The Supreme Court Has Ruled Boris Johnson's Suspension Of Parliament Was Unlawful
The judgment is the most constitutionally significant in recent history — and a massive blow to the authority of the prime minister.
The UK’s highest court has ruled that prime minister Boris Johnson’s decision to prorogue Parliament for five weeks in the run-up to the agreed Brexit deadline was unlawful.
The House of Commons will sit on Wednesday morning, speaker John Bercow announced, with "full scope" for urgent questions, ministerial statements, and emergency debates.
In the most constitutionally significant judgment of recent times, the 11 judges of the Supreme Court declared that Johnson’s advice to the Queen to prorogue Parliament was unlawful because it had frustrated the ability of Parliament to carry out its constitutional functions of scrutinising the government without reasonable justification.
Delivering the unanimous judgment, president of the court Baroness Hale said: "The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 justices."
The ruling was excoriating about the prime minister's decision. "This was not a normal prorogation in the run up to a Queen's Speech. It prevented Parliament from carrying out its constitutional role," the judges said. They concluded: "The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect has been put before the court."
The judgment is a massive blow to the authority of the prime minister, who has seen his attempts to force through Brexit by Oct. 31 blocked first by MPs and now by the judges. The government’s counsel assured the Supreme Court that Johnson would abide by its decision.
Speaking to reporters in New York, where he is attending the UN general assembly, Johnson said, "I strongly disagree with this decision of the Supreme Court. I have the utmost respect for our judiciary. I don't think that this was the right decision... I think it's time we took things forward."
Johnson said that his attempts to secure a Brexit deal were "not made much easier by this kind of stuff in Parliament or in the courts".
He added: "As the law stands, we leave on Oct. 31, and I am very hopeful that we'll get a deal. And I think what the people of the country want is to see parliamentarians coming together, working in the national interest to get this thing done, and that's what we're going to do."
Reporters travelling with the PM quoted a Downing Street source saying that Johnson intended to fly back to the UK overnight and would hold a call with cabinet ministers today.
Bercow welcomed the judges' decision. In a statement immediately after the ruling was delivered, he said: "In reaching their conclusion, they have vindicated the right and duty of Parliament to meet at this crucial time to scrutinise the executive and hold Ministers to account. As the embodiment of our Parliamentary democracy, the House of Commons must convene without delay. To this end, I will now consult the party leaders as a matter of urgency.”
In a second, televised statement he said he had spoken to party leaders or their representatives and said he had told the House authorities to prepare for parliament to resume at 11:30am on Wednesday, which will in effect put an end to the Labour Party's conference a day early.
"As you all now know that judgment is that the prorogation of Parliament is unlawful because it prevented or frustrated Parliament in the discharge of its core duties and it did so at a crucial time for our country," he said.
"The citizens of the UK are entitled to expect that Parliament does discharge its core functions, that it is in a position to scrutinise the executive, to hold ministers to account, and to legislate if it chooses. In light of that explicit judgment, I have instructed the House authorities to prepare not for the recall — prorogation was unlawful and is void — but to prepare for the resumption of the business of the House of Commons."
Labour leader Jeremy Corbyn took to the stage at the party's annual conference in Brighton earlier to say that he would be contacting the speaker and asking that Parliament be recalled.
He told delegates: "The Supreme Court has just announced its decision. And it shows that the PM has acted wrongly in shutting down Parliament. It demonstrates a contempt for democracy and an abuse of power by him, and the Supreme Court therefore passes the baton to the speaker to recall parliament.
"I will be in touch immediately to demand that Parliament is recalled so that we can question the prime minister, demand that he obeys the law that’s been passed by Parliament, and recognise that our Parliament is elected by our people to hold our government to account.
"A Labour government would want to be held to account. We wouldn’t bypass democracy. And I invite Boris Johnson in the historic words to consider his position."
However, in his keynote speech to the conference on Tuesday evening, Corbyn indicated that he would not be pursuing a vote of no confidence in the prime minister or seeking a general election until MPs were able to guarantee that Britain will not leave the European Union without a deal.
The Labour leader told delegates: "This crisis can only be settled with a general election. That election needs to take place as soon as this government’s threat of a disastrous no deal is taken off the table. That condition is what MPs passed into law before Boris Johnson illegally closed down Parliament.
"It’s a protection that’s clearly essential. After what has taken place no one can trust this government and this prime minister not to use this crisis of their own making and drive our country over a no deal cliff edge in five weeks’ time."
In a briefing following the speech a Labour spokesperson said that Corbyn had been in touch with other opposition party leaders, and said that while they intended to use "every mechanism we can" to bring about an early election, they would want to be sure not to risk a no deal outcome.
Shadow Brexit secretary Keir Starmer told BuzzFeed News that the fact the judges were unanimous illustrated the weakness of Johnson's case. "It is extraordinary, it’s 11 justices — that’s the strongest possible court you could have making a very clear judgment that the PM has acted unlawfully and hasn’t put forward any justification for his actions."
He said MPs should reconvene as soon as possible. "My reading of it would be firstly that Parliament, not being prorogued, is still in session. And therefore we should be meeting as soon as we can. We’re not closed down. It also means that we won’t have a Queen’s Speech because the parliamentary session has not been brought to an end. So frankly the sooner we get back to Parliament and start challenging and defeating the government the better."
Liberal Democrat leader Jo Swinson also called for Parliament to be recalled, saying in a statement: "This shutdown was an unlawful act designed to stop parliament doing its job and holding the government to account. Given this verdict, parliament should be sitting so that we can continue to question the Conservative government on their disastrous Brexit plans.
“This verdict has been unanimously agreed by experienced judges who have considered the case on its merits, acting as impartial guardians of our democratic system. The rule of law is an important pillar of our democracy, and those looking to use this opportunity as an excuse to attack these judges would be not only attacking them, but also the entire principle of our legal system."
SNP MP Joanna Cherry QC, the lead petitioner in the Scottish case, said in a statement immediately following the Supreme Courts ruling: "Parliament must resume without delay, so we can hold the Tory government to account on its Brexit plans, which threaten to plunge the UK into recession, destroy 100,000 Scottish jobs, and inflict lasting harm on living standards, public services and the economy.
"Boris Johnson should resign. His behaviour has been disgraceful and his position is untenable — if he had a shred of integrity he would jump before he is pushed."
During the Supreme Court hearing, the government's counsel assured the judges that Johnson would abide by their decision, whichever way it went. But the prime minister and senior ministers have repeatedly refused to rule out proroguing Parliament again.
The court was ruling on two separate cases, one from England, one from Scotland, which had come to contradictory conclusions on the central question of whether the matter of prorogation was "justiciable", meaning something that judges could rule on. The second question was whether Johnson had acted unlawfully in this instance.
A case brought by businesswoman Gina Miller failed at England's High Court, which ruled that prorogation was solely a political matter and not one for the courts, but Lord Burnett, the lord chief justice, said Miller could immediately appeal to the Supreme Court, because of the important points of law at stake.
In the meantime, the Court of Session in Edinburgh, Scotland’s highest court, ruled that the prime minister had acted unlawfully because this decision to prorogue Parliament was not for a valid reason, but “had the purpose of stymying parliament”.
Representing those who had brought the Scottish case, including SNP MP Joanna Cherry, Aidan O’Neill QC argued in the Supreme Court that the government’s actions were “unlawful and an abuse of power”.
He urged the judges to uphold the Scottish decision and dismiss the government's appeal, by referencing the US supreme court case which decided that African Americans could not be American citizens.
O’Neill said: “I say to this court, don’t let this case be your Dred Scott moment. Instead stand up for the truth, stand up for reason, stand up for unity in diversity, stand up for Parliament, stand up for democracy by dismissing this government’s appeal and uphold a constitution governed by laws and not the passing whims of men.
“We’ve got here the mother of parliaments being shut down by the father of lies.”
Representing Miller, Lord Pannick QC was first to argue his case on day one of the hearing. He told the judges that “the exceptional length of the prorogation in this case is strong evidence that the prime minister’s motive was to silence Parliament for that period because he sees Parliament as an obstacle to the furtherance of his political aims.”
Returning to court on the final day of the hearing, Pannick dismantled each of the government’s arguments in his closing remarks, arguing that Johnson had acted “beyond the scope of his powers", and that there was “no rational reason” for the long prorogation.
Pannick stressed the political importance of the weeks up to Oct. 31, saying: "This prorogation has prevented Parliament from carrying out its scrutiny of the executive at a time when the constitutional principle of the executive being answerable to Parliament is of vital importance."
He asked the court to rule as quickly as possible, suggesting Parliament could return this week. “The remedy we seek is that the prime minister's advice to Her Majesty was unlawful. We respectfully ask the court to make such a declaration as soon as possible because time is of the essence."
Putting forward the government’s case on the first day of the hearing, the advocate general for Scotland, Lord Keen, said the courts “must not cross the boundaries and intrude upon the business of Parliament,” and told the court that in actual fact only around seven sitting days would be lost as the five-week suspension covered the planned break for party conferences.
When questioned by Supreme Court justice Lord Kerr, Keen could not rule out the possibility that the prime minister may seek to prorogue Parliament a second time, saying: “I'm not in a position to comment on that. That will have to be addressed by the decision maker."
However, Keen assured the judges that the government would comply with any court ruling, saying: “If the court finds it was unlawful, the prime minister will take the necessary steps to comply with any declaration made by the court.”
On the second day, Sir James Eadie QC, representing the government, said that Parliament could have done more to prevent Johnson from shutting down Westminster, telling the court: “Legislation could have been added to control the prorogation after it had been introduced.”
One sticking point for the government’s lawyers was that the prime minister had not provided a witness statement to detail his reasons for the prorogation. One of the justices, Lord Wilson, questioned Eadie on this, saying it was “odd” that no such witness statement had been produced. Eadie told the judge that government documents provided evidence of the reasons for the prorogation.
On the closing day of the hearing, the court heard a damning intervention on behalf of Sir John Major. In an unprecedented move, Johnson faced harsh criticism in court from a former prime minister — and one from his own party.
In his written submission, drafted by the former PM's counsel Lord Garnier QC and two legal colleagues, he argued that the court should intervene to stop the prorogation.
“The current factual picture, on the material which is available and with regard to the absence of evidence which ought to be available but has not been provided, is deeply concerning,” Major’s submission said.
"The Court is under no obligation to approach this case on the artificially naïve basis that the handful of documents, the contents of which nobody has been prepared to verify with a statement of truth, should nevertheless be assumed to be entirely accurate and complete when even members of the Cabinet do not appear to believe them.”
In her closing remarks, Lady Hale, the president of the Supreme Court, stressed that the judges would not be considering wider issues around Brexit — territory that was strayed into throughout the three-day hearing, particularly during an oral intervention by Ronan Lavery QC, on behalf of Raymond McCord who had lost a similar case in the Northern Irish courts.
"I must repeat that this case is not about when and on what terms the United Kingdom leaves the European Union," Lady Hale said, adding that the court was "solely concerned" with the lawfulness of the prime minister's decision to advise the Queen to prorogue parliament.
However, on the question of prorogation, the judgment was damning, and likened the order to suspend Parliament to "a blank piece of paper".
The ruling from the judges read, "It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason — let alone a good reason — to advise Her Majesty to prorogue Parliament for five weeks... We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful."
The judges ruled that in the absence of evidence to the contrary, the advice that Johnson had given to the Queen to prorogue Parliament had been beyond the scope of his powers.
"That advice was unlawful," the judgment read. "It was outside the powers of the Prime Minister to give it... This led to the actual prorogation, which was as
if the Commissioners had walked into Parliament with a blank piece of paper. It too
was unlawful, null and of no effect."