Doesn’t the legal profession look decidedly dodgy? A Scottish High Court decides one thing, an English High Court decides the opposite, and the Supreme Court has to jump one way or the other. Having had their verdict so completely reversed, shouldn’t these foolish English High Court judges be called upon to resign? After all, the next level up found them to be completely wrong!
Though for the record, we think that the English decision was the correct one; proroguing Parliament is a political decision, and not a suitable arena for a court to intervene.
Also, more clarity is required from Lady Hale. Click here for the summary judgement. All of the press has quoted her conclusion, that “The decision to prorogue Parliament was unlawful.” So which law exactly did Boris break? He is said to have misled the Queen, but in what way? The process is totally ceremonial. When a Prime Minister asks for Parliament to be prorogued, the Queen doesn’t think a little, scratch her chin and say yes or no, depending on what advice she has heard. She is going to agree. Proroguing Parliament was always in the gift of the PM, and so it remains. To state that he can only choose a time with no political impact is worse than naïve.
Lady Hale has suggested that there is too much going on for Parliament to be stopped – but in reality, Parliament has already prevented No-Deal – and any putative Deal will only come back from the EU summit on 17 October, when Parliament would have already reconvened in time to reconsider it. So what exactly does Lady Hale think could have happened in the meantime, apart from the usual shouting and point-scoring?
To us, this judgement has;-
a) Highlighted that different judges make completely diametrically opposite decisions based on the same facts.
b) The senior judiciary seem to have entered the political fray, supporting the anti-Brexit, elite, establishment side of the argument.
Both of these facts diminish the judiciary.
Additionally, the judges seem to have decided that a PM can only prorogue Parliament when “things are quiet”, and for a less time than 6 days of sitting. There is no precedent for these views, and so the Judges, rather than applying the democratically determined law, seem desperate to make up their own version of what seems sensible. This highlights their unaccountability.
Like Parliament voting against every Brexit alternative, the Judges have not outlined what would have been acceptable practice, merely striking down what they see as unacceptable. How can this be? Since there is no accepted precedent on how long or under what circumstances proroguing can take place, the judges have effectively made up the law. This is unacceptable, and illustrates what a dangerous step the Supreme Court has taken. To avoid highlighting the fact that the judiciary now thinks it can make up the law, they have not clarified when or under what circumstances Parliament can be prorogued, and for how long. Would BoJo have been okay if he had made it for 4 weeks and 6 days rather than 5 weeks? Or if he had prorogued it for the whole summer when they were all on recess anyway? Brexit has been going on for three years now. When would it have been acceptable to have a new Parliament? If the Supreme Court had made these clarifications, it would have made them look as if they saw themselves above Parliament, but without such explanations, they look to be just making a political statement.
Going forward, a wise government will codify these precedents, and start to work on a written constitution, to include who can prorogue Parliament, for how long and under what circumstances. This would at least have the benefit of preventing judges making random interpretations of what is or is not acceptable. At that time, all sorts of anomalies will need to be addressed, such as our unelected upper chamber and the West Lothian question. What a can of worms! Woohoo! Politics is going to be fun for years to come!