This article is part of a Brexit Institute Blog Series on “The UK Supreme Court Judgment on Prorogation”. See also Simon Usherwood, Not the Best Way to Go about Things ; Stephen Tierney, The UK Supreme Court’s decision on prorogation ; Alan Greene, ‘Not a Normal Prorogation’: Parliament, The Courts, the Crown and The People ; Giovanni Zaccaroni, The UK Supreme Court Judgment on Prorogation: Reaffirming the Centrality of the Parliament ;
The UK Supreme Court judgment on prorogation: Taking Back Control
Alan S. Reid (Sheffield Hallam University)
Last Tuesday was a truly momentous day, eagerly anticipated by the legal fraternity, UK and EU politicians and the UK general public at large. The Cherry/Miller case ( UKSC 41) delivered a seismic shock in unanimous fashion – UK Prime Minister Johnson’s Prorogation of the UK Parliament was unlawful, therefore prorogation had been a legal nullity, having zero legal effect (at para. 69 of the judgment). The UK Parliament had simply been cryogenically frozen and defrosted on Wednesday morning by the Speaker John Bercow. At its heart, the Supreme Court case had had to resolve diametrically opposed legal judgments emanating from the Scottish and English courts. The Scottish Inner House unanimously considered that the question of proroguing Parliament was a matter suitable for judicial reasoning, whilst the English High Court declared such highly political matters to be beyond the reach of the courts.
The question for the Supreme Court was highly contentious, political and sensitive. The Supreme Court would need to walk a fine line that fully respected the separation of powers doctrine of the UK, the integrity of the United Kingdom’s separate legal systems and the palpable anger of the UK population who desire an end to Brexit uncertainty.
The judgment of the Supreme Court is a valiant attempt to satisfy all three considerations.
The Supreme Court was at one with itself. All 11 judges were in absolute agreement that the Prime Minister’s actions imperilled the balance of power in the UK’s unwritten constitution. It was unconstitutional for a Prime Minister to improperly use the ancient prerogative power of prorogation to stymie the essential functioning of the Palace of Westminster. Parliamentary Sovereignty and Parliamentary accountability of the executive are two fundamental, symbiotic aspects of the UK constitution. Unanimity sent a powerful message that this part of the UK State was strong and stable and well-prepared to uphold the fundamental tenets of the separation of powers doctrine.
Brexit has unleashed a number of demons, with the most venomous one possibly being the risk of Scottish secession. Scotland voted Remain in the 2016 referendum and Scottish independence remains an ever-present threat to Her Majesty’s Government, given its intransigence and failure to appease Scottish concerns. A UK Supreme Court discounting the unanimous decision of Scotland’s Supreme Court would be judicial folly. The UK Supreme Court largely vindicated the reasoning of the Inner House of the Court of Session, shutting down any criticism that the Supreme Court is dismissive of Scots law and thus helping to preserve the Union for the time being.
The UK populace are right to feel frustration at the fact that Brexit is largely no further forward than the momentous day back in June 2016 when the 52/48 result of the referendum was announced. However, the seismic change to the UK legal system that is engendered by Brexit absolutely requires that the process for leaving the EU is carried out to the letter of the law, both in the UK and in the EU. That overriding requirement means that legal challenges will invariably be brought as the Brexit process rolls on. Discussion of arcane, complicated and technical legal arguments are not the stuff of prime-time TV or of binge-watching serial. However, these issues are really important and the Supreme Court, in its judgment, has attempted to de-mystify the law. The judgment is only 24 pages, peppered with only minimal discussion of judicial precedent and authoritative writings on the law and flows clearly and eruditely across the legal and political landscape. The clarity of the judgment and its reasoning is the Supreme Court’s attempt to explain the UK constitution in layman’s terms for a large number of UK citizens turned off by the unedifying spectacle of UK politicians hectoring and abusing each other.
The Supreme Court and its seminal judgment have been subject to forthright criticism from many corners, with particularly vitriolic commentary issuing from extreme Brexiteers. This anger is surprisingly misplaced, given that the raison d’etre of Brexit was for the UK to take back control and restore Parliamentary Sovereignty, a principle apparently stolen by the EU over 40 years ago. The Supreme Court of the UK, in declaring the Prime Minister’s attempt to prorogue Parliament for over 5 weeks at a time of intense constitutional and political upheaval, was not a usurpation of parliamentary power, rather it was an emphatic reaffirmation of the centrality of Parliament in the tripartite relationship between the Executive, the Judiciary and Parliament.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at firstname.lastname@example.org