First reaction to the Supreme Court ruling on the prorogation: What in the name of all that the law holds dear are they talking about?
Lady Hale (who is very pleasant in person) knows a thing of two, but one wonders whether her personal views, which she has not been shy of expressing, are coming out in this. The point about a judicial review is that a decision can only be overturned if it is made without authority, or outwith the extent of that authority or the purposes for which that authority was given. If the authority is from an Act of Parliament, you read the Act. For a prerogative power, there is no Act to read to tell the purposes for which the power exists. On what basis then is the decision made?
The full text of the judgment is telling. The relevant sections are not law: they are politics.
The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.
Parliament is not sovereign though (and neither is the Supreme Court): sovereignty is a partnership, a joint venture, and is vested in The Queen in Parliament. An unlimited power of prorogation does belong to the Crown and has previously been exercised, and no Act of Parliament has changed that other than do demand that parliaments be held “frequently”. There is no logical way to extend “frequently” to imply a rule that the Supreme Court is now implying; it is a made-up rule.
Furthermore, even into the twentieth century a three-month prorogation was commonplace. Now are we to believe that this was a scandalous, unlawful practice?
It appears that all the textbooks will have to be rewritten: the basic texts on constitutional law tell us that the Queen may call Parliament or not, but if she does not then taxes expire and the authority to maintain the army expires. The Supreme Court judgment seems to be saying that there is some hidden law, known to none but themselves, that says when a Parliament must be summoned and dismissed, and why. I hope that the judgment detail will explain when in the Reign of Queen Dick this law was passed.
Are we now to look at constitutional conventions in a new light? The textbooks all tell us that conventions are not law and can be changed by practice over time – are they now law, or must changes receive the assent of the Supreme Court?
I begin to suspect that in the change from “House of Lords” to “Supreme Court”, the justices have begun to model themselves too much on the American version, and the American Supreme Court is a satire on law.
The judgment was issued as a single, collegiate judgment in the names of Lady Hale and Lord Reed. We are assured was unanimous, but it is most improbable that it was. In the charged political atmosphere, it was politic to present the judgment as unanimous, to deter journalists and activists from targeting particular justices. More likely, the decision was reached by a bare majority. When the judges begin to retire over the next few years, we may learn more in their memoirs.
So now we find Parliament is not prorogued, and must return, in the middle of the party conference season, or be prorogued once again in different form (to be followed by another set of expensive legal proceedings, no doubt). The House of Commons which returns to the benches is the same, dysfunctional House as before of course.
The Constitution must be reliable. It used to be. Rules are laid down and can be followed. It is no longer so. If we ever have a functioning parliament again, it must be their duty to sort this growing legal crisis out.
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