Tuesday, 24 September 2019

The most important constitutional case in living memory

Readers should hardly be surprised that I am devoting a blog post today to what by any measure is a more important judicial ruling than any that has been delivered for as long as anyone can remember. Today’s judgment of the Supreme Court is indeed momentous.

The Supreme Court had to address two main issues – first, whether the prorogation of parliament and the procedures leading to that prorogation are justiciable at all, and secondly (if that question was answered in the affirmative) whether these procedures, in the form and manner in which they were followed, were in practice unlawful. In the event of the Court finding that these procedures were vitiated by illegality, a third issue to be addressed was the precise legal effect of that unlawful conduct, and what relief the Court should grant in order to remedy such illegality.

The Court delivered a unanimous decision of all 11 Justices of the Supreme Court. The decision could not have been clearer. They held that this issue is undoubtedly justiciable (and has been since at least 1611). The prorogation was not ‘a proceeding in parliament’, and was not therefore immune from judicial review under the Bill of Rights. They also held that not only was the procedure leading to prorogation unlawful, but this also rendered the prorogation itself unlawful. They therefore upheld the declaration of the Inner House of the Court of Session that both the Order in Council and the prorogation itself was “void and of no effect”. Parliament has not therefore been prorogued, and it is open to the Speaker and the Lord Speaker to make immediate arrangements to resume the sitting of both Houses (just as I suggested in a previous post a few days ago).

It follows (although the Court did not have to go on to say this) that any further attempt by the Prime Minister to prorogue parliament would be equally unlawful if it has the effect of preventing parliament from continuing to hold the executive to account and to transact urgent business in the extraordinary circumstances facing the country in the next few weeks. It was the effect of the prorogation, rather than its motivation, that led to the prorogation being quashed, and this makes it much more difficult for a further prorogation to be lawfully concocted. It may, in fact, be necessary to cancel or delay the Queen’s Speech on 14 October. In any event, the Court made it clear that a prorogation for this purpose would need to be no longer than four to six days.

Most of the noise surrounding the current litigation, much of it from ill-informed and ill-disposed partisans, has entirely missed the true significance and importance of this case. Although ‘Brexit’ was the immediate trigger for this litigation, today’s judgment of the Supreme Court was not actually directed to that controversy. As the President of the Supreme Court, Lady Hale, has emphasised, this judgment has absolutely no effect on how, when or whether the UK leaves the European Union. The two appeals before the Court on this occasion were solely focused on the relationship between parliament and the executive, and the role of the courts in adjudicating on this relationship and on the exercise of the purported powers of the executive if or when they impinge on the sovereignty of parliament and its constitutional role.

Let us be absolutely clear. In this country we adhere strongly to the Rule of Law. As Lord Denning put it with characteristic clarity: - “Be you never so high, the law is above you.” There is no person and no institution (even the Prime Minister purporting to exercise the royal prerogative) who is immune from judicial supervision. Contrary to the submissions of Lord Keen to the Supreme Court, there is nothing that is ‘forbidden territory’ to the courts. The judges of our superior courts are the bulwark of our liberty, both individually and collectively, and the guardians of our constitution.

It is therefore essential that the role of the courts in adjudicating on such matters is recognised and acknowledged, and that the judgments of the courts are treated with respect and obeyed. There must be no repetition of the disgraceful conduct of one newspaper in calling the judges “Enemies of the People” following a judgment in previous litigation on similarly important constitutional issues. The then editor of that newspaper was lucky not to have been hauled before the court for gross contempt, and made to deliver a grovelling apology on pain of immediate incarceration until or unless his newspaper’s egregious contempt was purged.

ADDENDUM The Speaker of the Commons, John Bercow, has confirmed that the Commons will resume its sitting at 11.30 a.m. tomorrow morning (Wednesday). Prime Minister's questions will not be held tomorrow, as they usually are on a Wednesday, but Bercow made it clear that there will be the opportunity tomorrow for MPs to submit urgent questions to ministers, for ministerial statements to be made to the House and for emergency debates to be held under Standing Order 24.



  1. As you will recall, Rees-Mogg (aka Ree Smug, who if it is all possible is even more pompous than his father was) was reported as having asserted back in January “If the House of Commons undermines our basic constitutional conventions, then the executive is entitled to use other vestigial constitutional means to stop it, by which I basically mean prorogation [suspending parliament].

    "Prorogation normally lasts for three days, and any law that is in the process before prorogation falls. I think that would be the government’s answer. That is the government’s backstop, to use a choice phrase."


    Then he was a back-bencher of dubious authority. Now, as Leader of the House of Commons, he's reported as asserting that the Justices of the Supreme Court have launched a constitutional coup.


    Also reported by others (BBC, Daily Mail, Telegraph, etc.)

    While the conclusions and decisions of the Court may be considered unconventional (as suggested on BBC Radio 4 Today this morning by Jonathan Sumption - but in response to a government that has been revolutionary in trampling over constitutional conventions in attempting, Ree Smug-like, to get its way by any means possible), this government seems to be sailing very close to launching its own coup, characterised by a slogan of the the People v. MPs (in fact now targeting the whole 'establishment') ........ And this in face of a ruling that if read through carefully is an assertion of conservatism, with the respective relationships between Executive, Parliament and the Courts set out impeccably.

    Time maybe for the Cabinet to be brought before the Court to be dealt with. Parliament should also hold this Cabinet to account, though it's clear that relying on any of them following any (conservative) normal conventions unless it is in their direct interest to do so is a hollow hope.

    1. The attitude of the government in response to the Supreme Court judgment is typically arrogant. They say they will "respect" the judgment, and then in the next breath they say they "profoundly disagree with it" and that it was "a big mistake."

      The fact, which everyone must accept, is that the Supreme Court was declaring what the legal position actually is. This was not a radical departure in the law; it was derived from well-established legal precedents stretching back as far as the 17th century. Just because the government had conveniently forgotten the legal underpinnings of our constitution does not make the judgment of the Supreme Court in any way revolutionary or innovative. IT IS SIMPLY THE LAW.

      I think the comments on the judgment by ministers so far have fallen somewhat short of amounting to contempt of court, but it is quite clear that the supervisory jurisdiction of the High Court, and if necessary the Supreme Court, can be swiftly called in aid if the government transgresses in any way in the coming weeks.

  2. Nowt to do with Brexit, except perhaps a tortuous metaphor about local politicians rebelling against the centrist (super)state, but I'd be interested to know your views on The Rt Hon Bob's direction to SODC. From a quick scan I don't think the SS powers in S21A 2004 POCA actually grant powers for a holding direction for anything other than a S21 direction, and it looks to me like a S21 direction can only stop an LPA moving forwards, not backwards...?



    1. As Richard says, this has nothing to do with the Brexit, but it does get us back to planning. And it’s a subject in which I do have some interest (although not a professional one).

      I haven’t had time to look at the SofS’s powers (as I’m up to my eyes at the moment in page proofs for the Third Edition of A Practical Guide to Permitted Changes of Use). So I don’t know whether his holding direction is lawful or not. I suspect, however, that the government’s reserve powers are probably framed sufficiently widely to enable the SofS to ‘take over’ the Local Plan and deal with it centrally.

      The query Richard raises is, however, relevant to the issue discussed in the blog post above. Is the government acting within its legal powers or not? If the SoS’s holding direction turns out to have been ultra vires, then it is susceptible to judicial review in the same way as the unlawful prorogation of parliament was. I can see several angles of attack that SODC might explore (including the Wednesbury principles). I suggest they should consult their lawyers as a matter of urgency.