A reminder of what was at stake in hearing on prime minister’s suspension of parliament

What issues were at stake?

The two main questions before the supreme court were whether Boris Johnson’s advice to the Queen to suspend parliament for five weeks in the middle of a constitutional crisis over Brexit was lawful, and whether the courts had the authority to intervene. Aidan O’Neill QC, the advocate who led on the anti-prorogation case in Scotland, had insisted the judges had a duty to ensure the prime minister was not abusing his powers.

The UK’s unwritten constitution is a tripartite system, with parliament, government and the courts playing supposedly complementary roles. O’Neill successfully persuaded three senior Scottish judges 13 days ago that Johnson was abusing the government’s powers to suspend parliament in order to prevent it from carrying out its constitutional duties to scrutinise and approve the government’s decisions on Brexit.

Yet judges in London and Belfast had ruled in two very similar cases that Johnson’s action was lawful: they supported the government’s views that prorogation was a purely political decision and the courts had no right to interfere.

How did it end up in the supreme court?

The competing English and Scottish court decisions were immediately sent to the UK’s highest court on appeal; the justices rushed back from holiday to fast-track the hearing. A panel of 11 judges was assembled, the largest number they can convene, to hear the case. Twelve judges are on the bench but an odd number must sit to prevent deadlock.

How did the court reach its decision?

Much of the hearing was devoted to the issue of whether Johnson’s decision – exploiting residual, royal prerogative powers – was “justiciable”, meaning that it could be subjected to examination by a court. Prerogative powers are often subject to legal challenge.

The prime minister’s right to recommend prorogation to a monarch was not in doubt. The question was whether suspending parliament for such a long period at a crucial, constitutional moment without sufficient reason undermined parliament’s authority and duty to subject the government to scrutiny.

The justices sidestepped challenges by government lawyers who claimed the court would have to specify precisely the number of days it would be legal to suspend parliament.

Having decided those questions, the 11 justices then had to address what remedy was appropriate in such politically sensitive circumstances.

Quick guide The six key paragraphs in the supreme court's verdict Show Hide That the court judgment was not about Brexit “It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the prime minister to Her Majesty the Queen on 27 or 28 August, that parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not.” That the court had the right to act “The first question is whether the lawfulness of the prime minister’s advice to Her Majesty is justiciable. This court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries.“ That the prorogation was not ‘normal’ “It prevented parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Proroguing parliament is quite different from parliament going into recess. While parliament is prorogued, neither house can meet, debate or pass legislation. Neither house can debate government policy. Nor may members ask written or oral questions of ministers or meet and take evidence in committees…This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the constitution of the United Kingdom on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.” That Boris Johnson’s advice to the Queen was unlawful “The court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.“ That parliament has not been prorogued “This court has already concluded that the prime minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.” What happens next? “It is for parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next. Unless there is some parliamentary rule of which we are unaware, they can take immediate steps to enable each house to meet as soon as possible. It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.” The full judgment and the summary judgment can be downloaded from the Supreme court website.

Did Boris Johnson lie to the Queen?

The inner house of the Scottish court of sessions concluded Boris Johnson’s advice to the Queen had been “motivated by the improper purpose of stymying parliament”.

The supreme court in London, however, avoided making direct, personal criticism of the prime minister. It decided simply that the effect of a lengthy, parliamentary suspension at this time was unlawful. “We are not concerned with the prime minister’s motive in doing what he did,” the justices ruled.

Play Video Supreme court rules prorogation 'unlawful, void and of no effect' – video

They subjected the reasons given in cabinet documents, however, to searching analysis. Johnson, they said, was neglecting his wider constitutional responsibilities. “No justification for taking action with such an extreme effect has been put before the court,” the judges said.



What conclusions did the court reach?

The 11 judges ruled unanimously. They said the case was “justiciable” and Johnson’s advice subject to the law. Giving judgment, Lady Hale said: “The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries.”

They then ruled the decision to prorogue parliament was unlawful because it had “the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification”. She added: “No justification for taking action with such an extreme effect has been put before the court.”

In the most striking part of its ruling, addressing remedy, the court said the speakers in both the Commons and Lords could reconvene both houses immediately. The UK judges upheld the court of session’s ruling that the prorogation was null and void. They also stated the privy council’s decision to ask the Queen to suspend parliament was also “unlawful, void and of no effect and should be quashed”. In effect, Hale said “parliament has not been prorogued”.

Play Video 1:42 Parliament to resume after supreme court ruling, says Bercow – video

What are the constitutional implications of the ruling?

By stating in such unambiguous terms that Johnson’s prorogation was illegal, it will make it extremely difficult for the prime minister to suspend parliament again immediately for anything other than a few days. The former prime minister Sir John Major gave evidence that preparation for a Queen’s speech at the start of a new session typically required only four to six days.

The court’s unanimous conclusion in upholding parliamentary sovereignty – consistent with its ruling in the article 50 case in 2017 – places firm limits on the power of the executive and helps empower MPs.

Resolving such a crucial political crisis will inevitably enhance the supreme court’s role as vital pivot in the UK’s unwritten constitution. Other Brexit-related cases are already queuing up to lodge appeals. The justices will find it difficult to deny they are becoming a constitutional court.