In a Case Where No Clear Law Existed on Prorogation, the UK Supreme Court Finds the Government Guilty
Until today’s UK Supreme Court decision… there existed no law whatsoever in the United Kingdom (nor anywhere else in The Commonwealth of Nations) as to how long and under what conditions Parliament could be prorogued by a Prime Minister.
Of course, the UK Prime Minister doesn’t act alone when proroguing Parliament as (according to House of Commons rules) the PM can prorogue Parliament only when he or she is acting in concert with the Privy Council and in agreement with the UK Head of State (which position is presently held by ‘the Queen’).
As all Commonwealth of Nations countries are based on the Westminster parliamentary model, every country in The Commonwealth is now directly and measurably affected by this new precedent, and this case will have far-reaching implications in every country that practices Parliamentary democracy.
So how can it be that where there was no existing law (until today’s precedent-setting decision by the UK Supreme Court) that a British Prime Minister could have broken a law that didn’t (yet) exist?
It seems counter-intuitive to say the least.
And aren’t Supreme Court judges in parliamentary democracies placed in their highly-esteemed court to adjudicate existing laws only?
How can one be guilty of breaking a law, when there existed no law forbidding that action or practice beforehand?
OK, so the UK Supreme Court Judges Have Created a (New) Law: Can They Do That?
Apparently they can.
Yet, passing legislation (laws) is the primary remit of the House of Commons (definitely not the primary remit of the UK Supreme Court) and the government is charged with the task of drafting laws for the United Kingdom, to debate them in the House of Commons, and to forward formalized legislation to the House of Lords for their consideration.
Then, the House of Lords returns the approved legislation (sometimes with minor changes as determined by the Lords) to the Prime Minister so they can seek Royal Assent for the legislation, which is the final step before that legislation becomes law.
The reason legislation needs to be approved and signed by the Sovereign (a.k.a. ‘the Queen’) is that the Sovereign holds the post of the Head of State for the United Kingdom, its territories and possessions worldwide, etc., and ultimately, the Head of State more than any other person or level of government is personally responsible for the actions of his or her government, its military, and its citizens. (A rather important point that people easily forget!)
Only a Head of State can be held personally liable for the actions of his or her country; A Head of Government cannot; A Supreme Court Justice cannot.
What’s This Prime Minister To Do Now?
As the responsible person on behalf of the country the Queen must notify the Speaker of the House to order Parliament to resume sitting at their earliest convenience, which is tomorrow morning.
There can be no defying the UK Supreme Court (ever!) — and whether the UK Head of State, the UK Head of Government, or individual British MP’s or Lord’s agree or disagree with the Supreme Court is entirely irrelevant. The UK is a country of laws, and for now, the law says that proroguing the UK Parliament (at least in the manner it was done, and in the absence of any specific laws on the matter) was illegal.
And sadly, the endless and heretofore pointless debates on Brexit and General Elections must continue ad nauseam.
The so-called will of Parliament seems to be that the more debate and less decision-making the better. And another Brexit extension will simply ‘enable’ them to further duck their responsibilities, election promises, and party manifestos.
Yes, it’s a dysfunctional Parliament, I get that.
What is Advisable for PM Boris Johnson, Henceforth?
As the primary purpose of the Prime Minister and the government is to draft legislation (laws) for the country, I suggest he do exactly that — beginning with a new set of laws for proroguing Parliament (which might sound a little cheeky coming on the heels of the UK Supreme Court decision) but we got to this point by NOT having clearly written laws on the matter.
I humbly suggest that the government draft a new law to instruct how the Prime Minister, his Privy Council, and the Head of State must proceed when they next intend to prorogue Parliament.
- For prorogations of any amount of days fewer than 15-days, the UK Prime Minister should have the discretionary power to prorogue Parliament at any time, for any reason. He or she shouldn’t be required to provide any reason in cases where prorogation lasts less than 15-days. It’s important to note that future PM’s would be obligated to adhere to this legislation should it pass through the House of Commons, through the House of Lords, and receive Royal Assent from the UK Head of State. (This course of action is well within the government’s remit, and would merely set in place the clear laws on prorogation that should’ve always been on the books)
- For prorogations of longer than 15-days, the UK Prime Minister should present sound reasoning for his request to prorogue Parliament to the Privy Council, the Head of State, and the UK Supreme Court. Under no circumstances short of nuclear war hitting the UK or an asteroid wiping out half the Earth, should a UK Prime Minister be able to prorogue Parliament for longer than 15-days WITHOUT Privy Council approval, Head of State approval, and UK Supreme Court approval.
This way, a future Prime Minister won’t ever again find himself in the embarrassing position of having broken a law that didn’t exist. Which is exactly what’s occurred in this case.
So now, every enemy of the UK, every ‘frenemy’ of the UK, every Briton who wishes ill-will for the UK, and every mocker of Parliamentary democracy in the world will be certain to make good use of today’s ruling to embarrass the UK government.
In the largest possible context, the present situation has been enabled because the UK House of Commons and every successive government since the first British Parliament in the year 1215 — whether Whig, Tory, Labour or Conservative, failed to create the necessary legislation to enable the government to function properly as it relates to the prorogation of Parliament.
Which is why it needs to be corrected as soon as possible — notwithstanding Brexit, no Brexit, or delayed Brexit.