In a Case Where No Clear Law Existed on Prorogation, the UK Supreme Court Finds the Government Guilty
Until today’s UK Supreme Court decision… there existed no law whatsoever in the United Kingdom (nor anywhere else in The Commonwealth of Nations) as to how long and under what conditions Parliament could be prorogued by a Prime Minister.
Of course, the UK Prime Minister doesn’t act alone when proroguing Parliament as (according to House of Commons rules) the PM can prorogue Parliament only when he or she is acting in concert with the Privy Council and in agreement with the UK Head of State (which position is presently held by ‘the Queen’).
As all Commonwealth of Nations countries are based on the Westminster parliamentary model, every country in The Commonwealth is now directly and measurably affected by this new precedent, and this case will have far-reaching implications in every country that practices Parliamentary democracy.
So how can it be that where there was no existing law (until today’s precedent-setting decision by the UK Supreme Court) that a British Prime Minister could have broken a law that didn’t (yet) exist?
It seems counter-intuitive to say the least.
And aren’t Supreme Court judges in parliamentary democracies placed in their highly-esteemed court to adjudicate existing laws only?
How can one be guilty of breaking a law, when there existed no law forbidding that action or practice beforehand?
OK, so the UK Supreme Court Judges Have Created a (New) Law: Can They Do That?
Apparently they can.
Yet, passing legislation (laws) is the primary remit of the House of Commons (definitely not the primary remit of the UK Supreme Court) and the government is charged with the task of drafting laws for the United Kingdom, to debate them in the House of Commons, and to forward formalized legislation to the House of Lords for their consideration.
Then, the House of Lords returns the approved legislation (sometimes with minor changes as determined by the Lords) to the Prime Minister so they can seek Royal Assent for the legislation, which is the final step before that legislation becomes law.
The reason legislation needs to be approved and signed by the Sovereign (a.k.a. ‘the Queen’) is that the Sovereign holds the post of the Head of State for the United Kingdom, its territories and possessions worldwide, etc., and ultimately, the Head of State more than any other person or level of government is personally responsible for the actions of his or her government, its military, and its citizens. (A rather important point that people easily forget!)
Only a Head of State can be held personally liable for the actions of his or her country; A Head of Government cannot; A Supreme Court Justice cannot.
What’s This Prime Minister To Do Now?
As the responsible person on behalf of the country the Queen must notify the Speaker of the House to order Parliament to resume sitting at their earliest convenience, which is tomorrow morning.
There can be no defying the UK Supreme Court (ever!) — and whether the UK Head of State, the UK Head of Government, or individual British MP’s or Lord’s agree or disagree with the Supreme Court is entirely irrelevant. The UK is a country of laws, and for now, the law says that proroguing the UK Parliament (at least in the manner it was done, and in the absence of any specific laws on the matter) was illegal.
And sadly, the endless and heretofore pointless debates on Brexit and General Elections must continue ad nauseam.
The so-called will of Parliament seems to be that the more debate and less decision-making the better. And another Brexit extension will simply ‘enable’ them to further duck their responsibilities, election promises, and party manifestos.
Yes, it’s a dysfunctional Parliament, I get that.
What is Advisable for PM Boris Johnson, Henceforth?
As the primary purpose of the Prime Minister and the government is to draft legislation (laws) for the country, I suggest he do exactly that — beginning with a new set of laws for proroguing Parliament (which might sound a little cheeky coming on the heels of the UK Supreme Court decision) but we got to this point by NOT having clearly written laws on the matter.
I humbly suggest that the government draft a new law to instruct how the Prime Minister, his Privy Council, and the Head of State must proceed when they next intend to prorogue Parliament.
- For prorogations of any amount of days fewer than 15-days, the UK Prime Minister should have the discretionary power to prorogue Parliament at any time, for any reason. He or she shouldn’t be required to provide any reason in cases where prorogation lasts less than 15-days. It’s important to note that future PM’s would be obligated to adhere to this legislation should it pass through the House of Commons, through the House of Lords, and receive Royal Assent from the UK Head of State. (This course of action is well within the government’s remit, and would merely set in place the clear laws on prorogation that should’ve always been on the books)
- For prorogations of longer than 15-days, the UK Prime Minister should present sound reasoning for his request to prorogue Parliament to the Privy Council, the Head of State, and the UK Supreme Court. Under no circumstances short of nuclear war hitting the UK or an asteroid wiping out half the Earth, should a UK Prime Minister be able to prorogue Parliament for longer than 15-days WITHOUT Privy Council approval, Head of State approval, and UK Supreme Court approval.
This way, a future Prime Minister won’t ever again find himself in the embarrassing position of having broken a law that didn’t exist. Which is exactly what’s occurred in this case.
So now, every enemy of the UK, every ‘frenemy’ of the UK, every Briton who wishes ill-will for the UK, and every mocker of Parliamentary democracy in the world will be certain to make good use of today’s ruling to embarrass the UK government.
In the largest possible context, the present situation has been enabled because the UK House of Commons and every successive government since the first British Parliament in the year 1215 — whether Whig, Tory, Labour or Conservative, failed to create the necessary legislation to enable the government to function properly as it relates to the prorogation of Parliament.
Which is why it needs to be corrected as soon as possible — notwithstanding Brexit, no Brexit, or delayed Brexit.
Since the dawn of Parliamentary Democracy, Prime Ministers have had the discretionary power available to them known as ‘proroguing power’ and as a traditional power it’s held without any restriction whatsoever; The ability to prorogue or suspend Parliament for any reasonable length of time and for any purpose — whether for ‘evil’ or for ‘good’ is via the prerogative of the Prime Minister.
Of course, it depends upon your view of ‘evil’ or ‘good’.
If for example, you’re a Conservative MP and a Conservative Prime Minister prorogues Parliament you’re likely to see his or her prorogation in favourable terms. But a Labour backbencher may see that same prorogation in different terms.
Although there have been times through history when both the sitting government and the opposition party have agreed on the need for the Prime Minister to suspend Parliament. So much better when it occurs that way!
Also relevant to this discussion is; ‘What constitutes a reasonable length of time?’
The ‘Use-it or Lose-it powers’ of a Prime Minister
Some powers held by a Prime Minister are clearly identified and strictly enforced by both Parliament and the courts, and that’s as it should be.
Prime Ministers shouldn’t be able to make-off with billions of pounds of ‘The People’s’ tax revenue, for instance.
But other powers such as the power to suspend Parliament fall under the scope of discretionary, or ‘use-it or lose-it’ powers, therefore, if several PM’s in a row decline to use their discretionary powers it becomes increasingly difficult for future PM’s to use them. Eventually, PM’s would lose the power to prorogue Parliament for one example, if it isn’t used judiciously and relatively frequently in the here and now.
I suggest that as long as British PM’s aren’t abusing their discretionary power, why remove it from them? Why punish them for having done no wrong? And why remove that power from future PM’s when they’ve never yet abused such discretionary power?
We can’t just go around removing discretionary power from people just because ‘it could become a problem in the future’ or because ‘one PM out of twenty has abused their discretionary power’, or because we hail from a different political party and prorogation could affect our chances of re-election at the next General Election.
How would you like it if some of your discretionary powers were removed because a fellow citizen abused their discretionary powers? Of course you wouldn’t like it if it happened to you.
You might like to eat a McDonald’s Big Mac once per month, as I do. But because a fellow Briton trashed a McDonald’s last week, is that good enough reason to ban all Britons from eating at McDonald’s restaurants forever? Of course not.
Therefore, courts, Parliaments, and citizens must recognize the right of PM’s to their discretionary powers until the day arrives that every Prime Minister is abusing those privileges and a permanent change must be made to protect the country from its political leaders.
And that means every prorogation should be made public, and be heard and read by Parliament, by the media, and examined (even a cursory examination, in the case of a short prorogation) by the UK Supreme Court.
That doesn’t mean opposition parties should turn it into a political circus to embarrass the government (remember; one day the opposition party might form the government and might need to prorogue Parliament too, so they should examine such prorogations with a fair demeanour and a gentle spirit) rather, HM Loyal Opposition Party should examine the prorogation and satisfy itself that such use of discretionary power hasn’t inflicted any harm on the normal operation of government, and if it does interfere with the normal operation of Parliament, was it warranted?
Prorogation of Parliament in the Case of Declared War
I’ll give you some examples to consider, some of which have actually occurred in the past and some not;
Example: The government declares war on another country and immediately prorogues Parliament.
So, if the government is concerned that enemy snipers may kill Parliamentarians, it’s the right decision to suspend Parliament because MP’s entering and leaving the House of Commons every day would be easy targets for enemy snipers.
In the absence of a sniper threat however, there could still be good reason to suspend Parliament after declaring war on another country;
Such as the public and media may need time to acclimatize to the new (war) reality and it could be that the government could ‘get too far ahead of the people’ by (seemingly) rushing a number of legislative bills through the House — which could make it look like the government was ‘pulling a fast one on the people’ by not giving them enough time to find out the full (either ‘evil’ or ‘good’) reasoning behind the government’s decision to declare war. That’s touchy ground for governments. Civil wars have started on less fog and fuel than that.
Much better for everyone if the government were to declare war, prorogue Parliament, give everyone a week or two to get up-to-speed on recent events, and then resume sitting in the House of Commons.
But what if the government really were ‘pulling a fast one’ on the people?
That too, could happen in the declaration of war scenario;
If the public were generally unfavourable to declaring war on another country, and the opposition parties were temporarily disorganized, the government could declare war, quickly suspend Parliament, and then get the military heavily involved in the war (“It’s too late to back-out now, we’re in with both feet!”) and without proper oversight by Parliament, we could find the UK in an ill-advised war, based on a wrong-headed ideology, neck-deep in so-called ‘war fever’, or other lapse of cogent thinking.
Which is why I suggest that… proroguing Parliament should be at the discretion of the Prime Minister in conjunction with his or her Privy Council AND require Royal Assent by the Sovereign as an additional ‘check and balance’ on the government AND should be examined and (hopefully) approved by the Supreme Court in the normal course of court business as a ‘check and balance’ on the entire government including on the Head of Government (the PM) and the Head of State (the Sovereign) — where the prorogation is expected to last longer than 14-days.
Therefore, if all three parties agree (the PM/Privy Council + the Sovereign + the Supreme Court) on a longer-than-14-day-prorogation, then the PM has acted well within his or her authority, and that should be the end of it.
But for prorogations less than 14-days, the same process that’s in use today and has been in use for centuries wouldn’t change — meaning no Supreme Court involvement would be required — as short-term prorogation simply happens at the discretion of a Prime Minister, nothing more and nothing less.
Still, out of courtesy, and only after receiving Royal Assent, the government should always inform the Supreme Court of any prorogation of Parliament, no matter how many days it must be, whether fewer than 14-days or longer than 14-days, because circumstances can change and a government may later need to extend the prorogation for unforeseen reasons.
Note: Almost every Commonwealth country follows the same prorogation procedure in the case of prorogations lasting less than 14-days.
Proroguing Parliament to Prevent Filibuster of Government Business (The People’s Business!)
Governments have also prorogued Parliament because opposition parties were filibustering the government, a situation where opposition speaker after opposition speaker rises and speaks for many hours, thereby preventing the House of Commons from passing any legislation whatsoever, especially the piece of legislation the opposition find so offensive.
In that case, proroguing Parliament serves to punish the filibustering MP’s and their party, and returns the House to normal operation so that the people’s business may continue to be administered by the government.
It’s one thing to teach the government a lesson about acting in a high-handed way — in that case, a bit of filibuster can be a good thing! — but it’s quite a different thing if it goes beyond bounds and becomes a circus that takes on its own life and prevents other important legislation from consideration, debate, and passage in the House of Commons.
Such abuses and other abuses by opposition parties throughout history are exactly the reason why today’s Prime Ministers have such discretionary powers.
Again, it occurs in every generation that legitimate uses of discretionary power are advisable when the PM, acting in concert with his or her Privy Council, must suspend Parliament in order to assure the continued operation of the government.
And in the case of filibuster (which sometimes unduly prevents the people’s business from being conducted) the above-noted rules should likewise, in the exact same way, also apply to a Prime Minister considering a prorogation of Parliament.
On the Prorogation of Parliament (2019)
UK Prime Minister Boris Johnson was handed a mess from the previous government — although much of it wasn’t the fault of former Prime Minister Theresa May and her MP’s — as half the blame was the fault of the sometimes intransigent but always on-message EU.
After Britons voted to leave the EU in the June 2016 referendum, a vote in the House of Commons confirmed that the UK would be leaving the EU (via the European Union Bill) that passed with a healthy margin of 498-114, and subsequently, a UK General Election was held in June 2017 where all parties ran on a platform of delivering Brexit and Theresa May’s Conservatives won that election.
At that point, there was no talk of overturning the 2016 People’s Vote to leave the EU, nor of overturning the European Union Bill of February 2017, nor of overturning the results of the June 2017 General Election.
Then, the Withdrawal Bill happened.
From the day the EU announced that a ‘backstop’ would be required for Northern Ireland, relations between the UK and the EU plummeted and some British MP’s seemed intimidated by the EU’s insistence on a backstop, while some Britons seemed even more determined to get Brexit done — even former Remainers!
If it was a ‘divide and conquer’ tactic that the EU planned to destroy UK unity of purpose it worked — but only by a half measure.
But the other group of (non-MP) Remainers became convinced of the necessity to fulfil the result of the democratic referendum, the European Union bill vote, and the 2017 General Election result.
Three missed Brexit deadlines came and went in the spring of 2019, and the EU decided that October 31, 2019 would become the new Brexit date.
Now, after £69.5 billion in costs due to economic uncertainty — including the annual payments to the EU that amount to £12.2 billion (net) for 2019 alone — and a gestation period that would impress a brontosaurus, many Britons just want out of the EU. Even former Remainers are for turning… these days.
Yet, some British MP’s seem increasingly afraid of delivering the Brexit the country voted for and the Brexit that they themselves approved when they voted en masse to approve the European Union Bill.
Some things defy explanation to put it mildly.
With all of that (disastrous) recent history, opposition parties in the UK House of Commons then voted to remove power from the Prime Minister to put paid to the Brexit that voters have been waiting for since 2016, and have voted-down the PM’s call for a General Election, and were increasingly working with the supposedly impartial Speaker of the House to nullify the government’s best efforts to deliver either a Negotiated Brexit or a Hard Brexit. (EU in the driver’s seat regarding those two choices)
What’s a Prime Minister to do?
And this, in the context of having to be in a constant state of readiness to dash off to the continent — perhaps being summoned to a meeting in Brussels at 5:00am with no advance notice of any such meeting as former PM Theresa May was — to negotiate some tiny particle of a new Withdrawal Agreement.
How can a new UK Prime Minister get himself up to speed on his new job, keep himself in that state of readiness for a sudden trip to the continent, work with government ministers and others to plan out a workable Withdrawal Agreement, keep ahead of his House of Commons commitments, deal with the media, stay on the right side of Brexit deadlines, get the country ready for perhaps a Negotiated or Hard Brexit depending on the whim of the EU negotiators that week, and deal with defections by his own MP’s and the shenanigans of Remainers and anti-Brexit types on both sides of the English Channel?
Really people, we need to cut this man some slack! You wouldn’t want to be him!
The poor man probably needed sleep due to exhaustion, needed to give his people some quality time to work on Brexit delivery plans, some time for him to visit EU leaders to ascertain their level of interest in agreeing a new Withdrawal Agreement and test the waters for a future trade agreement/future relationship, to conduct some media interviews, and talk to regular Britons on the High Street about their thoughts on Brexit.
And now, some want him in the stocks for proroguing Parliament? Give me a break!
Boris Johnson hasn’t had a good set of choices from which to choose since he became PM. In fact, his greatest gift so far, is that he’s been the master of choosing the least bad of the available choices.
I think these are extenuating circumstances occurring during uncommon days and he’s done well considering the mess he was handed, and is doing his best to make good on the government’s promises to citizens, to business, to Parliament, to our EU partners and is trying to meet all legal requirements on both sides of the Channel. Very admirable.
Where Do We Go From Here?
“Every day we teach others how to treat us.”
And if we’re teaching the new PM that he’s not allowed to deliver Brexit even after a majority of voters and after a majority of MP’s voted for it, and that he’s not allowed by his colleagues to hold an election to determine who’s in charge of the government, and that he’s not allowed to prorogue Parliament, and that he’s not allowed to succeed in reaching a satisfactory Withdrawal Agreement with the EU (because it is likely to get voted-down for no reason other than MP’s are suddenly afraid of their responsibility to deliver the Brexit their constituents and they themselves voted for) then what are we teaching this poor man?
We’re teaching him to fail, that’s what we’re teaching him. And that isn’t what we should be teaching British Prime Ministers.
Now, let’s resolve to become part of the solution and not part of the problem and help this man to deliver what the majority voted for, what Parliament voted for, what the country is crying out for (including many former Remainers) and help him obtain a withdrawal deal that the UK and the EU can both live with.
Parliament and all concerned parties; Give our man a way forward! Please!
And the only thing we should be asking of him — other than, “How can we help?” — is “Henceforth Mr. Prime Minister (and all future PM’s) could you please inform the Sovereign and the Supreme Court if you need to prorogue Parliament and we will do our utmost to facilitate your request?”
Anything other than that is on us, for (quite innocently and unaware) trying to turn this UK Prime Minister and every subsequent Prime Minister into quiet, paper-shuffling, do-nothing bureaucrats. “Nothing ventured, nothing gained,” will be their new mantra if we’re not careful.
In short, we’re teaching him to be the anti-success, the anti-hero, the least accomplished; And that, my friends, definitely ISN’T what built the great United Kingdom we see today!
Therefore, let’s get on with delivering the Brexit the people voted for on June 23, 2016 and that Parliament approved on February 1, 2017, and by extension voters re-approved via the General Election result on June 8, 2017.
And give our man a hand. He needs your help to get the country across the line.