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On the 24 September 2019, the Supreme Court of the United Kingdom pronounced a momentous and historic ruling. Boris Johnson, the Prime Minister, had given unlawful advice to the Queen to prorogue Parliament for five weeks. This ruling has significant and controversial implications and effects for the not just the process of Brexit, but of the very constitution of the United Kingdom. Whatever happens in the Brexit saga going forward, this decision will be hallmarked as an important step to whatever destination is reached.
Prorogation is an unusual measure that is open to a government. It is rarely utilised or thought needed by any government that can command a majority in the House of Commons and is only brought forward for a short period of time to prepare for a Queen’s speech.
Technically, prorogation is used for preparing a new Queen’s (or King’s) speech. A new government would want this to introduce a new legislative agenda into the House of Commons. This is important because the government has the responsibility and desire to implement what is has promised to do in a general election through its manifesto. This was the main justification given by the present government. Boris Johnson had argued that his new government – after succeeding Theresa May as leader of the Conservative Party and thus Prime Minister also – needed to introduce a Queen’s speech to introduce its own legislative agenda.
However, the Prime Minister advised the Queen to prorogue Parliament for five weeks in total, losing 24 working days. Compared to prorogation in 2016, where Parliament was closed for four working days, and in 2013 where it was closed for thirteen working days. This was one of the central arguments brought against the government by campaigners arguing that not only was the prorogation extreme, but Boris Johnson was not being forthright in his reasoning for the prorogation itself. Led by the MP Joanna Cherry QC, the businesswoman Gina Miller and Jo Maugham QC the government was brought to court over its use of prorogation. The Supreme Court decided – unanimously – against the government, and ordering Parliament to reconvene at the earliest convenience.
This is a highly unusual event in not just the Brexit saga, but also in our constitutional history. Never before has a court ordered the recall of Parliament and ruled that the executive does not have the prerogative to enact prorogation. Both the Court of Session in Edinburgh and the Supreme Court ruled that it was within the remit of their role to rule on such a matter. However, the ruling that the Royal prerogative did not allow the government to prorogue for five weeks or to (as the Court of Session put it) ‘stymie Parliament’, then these sound-like political arguments.
This is perhaps an important indication that we could well do with a written constitution, but that is a much wider conversation that goes beyond the extent of the prerogative. Opponents of Boris Johnson may indeed suspect his motives, but the House of Commons has absolutely failed the British people, especially those who voted to leave the European Union, over the past three years. They rejected Theresa May’s deal three times and have refused to say what they would vote for – apart from rejecting a ‘no deal’ scenario. The House of Commons is out of step with the electorate on this issue, and the best way to resolve it is to have a general election.
A general election would give the people the opportunity to reshape the Commons in favour of either a majority of MPs committed to leaving the European Union or a majority against. It was probably impossible to expect a House of Commons that largely does not support leaving the EU in any fashion to back any version of Leave. It is time for a Prime Minister who enthusiastically backs leaving the European Union to have his chance at not gaining legitimacy for his position on Brexit but also for his wider domestic agenda. It is right and proper that a new government should have to go before the people to seek approval for what it wants to do.
Time will soon tell if MPs agree with this sentiment. They have been successful in stopping prorogation, however in an election setting they may fail to shake the image of being an out-of-touch elite, doing anything and everything to frustrate the vote of 17.4 million people who want to leave the European Union. If they refuse to leave the EU in any shape, then the next election – whenever it comes – will most likely deliver them a very unwelcome surprise.