Early last week we had a Supreme Court ruling, which was the epitome of the highest critical thinking you could find, written in beautiful lucid prose, and delivered calmly by a quiet yet authoritative voice, which now seems almost forgotten after the truly repellent response from our executive the following day. Let’s look closer at the ruling and the executive’s reaction to it.
Our Supreme Court
I wasn’t aware (I learn as I write) that the Supreme Court is a fairly new institution. In 2009 it replaced what were commonly known as the Law Lords (who sat in the House of Lords) and is the final court of appeal for civil and criminal cases and it also, as in this instance, hears cases of constitutional matters. There are 12 judges appointed to this court and amongst those 12 Lady Hale and Lord Reed act as President and Deputy President. An aside here for those of you in other countries with very different judicial systems; the appointments to this court come from within the profession – judges rise up their own hierarchy and there are no political appointees. While this gives rise to criticism that the judiciary is formed from the elite, do note that Lady Hale went to a state school. Having said that all of the 12 went on to study at either Cambridge or Oxford.
The case to be considered by the Supreme Court was on two combined applications consisting of: i) Miller (appellant) v The Prime Minister (Respondent), which sought a judgement on the lawfulness of the advice given to the Queen to prorogue and ii) Cherry and others (Respondents) v the Advocate General for Scotland (Appellant). Miller is Gina Miller a private citizen who has the nous and contacts to not once but twice take our government to court – what an amazing judicial system we have to allow such a thing. While Cherry is Joanna Cherry who is both a Scottish National Party MP and a QC (Queens Counsel). She was amongst 78 MPs who had made an application to the Scottish courts on the unlawful nature of Parliament’s prorogation, which, unlike the English courts, was upheld by said Scottish courts.
The resulting judgement is contained in 24-page document, which I have read several times. Actually, I urge you to read it or, if the 24 pages is too much, at least read the 3-page summary. Why? Because it is a hugely important document, which has enormous significance for our constitution, and, democracy itself. But not only that, it sets out their arguments, thinking and their judgement in the plainest of terms in beautifully written prose. That’s not saying that it is a simple document as there is some dense reasoning within it. But it is, truly, a pleasure to read.
The judgement – the first few pages
I learnt a new word.
But before I get to the word this is what was under consideration: the judgement was not looking at when or on what terms the UK is to leave the EU, no, the issue was whether the advice given by the Prime Minister to the Queen that Parliament be prorogued was lawful – just that. At the beginning of the judgement there’s a really useful summary of events leading up to prorogation and a very clear picture that senior members of Parliament, who are also members of the Privy Council, made a special trip up to Balmoral and advised the Queen to prorogue, albeit how and what was said exactly, no-one knows. What the Supreme Court judgement is able to tell us though, is that the advice on prorogation (on how it would affect the House of Commons and given to the Prime Minister and 7 other people) before the trip to Balmoral, was scrappy and the PMs handwritten responses were scant and a tad disjointed. I don’t think anyone thought, Johnson included, that what they wrote, or scrawled in response, would be scrutinised by the world.
The judgement sets out four issues that the Court had to consider:
- Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
- If it is, by what standard is its lawfulness to be judged?
- By that standard, was it lawful?
- If it was, what remedy should the court grant?
And there is that new word – justiciable.
I’m not going to give you a blow-by-blow precis of the judgement (because I so want you to read it yourself) but I do want it noted that a large part of the document is taken up with their reasoning and conclusion, that yes, they can consider the question of the Prime Minister’s advice in a court of law, it is justiciable. Step by step you are taken through their analysis and interpretation of our constitutional practices. As you all know, the United Kingdom, does not have a single document entitled The Constitution, instead there are laws, statutes, conventions and principles. With examples stretching as far back as the year 1362 we learn that Parliament must have sovereignty over the executive, and that, and I quote:
“The sovereignty of Parliament would however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.”
Then the reason for the prorogation is probed. Why the length of time? Why prevent Parliament carrying out its role for five out of a possible eight weeks between September and 31stOctober, when the most fundamental change to our Constitution is to take place on 31stOctober 2019? The reason that it is for the preparation of a Queen’s Speech is dismissed.
And so, the judgement concludes that the Prime Minister’s action in proroguing Parliament did in fact prevent the constitutional role of Parliament in holding the Government to account. And, following from that, the advice given by the Prime Minister to the Queen was unlawful. Therefore, the prorogation was unlawful, null and of no effect.
Their final point was that it was not for them to do anything more, in other words, it was over to Parliament to decide what to do next, and as Parliament was not prorogued, or in recess, or adjourned the Speaker could allow the House to meet as soon as possible. Case dismissed.
The delivery of the verdict
I have to say if you ever want a role model for a successful older woman at the peak of her profession who also knows how to wear incredible jewellery I suggest Lady Hale. And all hail (!) the 70+ woman (74 actually). Age shouldn’t come into this piece, but really, just think about it, a more important role you could not find. Young fashion journos, people who look for a photo of an older woman and bring out the one where she’s staring out of a window, and don’t forget the gnarled hands, in future, Lady Hale is what you should bring to mind when thinking of the 70+ age group.
Anyway, did you watch her delivery? It was firm and clear and flawless. The whole judgement under her leadership is, btw, seen as outstanding as amongst other things (the clarity of the judgement, the prose) the judgement was unanimous. That is seen as remarkable, and all down to her, it is said.
The immediate reaction
For me it was like a breath of sweet fresh air and a weight of anxiety lessened. At last someone, heading up a body of people, was talking sense in a logical, refined and calm way. Immediately after the ruling pundits were rushed on to the box and also seemed to talk sense, as in, almost everyone was talking about the constitution, the law and the place of Parliament in our democracy. But one moment, no Conservative came on the air. They, apparently, were banned from speaking until No 10 had decided what their response was to be. So, we all wondered, what were they going to say? Would they apologise? Would Boris resign?
The following day
Well, well, well. How is it that we go from the sublime uplands down to the grotesque depths so rapidly? But we did.
I heard one pundit say that the ruling put Parliament at the beating heart of our democracy, which cannot be silenced ever again. Unfortunately, the next day I watched Parliament Live and all I wanted to say was, shut the f…up. This was my reaction to our Attorney General, Geoffrey Cox, he of the booming pantomimic voice, who came roaring out of the pits declaring, no, literally, shouting, that this Parliament is dead. The House was not a pretty sight with him being chastised by the Speaker for perambulating because believe me he was not only raging and bellowing he was spinning round like a dervish – just ghastly. Apologise? Never. The executive came out in full attack mode. I put my head in my hands. It was awful to watch and consequently, I did not see any of Boris’s performance later that night where he brought down the reputation of Parliament with his views and appalling aggressive language. Although note, they’re being very careful, actually, in that the government is not criticising the Supreme Court ruling but they’ve sure got their eyes on the Benn Act (which prevents a no-deal and mandates the government to ask for an extension if a deal hasn’t been agreed). But Boris went beyond the pale in dismissing female MPs fears about violence as ‘humbug’, because, as we now know, abusive threats including death threats have hugely increased for these women since last Wednesday’s disgusting behaviour from our leader.
This is all about the coming election
I am not going to over-analyse Johnson’s behaviour as it doesn’t deserve analysis apart from saying his language and his behaviour is deliberate. It is a deliberate strategy to come out fighting, it is deliberate to call the Benn Act the Surrender Act, it is a deliberate and calculated move to say it is the People versus the Parliament, as in, apparently, we all want to leave with a no-deal and Parliament is preventing this. Um, actually that’s not the right maths as it wasn’t the whole population of the UK that voted to leave, it was 17 million out of 66 million – that is not the ‘People’. But, people are fed up, and basically, Boris is electioneering and playing a dangerous populist game. Although as an aside I’d say, never underestimate Jeremy Corbyn. Populism can bite the hand that feeds it, as you just never know with Jeremy when he campaigns, so watch that space and I shall write about this very soon. And as for Parliament – don’t judge it by Wednesday. There are many good people there who do have our best interests at heart.
But for the moment, this behaviour and language is rocket fuel for the polls (see below) as the Conservatives have a 12% lead over Labour in the latest poll from Opinium (which is trustworthy).
A friend suggested to me that she felt gaslighted as the news and the analysis never seems to emphasise that we could have left the EU months ago, but for Boris & co. voting against leaving the EU again and again. Yes, now I feel gaslighted too – there was madness and vulgarity in the House on Wednesday and yet that shower is ahead in the polls? Actually, I suggest the whole country is being gaslighted by that shallow, disreputable man who now leads our nation.
However, I leave you with this. There is a suggestion seen on Twitter (such a good source!) that instead of Jeremy Corbyn leading a unity government John Bercow might be put up as the interim leader. Oh please! John Bercow for PM! Yes, I’d love that. And that might be quite a popular move for Parliament to make!
Penny Kocher, 30 September 2019
For the Supreme Court website with both the full judgement and the summary – click here
Martin Kettle, Johnson’s plan is to turn his supreme court humiliation into rocket fuel for the polls. Guardian, 25 September 2019
Toby Helm, Tories hold 12-point lead over Labour in latest poll 28 September 2019