This was first posted on Facebook on 18th September 2019, with support from my Ko-Fi network.
I’m not a lawyer.
I am fascinated by the UK’s uncodified constitution, which it seems entirely possible is going to be added to by the ruling of the Supreme Court from their hearing this week on proroguing Parliament.
If I were not working when the court is sitting, I would undoubtedly be annoying Marie on a regular basis by watching the Supreme Court hearing’s livestream.
The UK’s constitution with regard to Parliamentary sessions as of last week, was that the Prime Minister can prorogue Parliament any time the PM wants by having the Queen advised that Parliament is to be prorogued and the Queen’s Speech opening the next session of Parliament will take place on such-and-such a date.
No one, this week, knows what the UK’s constitution with regard to Parliamentary sessions will be next week.
The UK’s constitution exists, uncodified, in a great mass of Acts of Parliament and legal rulings. There was never a time when a few dozen important and learned men sat down to write a constitution for the United Kingdom: but for four centuries or more Parliament and judges have been making laws to drag the United Kingdom out of a medieval feudal monarchy into a modern democratic country.
And this Supreme Court ruling is one of those moments.
The Court of Session in Scotland has already ruled that Boris Johnson’s action in proroguing Parliament was unlawful, and Parliament ought to be reconvened. The High Court of England and Wales has already declared that the Prime Minister’s actions in proroguing Parliament are not justiciable. The Court of Judicature in Northern Ireland has already heard a similar case and – reserved judgement, waiting on the Supreme Court ruling.
They could rule (as the High Court did) that this area is not justiciable – that the Prime Minister proroguing Parliament is not subject to trial in a court of law. The difference between the High Court refusing to give a judgement and the Supreme Court refusing to give a judgement is that if the Supreme Court steps back and says “Officially not our business” – this leaves it up to Parliament to fight back against Boris Johnson’s prorogation.
They could rule (as the Court of Sessions did) that by refusing to provide any sworn testimony about why the PM prorogued Parliament for five weeks at this time, the Government has effectively admited that they prorogued Parliament to stop Parliament interfering with Government plans for Brexit and this was unlawful. This would stand as a weak discouragement from the Supreme Court that Boris Johnson (or any other PM) not try this lark on again.
They could go a step beyond that ruling (as the Court of Session also did) and rule that as the prorogation was unlawful, it has no effect, and Parliament must reconvene immediately. This would be an extremely powerful constitutional statement with ongoing consequences both immediate (MPs return to the Commons, bills which had been stopped go forward) and long-term consequences, which I’ll discuss later.
They could rule that the Prime Minister has the right to prorogue Parliament whenever the PM decides for as long as the PM decides, and therefore this prorogation of Parliament was by definition lawful. This would be an extremely powerful constitutional statement which effectively elevates the PM wielding the Crown powers above Parliament.
Or they could rule that the Prime Minister has the right to prorogue Parliament whenever the PM decides, but the period of prorogation should be only a reasonable length and should not be for the purpose of shutting down debate in Parliament on current affairs, and request that Parliament (when sitting) create regulations which prevent the Prime Minister from doing this again. This would be a medium-strength constitutional statement which wouldn’t elevate the PM’s Crown powers above Parliament and would put the issue of how to prevent a Prime Minister doing this again squarely back in Parliament’s box.
Or something else, which I – not being a lawyer – haven’t thought of.
(They could reserve judgement til 21st October, of course, and *then* say they’ve had a month to think about it and they’ve definitely decided the prorogation was unlawful and Parliament ought to be reconvened: oh, it was reconvened last Monday? Excellent.)
I don’t know what they’re going to decide, and nor does anyone else, quite possibly including all 11 judges.
But, just to say: if the Supreme Court orders Parliament to reconvene because the lengthy prorogation to prevent Parliament from intervening with Brexit was unlawful, this has interesting knock-on effects.
Assuming that Boris Johnson can never get his two-thirds of MPs majority to have a general election at a date of his choosing, which seems likely because no one trust Boris Johnson, it follows that how this minority government is going to be toppled is by the other method outlined in the Fixed Term Parliament Act: the government loses a vote of confidence, the leader of the Opposition and the Prime Minister have two weeks to form a government which can win a vote of confidence, at at the end of those 14 days if neither can form a government, Parliament is dissolved and 35 working days later a general election takes place.
Because votes in Queen’s Speech debates don’t count as votes of confidence, because debates on the Queen’s Speech generally last 4-6 days, because Parliament doesn’t usually sit on Fridays and Boris Johnson (if still PM) will be in Brussels on Thursday 17th/Friday 18th October, and because on Saturday 19th the Prime Minister will be legally obliged to write a letter to the EU asking for an extension to Brexit Day – because of all of these things, if Parliament remains prorogued and opens on 14th October, I would anticipate a vote of confidence against the government on Tuesday 22nd October or by the end of the week.
Boris Johnson’s government will lose that vote of no-confidence, no question. And the letter – even if Johnson delays sending it – will get sent, pp’d Boris Johnson, if necessary.
Under this situation, if neither Corbyn nor Johnson can form a new government (Johnson certainly can’t: I don’t know if Corbyn can): on Wednesday 6th November, or within a day or so, Parliament is dissolved and there will be a general election 35 working days later, which is – again, give or take – Thursday 9th January.
If the Supreme Court order the reconvening of Parliament in their judgement, and do so this Friday, 20th September, and Parliament comes back to life again –
Well, the Labour Party’s annual conference, where they make policy, is this weekend: Saturday 21st to Wednesday 25th September. The Conservatives annual conference, where they’ll decide whether or not support Boris Johnson, is Sunday 29th to Wednesday 2nd October.
Under ordinary circumstances, Parliament would be in recess during this period. But in theory, MPs could be summoned for an emergency debate on Thursday 26th September or 3rd October.
Who would summon them? Well, the Prime Minister. Usually. It seems unlikely Boris Johnson would want to, unless he thought he could finally win a vote for him to decide on a general election date on Thursday 26th September, right before the Tory conference.
But, if Parliament did reconvene on 26th September or 3rd October, and the Government lost a vote of no-confidence, that would put the date on which Parliament is dissolved if a government can’t be formed on either 10th October or 17th October.
There would still be a Prime Minister in Downing Street – there always is: Boris Johnson, even, if he refused to resign until after the next general election. He might even go to Brussels rather than recommend a caretaker-PM to do the job.
But the general election would be taking place on Thursday 5th December (or even as early as 28th November). Would this make a difference?
I think the most likely result of that general election – either in December or January – is a hung Parliament, the Tories as the single largest party but greatly diminished, and both SNP and the LibDems resurgent. Horribly, The Brexit Party Ltd might have some MPs.
But. Returning to those dates again.
If Parliament sits again on 3rd October, and the Government promptly loses a vote of no-confidence, the Rebel Alliance has 14 days to figure out how to put together a government that has a clear plan what to do with the extension – presuming the EU grant it – and can win a vote of confidence against Boris Johnson and his rump of Tory MPs. And then the caretaker-PM – not Boris Johnson – goes to Brussels on 17th October, and writes a letter to the EU requesting an extension on the 19th.
Could this happen?
I have no idea. But I note that on that previous occasion where it was suddenly evident that they had to get something done, and had a hard deadline by which it had to get done, the Rebel Alliance did demonstrably manage to achieve at least a way of blocking no-deal Brexit. Managing to put together a government of national unity which could hold together long enough to legislate and hold a referendum (six months required) or to revoke Article 50 (can be done in a day) – and only then have a general election, that’s a much, much bigger step.
So much depends on what happens within the Labour Party and the Conservative Party at their conferences – and it all depends what, and when, the Supreme Court rule on the constitutional question of proroguing Parliament.
Which, right now, nobody knows.