The Supreme Court’s Judgment on Prorogation

My prediction that the Supreme Court would decide that Government’s prorogation of Parliament was entirely wrong. I do not understand the reasoning of the decision.

In this case several features stand out.

  1. The eleven justices all made a single judgment; there was no dissenting opinion, which is odd considering that equally senior judges including the Lord Chief Justice, the President of the Queen’s Bench Division and the Master of the Rolls already made a decision which was precisely the opposite of that of the Supreme Court decided. It may be that the Supreme Court judges decided that because of the constitutional importance they had better put dissent to one side an publish a single decision even though some of them may have disagreed with it.
  2. The judges stressed that the case was not about Brexit. They were wrong. The case was entirely about Brexit. Those opposing the prorogation did so not because they were genuinely opposed to a five week prorogation during the party conference season, but because they wanted to hinder the government’s efforts to improve the deal negotiated by Mrs May and/or to prevent Brexit at all. Their best means of hindrance was to keep the Parliament open so that the sound bites of those opposing Brexit would continue to criticise the government and that criticism would receive all due publicity. It was not about Parliamentary scrutiny – the intended prorogation had left sufficient time for that – it was about preventing Brexit and/or embarrassing the government who cannot now govern at all because of the way in which the House of Commons will continue to prevent the government from doing virtually anything.
  3. The judgment recognises the principle that parliament is sovereign over the government but reduces the government’s powers to prorogue which most constitutional lawyers believed that the government had to prorogue Parliament for short periods in times of crisis.
  4. The judgment fails to recognise that the people are sovereign over Parliament.
  5. The judgment did not fairly reflect that this was a new area of law upon which there had been little precedent and therefor different opinions about the law were not only possible but to be expected. The words of Lady Hale gave the impression that the government had knowingly acted unlawfully. This was unfair, especially as she had described the case as “a one off”.
  6. The heart of the decision of the supreme Court is, in my opinion, contained in these words Prorogation “will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. 51. That standard is one that can be applied in practice.
  7. The court, having set the standard (for the first time) measured what it knew about the government’s decision and measure it against that standard. It found the government wanting. This inevitably means that any future government of any hue will find the exercise of any prerogative power being examined in court at the behest of their political opponents. It is not a consummation that we would find helpful, democratically or politically especially when the meaning of “without reasonable justification” is ligated time and time again, as it will be in future.

Parliament re-opened today in accordance with the ruling of the Supreme Court. As far as I can see no time was spent on scrutinising legislation but on hurling insults and criticism across the chamber. I expect this to continue for weeks to come.

2 Responses

  1. Without reasoning, Robin Tilbrook’s Judicial Review application in the Court of Appeal was dismissed by Lord Justice Hickinbottam as “Totally Without Merit”. In my view this was Summary Injustice.

    However, his dismissal demonstrated at least one sinister aspect of ‘group think’ now also demonstrated by the 11 Supreme Court judges.

    The judiciary has become a Europhile ‘fifth column’. Willing to advance ideology in preference to justice or the Rule of Law. That Europhile ideology is one of subjugation and empire building, not freedom or democracy,

    I, for one, am ashamed of my profession.

  2. […] via robertkariakides.wordpress.com The eleven justices all made a single judgment; there was no dissenting opinion, which is odd considering that equally senior judges including the Lord Chief Justice, the President of the Queen’s Bench Division and the Master of the Rolls already made a decision which was precisely the opposite of that of the Supreme Court decided. […]

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