Friday, 1 July 2022 – 15:04

Prorogation: What has been happening inside the Supreme Court?

It has been announced that the ruling over Boris Johnson’s decision to prorogue Parliament for 5 weeks will be revealed tomorrow.

An appeal over Johnson’s decision to prorogue Parliament was put forward to the Supreme Court by Gina Miller at the end of August after there was an uproar from the general public that his decision was unlawful and undemocratic. Although agreed to by the Queen, there has been consistent analysis for the reasons behind Boris Johnson’s decision, including giving the government more opportunity to push through a No-Deal Brexit by October 31st.

However, with Parliament set to return on October 14th, what has been happening inside the Supreme Court and what could the final ruling be?

What has happened to date?

End of August: Gina Miller, who historically also won a case against the government back in 2017, brings the case forward to the High Court for judicial review on Boris Johnson’s decision to prorogue Parliament. She is backed by former Prime Minister Sir John Major, Baroness Chakrabarti, and the Welsh and Scottish Governments.

6th September: High Court rejects the accusations on the grounds that prorogation is not illegal, even if there was the motivation of “political advantage” behind the decision.

11th September: Scottish High Court judge rules prorogation of Parliament illegal as it prevents MPs from holding the government to account ahead of Brexit. The hearing which began on 3rd September heard that Boris Johnson had agreed to the shutdown Parliament two weeks before it was publicly announced. Lord Doherty’s panel which listened to evidence from both sides, rejected a bid to have the shutdown declared illegal, however Lord Carloway, who led the deciding panel, ruled Johnson’s shutdown as unlawful. The Scottish ruling was deemed highly significant to the case against Boris Johnson as it was unusual for a court to intervene in a government ruling. The government then appealed the ruling the following week at the Supreme Court in London.

17th September: Supreme Court appeal begins after Gina Miller appeals High Court ruling. The case is ongoing with the outcome riding on the decisions of 11 judges and set to be announced tomorrow morning. During the first day Lord Pannick QC, Mrs Miller’s barrister, argued that Johnson’s decision to prorogue Parliament was a move to “silence” Parliament and that the decision was “an unlawful abuse of power”.

18th September: Mr Johnson’s barrister, Sir James Eadie QC, argues that the Supreme Court had no jurisdiction to rule on the lawfulness of the length of prorogation, tying into the High Courts ruling that the decision was lawful.

Will the court appeal affect Brexit?

The president of the Supreme Court, Lady Hale, said that the case was “solely concerned” with the lawfulness of Boris Johnson’s decision and that the case was not about Brexit.

If Boris Johnson loses the case and prorogation is deemed unlawful in this instance, Johnson will likely be forced to recall Parliament before the end of prorogation on October 14th. This would give MPs opposing a no-deal Brexit and departure from the European Union by 31st October a chance to challenge the government further on extending the negotiation period. Before Parliament was prorogued, the House of Commons won a vote to declare an emergency debate on passing a bill similar to the Copper-Letwin bill, which was passed in April of this year.

There is also the likelihood that Boris Johnson’s government could lose some popularity from the public if the suspension is ruled illegal. Before prorogation, the Government lost their majority after Dr Philip Lee crossed the floor and joined the Liberal Democrats and then over 20 Conservative MPs had the party whip removed. As a result, there is a higher risk of Johnson’s government losing a vote of no-confidence made by opposition MPs, who may propose such a move in response to the Supreme Court ruling if he loses. If Boris Johnson loses that then a General Election must be called if an alternative government cannot be formed, which could risk an opposition willing to revoke or extend the negotiations further gaining power. However, according to Britain Elects, the Conservatives are still ahead in the polls at 33% inferring that they would be able to win an election if one was called in the near future.

What is the likelihood that Boris Johnson loses?

It is hard to predict what decision will be made by the 11 judges involved, especially as during judicial review the judiciary must remain impartial and make a ruling based off the evidence heard. However, the panel is headed by Lady Hale, who was involved with the panel who called for the ruling that Article 50 could not be triggered without Parliament’s approval. Once again, it is difficult to tell due to the expectation for judges to remain impartial whether Lady Hale holds a similar stance in this case and may order the plug to be pulled on prorogation.

Furthermore, there are many people appealing against the decision aside from Gina Miller, Baroness Chakrabarti and Sir John Major. Former barrister and current SNP MP Joanna Cherry and a group of over 70 MPs are also appealing the High Court’s decision. Ms Cherry and the group of MPs originally led the case in the Scottish Court, which of course ruled prorogation as unlawful. As the Supreme Court ruling is an appeal against the High Court ruling, Ms Cherry and her team may well be able to use this in their favour.  However, statements given by the lawyers supporting their fellow campaigners, such as Sir John Major, still leave the expected result to be questioned. Lord Garnier QC stated to the court that documents submitted to the court did not provide “the true reason” for the suspension, which could work both in favour and against Mr Johnson. However, Lord Garnier further argued that the conclusion for this was “inescapable” and that Mr Johnson was “motivated by his political interest”.

Aidan O’Neill QC who is representing the Scottish Parliamentarians has only been reported to have used decorated language stating “the mother of parliaments closed down by the father of lies” and referred to “dirty lies”. He also said that the judges should not treat government documents as “gospel”. However, government lawyers argued that his language was “discourteous and incendiary”. Without the evidence behind Mr O’Neill’s comments, it is hard to see if his words will sway the panel. In addition to this, the government representation has argued that it was “forbidden territory” for judges to intervene on political arguments and on government conduct. However, judicial review is standard practice and is used within our own institutions to ensure that decisions made by parliament are fair and constitutional. Although the UK lacks a written constitution.

Although not discussed in some news reports regarding the court appeal, there was a discussion that Parliament only lost 4 days, as the prorogation runs during conference recess when the house doesn’t sit as MPs attend party conferences. However, it has been reported that some have argued using this argument is ‘disingenuous’ as the Commons may have voted to sit during conference recess and that it glosses over how the length of time Parliament is prorogued for as close to unprecedented.

Overall, if Johnson and his government do lose, they have publicly said that they will accept the result. Speaking on the Andrew Marr show, Dominic Raab said the government “will abide by the Supreme Court ruling” and stated that the government was ‘confident’ in its position. He refused to say whether there would be a second prorogation saying that they were “keen not to take levers off the table that weaken the position of the UK in Brussels”. If the move is deemed unlawful, based on the court’s decision, the government could potentially be allowed to prorogue parliament for the same time period in a different, lawful way.

The Supreme Court is set to deliver their decision on the appeal tomorrow morning at 10.30am BST.


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