Wednesday, 28 August 2019
Last week, I was looking through my notes for potential blog posts on various planning law issues, but they all seemed deeply boring, and I couldn’t be bothered to write them up for the time being. (Maybe it was the heat!)
By contrast, politics has suddenly got even hotter than the recent weather. If this were simply run-of-the-mill day-to-day politics, it might not merit much attention, but it is no exaggeration to assert that the country is now facing a major constitutional crisis, which raises crucially important issues of constitutional and administrative law, including the relationship between parliament and the executive, the constitutional position of the monarchy and the exercise of the royal prerogative.
Much of the background has been covered in my recent posts in this blog, and so doesn’t need to be repeated. It had become clear that a Commons motion of No Confidence was not the way forward in the current crisis, and that the appropriate route would be by means of a legislative process that seeks to prevent a No Deal Brexit by forcing the further postponement of Brexit while parliament thoroughly debates a potential course for this country’s future. A first and very important step towards the start of that process was taken yesterday with the agreement reached between all the opposition parties to pursue the legislative route. (The fact that no Tory MPs were formally involved in this agreement is of no significance; they would have come under immense pressure from their party if they had openly declared their support at this stage.) In view of the further development discussed below, it may be necessary to rush this legislation through both houses of parliament very quickly, but parliamentary procedure does enable this to be done if necessary.
It was no doubt the threat that MPs, the majority of whom are opposed to a No Deal Brexit, might very well succeed in passing legislation to prevent such an outcome on 31 October that precipitated today’s government announcement that they intend to prorogue parliament between 10 September and 13 October. The entirely bogus excuse, as I predicted some weeks ago, is that this is just a routine procedure for bringing the current parliamentary session to a close, before a new session starts with a Queen’s Speech on 14 October. Whilst it is true that the current session of parliament has lasted longer than any parliamentary session since the 17th century, there is no pressing need to bring the present session to an end, especially at this critical juncture in the nation’s affairs. The suggestion that a Queen’s Speech is required in order to introduce all sorts of new legislation on desirable social initiatives, to be paid for by shaking the Magical Money Tree, is utterly spurious. Most of the government’s recently announced spending plans do not require legislation, and so a Queen’s Speech is not required in order formally to announce them.
It is not only opposition MPs and the so-called ‘rebels’ among Tory MPs who have described this proposed use of the royal prerogative as a constitutional outrage. The Speaker of the House of Commons and various constitutional experts have joined in the chorus of condemnation of this thoroughly improper move on the part of the government. It is a moot point as to whether the Queen can be persuaded that this prorogation would be constitutionally improper, and should therefore be refused. The mechanism for doing so is uncertain, but in addition to any representations that might be made to the monarch via her Private Secretary, I wonder whether there might perhaps be some means by which members of the Privy Council (either individually or collectively) could make their views known to the monarch.
Meanwhile, the case of Cherry and others v Advocate-General in the Scottish Court of Session, which was due to be heard in the first half of September, is now to be the subject of a motion by the petitioners to bring forward this case urgently, to be heard possibly in the next few days. This action is specifically aimed at preventing the improper use of the royal prerogative to prorogue parliament. This is an area of constitutional law that is far from clear, and so the outcome cannot be predicted with any certainty, but the bringing of this action was timely and could potentially offer a solution to the current constitutional crisis (although it might necessitate a trip to the Supreme Court in order finally to resolve the issue). In the meantime, it is to be hoped that the Court of Session might issue an interim interdict pending any appeal to the Supreme Court.
I had just one complaint from a reader about my digressions from planning law in this blog, but I suspect that he was just a frustrated Brexiteer. If there are any important developments in planning law in the near future, you may rest assured that I will discuss them here, but the crucial issues of constitutional and administrative law that are thrown up by current and ongoing political developments are too important to be ignored. Leaving aside Brexit, they are of enormous importance as precedents for the future of our constitution, and in particular for future relations between parliament and the executive. It is no exaggeration to say that they could have a huge potential impact on our civil liberties in the future.
UPDATE (5.00 p.m.) It is now clear that at a Privy Council meeting earlier today, the Queen approved an Order in Council for the prorogation of parliament. However, the Privy Council is an arm of the executive (not of the legislature) and, as such, its decisions are susceptible to judicial review in the same way as those of any other part of the executive (as well as those of other public bodies and authorities). The pending action in the Court of Session could still therefore lead to the striking down of this prorogation by the court.
SIGN THE PETITION. Over 1.3 million people have already signed the online petition against the prorogation of parliament. Do please sign it, and get your friends and family to do so as well. It can be found here.
© MARTIN H GOODALL