queen's Speech. The points of Sir John's submission in evidence (all recorded in Para 59) were as follows:

- The work on the Queen's Speech varies according to the size of the programme

- A typical time is four to six days

- Government business managers meet to select the Bills to be included, usually after discussion with the Prime Minister, and Cabinet is asked to endorse the decisions

- Drafting the speech does not itself take much time once the substance is clear.

Para 59 notes two further things. The first is that Sir John "...has never known a Government to need as much as five weeks to put together its legislative agenda. The second thing is: "The unchallenged [my italics] evidence of Sir John Major is clear."

You can draw your own conclusions from the above.

A final issue is a technical one: cases can be won and lost on these. The Government's lawyers argued that the prorogation was a proceeding in Parliament. A proceeding in Parliament cannot be questioned in any way. But the Court dismissed this argument robustly, determining that the prorogation was not (Para 68) a decision of either House of Parliament, but "...something which is imposed on them from outside."

So the Judgment was that the purported prorogation was null and of no effect (Para 69). Advocates are taught to paint a picture of what they want a judge or jury to see as the outcome for their case; Lady Hale demonstrated her picture-painting skills when explaining the impact of the Government's action. Discussing what happened when the Royal Commissioners (members of the House of Lords but here acting in a ceremonial capacity to do the act of prorogation) undertook their task, she said that the purported prorogation "...was as if the Commissionrs had walked into Parliament with a blank sheet of paper."

Much has already been said and written about the impact of the decision.  It was not directly related to Brexit, but indirectly it has stoked the fire of political argument still further. On one side it gives Parliament valuable time to be able to hold the Govrnment to account and, for some, force its hand not to allow a no-deal Brexit to happen. For others, it is a waste of time for Parliament to sit for the full five-week period, when there is little Parliamentary work left beyond Brexit. In papers referred to in the Judgment (Para 18), Boris Johnson did a handwritten note that a September sitting was "rigmarole"; at the Despatch Box as MPs returned to sit on 25 September, the Attorney-General Geoffrey Cox thundered that in its resumed sitting Parliament was "dead".

However, the legal significance of the judgment is great, and may only be recognised fully in future constitutional battles. Going back to the beginning, the Supreme Court made clear that the courts have power to supervise the exercise by Government of prerogative powers  How that role is exercised depends on what issues come before the courts. Our unwritten constitution, resting in part on decisions of the courts over the years, is flexible enough to deal with novel developments.

So the question can still be put on whether it was right for the Supreme Court to exercise here its power to intervene and to rule against the Government. Better brains than I will opine on this, but the media intervention of Jonathan Sumption (former Justice of the Supreme Court), highly thought of for the power of his intellect, is telling. It is known (see his 2019 Reith Lectures) that Sumption is not keen on what he sees as the increasing tendency for the courts to be asked to intervene in political matters. But writing in the Times on 25 September, he criticised the Government's action: "The government has taken an axe to convention. It sought to use the awesome prerogative powers of the Crown without the accountability to parliament that makes the exercise of those powers tolerable." My words are that the Government provoked the outcome.

In a Today Programme interview also on 25 September, Sumption castigated the Government for adopting an approach that (given its view of need to stop Brexit from being frustrated) took the position that the ends justify the means. Chillingly he referred to this as the behaviour of a dictator.

Perhaps we could sum it up with some blunt language that would not be out of place in the type of vox pops coverage that the broadcast media consider necessary for "balance": the Government tried it on, but didn't get away with it. 

The author is former Managing Partner of a City law firm