GS-2, Indian Polity, Uncategorized

Supreme Court of UK: Suspending Parliament was unlawful

Background

  • The prime minister asked Queen Elizabeth II to approve the suspension of Parliament from September 10 to October 14 on the basis of needing time to prepare a new legislative agenda.
  • This could allow a “no deal” Brexit to be forced through
  • The move to “prorogue” parliament will effectively lock lawmakers out of the building for several days in early September, possibly preventing them from making laws that would force Britain’s exit from the European Union to be delayed or even canceled if a deal cannot be agreed.
  • Britain is scheduled to leave the E.U. on Oct. 31, but currently has not accepted a withdrawal agreement which would lessen the shock of its departure.
  • Johnson has pledged to leave with or without such a deal
    • Johnson’s opponents have accused him of proroguing parliament in order to make a “no deal” Brexit more likely.

What is prorogation?

  • The prorogation of parliament is when the Queen ends one parliamentary session so that another can begin.
  • Prorogation can only happen when the Queen says so and it is only after the Prime Minister has requested it. Lawmakers do not have a say in preventing prorogation.
  • In practice, it means sitting lawmakers will not meet for several weeks, meaning they cannot pass laws.

What might ‘no deal’ mean for everyday Brits?

  • Britain’s economy is closely tied to the E.U.’s. The bloc is Britain’s biggest trading partner, accounting for 44% of all U.K. exports.
  • As a member state, Britain can trade with other members unburdened by customs checks or tariffs.
    • Common regulations mean goods do not have to be examined when they cross borders. But when Britain leaves, those things will change.
  • Without a deal, U.K. trucks arriving from the E.U. will face customs checks the day after Oct. 31.
    • It might mean exports from the U.K. are subject to stricter examinations at ports, to check they comply with strict E.U. regulations.
    • The increased costs to companies will almost certainly mean lines at ports, shortages in shops and raised prices across the board.
    • Without common regulations, Europeans will have no guarantee that British products have been manufactured to the E.U.’s strict standards.
    • And with Britain no longer enjoying free trade with the E.U., goods flowing in each direction will have to be tracked.
    • The result of that could be food rotting in the backs of trucks and reduced choice – and increased prices – for British consumers.

What was Johnson’s Plan?

  • In the 2016 Brexit referendum, and in the most recent U.K. election in 2017, no party campaigned to leave the E.U. without a deal.
  • But Johnson was advocating leaving on Oct. 31 “do or die,” or in other words, with or without a deal.

Why did the Supreme Court get involved?

  • Johnson has been accused of an unlawful “abuse of power.” Judges have been asked to determine whether he misled the queen.
  • The politically neutral head of state is required to act upon the advice of the prime minister.

Earlier two British High Courts had come to opposite conclusions.

  • First, the High Court in London ruled that the Prime Minister’s advice to prorogue is a political issue and, therefore, not justiciable. The courts cannot look into it.
  • Second, the Scottish High Court — more correctly known as the Inner House of the Court of Session — took the opposite view.
    • It ruled the Prime Minister’s advice can be reviewed, not on ordinary judicial grounds of review but on fundamental constitutional principles.
    • Parliament’s role scrutinising government, which it called a central pillar of the British Constitution, is one such principle.
    • Therefore, any advice motivated by an intention to stymie Parliament is unlawful.

Questions before the Supreme Court of UK

The issue was essentially whether Johnson had the right to prorogue Parliament, and whether Britain’s courts had the power to stop him.

  • The Government argued that the courts had no business jumping in because the decision to prorogue Parliament lay “in the territory of political judgment, not legal standards”.
  • But the court said it was “firmly of the opinion” that the question of the “lawfulness of the Prime Minister’s advice to Her Majesty is justiciable”.
    • Courts “have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries”
    • The Justices reasoned: “Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, (which) …includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles… It is (the courts’) particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”

What did the SC say?

  • A unanimous decision of all 11 judges of the British Supreme Court — the largest constitutional bench possible — has declared Boris Johnson’s decision to prorogue the British Parliament “unlawful, void and of no effect”.
  • The order to prorogue, which was based on Mr. Johnson’s advice to the Queen, has been “quashed”.

How did the SC come to this conclusion?

  • First and foremost, is the advice to prorogue justiciable? The court concluded it is.
  • Second, they addressed whether the prerogative of a prime minister can be inquired into and, again, concluded that it can be challenged on the grounds of its limits.
  • This led to a third question: can the Executive use its prerogative to stop Parliament making laws by exercising that prerogative to determine how long Parliament can function?

It was the answer to this third question that led to the unanimous decision of all 11 judges to declare the prorogation unlawful.

  • The judges decided that the power to prorogue is limited by its effect on the rest of the Constitution.
  • In this case, it “prevented parliament from carrying out its constitutional role”.
  • Distinguishing between prorogation and a recess, the Supreme Court said that the former meant Parliament cannot “meet debate or question ministers”. Its conclusion was blunt: “the effect on the fundamentals of our democracy was extreme”.

The case touched on the powers of all the key institutions of Britain’s unwritten constitution.

  • To start with, it defined the powers of Parliament versus those of the judiciary.
  • It determined at what point the jurisdiction of the legislature ends and that of the executive starts.
  • It touched upon the constitutional role of the Queen.
  • The Supreme Court has underlined that the government and prime minister are the “junior” partners in the British constitution – that Parliament is the “senior” partner – and the junior cannot tell the senior, which acts for the people, what to do.
  • The Supreme Court is underlining that if there is an exceptional use of executive powers by the prime minister that infringes on parliamentary democracy, judges have the power to intervene.

Conclusion

  • The Supreme Court was set up to resolve the most complicated legal and constitutional questions of the day – and in this judgement it has shown it is not afraid to tread into matters that judges in previous eras would have feared to have been too political.
  • And this is why this judgement is so important for the future of the British constitution.

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