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The Rule of the Law: The Supreme Court’s Blow to the PM

On the 24th of September 2019, the Supreme Court ruled that Boris Johnson’s decision to suspend Parliament was unlawful. What happened exactly? And what is going to happen next?

By Nathan Weavers

The highest court in the land has produced a result that has changed what the period between now and Exit Day on October 31st will look like. The Supreme Court’s ruling supports the decision taken by Edinburgh’s Court of Session two weeks ago to rule that the Prime Minister’s prorogation of Parliament was unlawful.

As can be expected with such an important decision, the views of MPs are wide-ranging. Michael Fabricant, a Tory MP who voted to leave the EU in 2016, summed up the decision as “a victory for the law but not a victory for democracy” while his former Conservative colleague, Dominic Grieve, said in response to the Court’s ruling that it was “perfectly obvious that the reason for suspending Parliament was bogus”.

The impact of the unanimous decision is, arguably, not particularly consequential in itself; Parliament resumes sitting. However, it is the after-effects that will change Westminster politics over the coming weeks.

Commons Speaker John Bercow was quick to confirm that he and his counterpart in the Lords had agreed for Parliament to sit the following day. This will no doubt lead to a series of urgent questions being tabled to ask the Brexit Secretary what legal advice the Government had received prior to prorogation.

Yes, Parliament can resume debating, but it was clear before prorogation that nothing can be done as domestic legislation is highly unlikely to be passed by a minority government and legislation has been enacted to make it difficult to leave the EU without a deal.

In times like this, a General Election is likely to be called to break the deadlock, like in October 1974 when Harold Wilson sought to achieve a majority which he had failed to do eight months earlier. However, the Labour Party voted against the Prime Minister’s motion to hold an early election earlier this month despite calling for one frequently almost since the 2017 Election.

With no parliamentary majority and no way to hold an election, the Prime Minister does not have many levers to pull and, while Parliament will now be re-opened, it seems unlikely that Parliament will navigate a way out of this deadlock without a General Election.

It is important to note that the Commons is usually in its Conference Recess during this point of the year. While some have claimed that the scheduled prorogation dates would have made it an unusually long period if, indeed, it was brought forward to make way for a Queen’s Speech, others argue that only around four days were lost due to the prorogation. This makes some MPs’ claims that they needed the time lost to prorogation to debate Britain’s withdrawal from the EU questionable. 

One big question is whether or not the Prime Minister is going to resign. Jeremy Corbyn used his platform at his party’s conference to call for Boris Johnson to resign shortly after the Court’s ruling. Many are calling for the PM to resign for misadvising the Queen, but there is no precedent for this as this very circumstance has not happened before with the considered context surrounding it. 

The most recent example of prorogation – for something other than making way for a Queen’s Speech – was when John Major suspended Parliament in 1997 before the “cash for access” report could be published. Major did not resign, though this prorogation did lead into the 1997 General Election.

While the Supreme Court ruled that the shutting down of Parliament was unlawful as it prevented the legislature from doing its job, whether the Prime Minister himself had done anything illegal as an individual is unclear. It is for this reason that Boris Johnson’s resignation seems unlikely.

The given reason for proroguing Parliament was to end the longest parliamentary session since with Civil War and to allow a Queen’s Speech to set out a new domestic agenda. However, many have speculated other reasons for the shut-down. One of these includes the idea that the entire prorogation was just a dead cat – that is, getting everybody to talk about the prorogation rather than Brexit. This would allow the Prime Minister to negotiate with the EU under different circumstances and increase the chances of a deal. 

The chances of a new deal from the EU is considered by some to be back on the table after the President of the European Commission last week said that he was open to the backstop clause being deleted from the agreement that Theresa May had negotiated. However, the resumption of Parliament sitting reshuffles the deck once again.

Furthermore, with a Zombie Parliament unable to pass any legislation, the Prime Minister may have temporarily shut down an institution which was ineffectual anyway. The Prime Minister may have thought that preventing MPs from talking about Brexit in the public eye could have been enough to renegotiate a deal with those on the continent.

Some headlines in tomorrow’s tabloids may frame the eleven justices who reached their unanimous decision as thwarting democracy, whilst others will underline the decision as one upholding democratic institutions. However, no matter what your view on their impact on democracy, the justices have certainly upheld the law. What happens next will be a result of this overturn and the return of action in the Commons.

Nathan Weavers is a final year Politics student at the University of Surrey.

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