BREXIT – Checks and balances

Since my last Brexit column, we have now had the judgment of the Supreme Court on the prorogation of parliament. The judgment is worth a read and deserves more column inches than I can offer here. The Prime Minister promptly let it be known that he profoundly disagreed with it. The leader of the house of commons and erstwhile Brexit ultra Jacob Rees-Mogg called it a constitutional coup (as if that wasn’t the pot calling the kettle black). But former Supreme Court judge Jonathan Sumption summed the whole thing up quite aptly when he said on the BBC that “one has to accept that if you behave outrageously and defy the political culture upon which our constitution depends, a lot of judges are going to be tempted to push the limits. And the trouble is, Boris Johnson has taken a hammer and sickle to our political culture in a way that is profoundly provocative to people who believe that there ought to be solutions consistent with our traditions.”

Lady Hale, President of the Supreme Court, certainly did not mince words, when she concluded that the effect of the suspension of parliament on the fundamentals of our democracy was extreme because it stopped MPs exercising their constitutional role of holding the government to account. The charge by some in government and in the pro-Brexit press that the judgment politicised the judiciary can be countered by the facts, first, that the decision was carried by a unanimous 11:0 vote of the judges; and, secondly, that politically extreme and legally dubious measures by the government require correspondingly clear judicial action to redress the constitutional balance.

But beyond the political sound bites and news headlines, what did the Supreme Court actually have to decide? First, the court had to decide whether the Prime Minister’s advice to HM The Queen to prorogue parliament was justiciable at all. The court agreed with the government that prorogation was a prerogative power but noted that this power was not unlimited and was therefore capable of being subject to judicial scrutiny.

In the next step, the court therefore had to define the limits of the government’s prerogative powers. The court concluded that it was concerned with the effect rather than the motive behind the advice to prorogue. If the effect of the prorogation was that the ability of parliament to carry out its constitutional functions was frustrated, then it would be unlawful. Here, there was such an effect, and no reasonable justification was given for the extended five-week prorogation. It was therefore unlawful.

Having declared the advice to prorogue unlawful, the court finally had to decide what effect this had and what remedies should be granted. The court ruled that the advice should be quashed and was therefore void and of no effect, meaning that parliament had not been prorogued at all.

Clearly, this decision is exceptional and it is no exaggeration to say that it will make legal history. It comes at a time of great political and constitutional upheaval. If nothing else, it is good to know that the constitutional system is able to defend the rights of its institutions and to balance excesses of power at a time when it is tested to stretching point. At the time of writing, parliament has just come back from a much shorter suspension, and the Queen’s speech has been delivered. The Prime Minister has hopefully learned a lesson and if the judgment managed to temper quite how far he will push the constitutional boundaries next time, then that, too, can only be a good thing.

Gregor Kleinknecht LLM MCIArb, ist deutscher Rechtsanwalt und English solicitor, und Partner bei Hunters, einer führenden Rechtsanwaltskanzlei in London.

Dieser Beitrag wurde zuerst in Discover Germany, Ausgabe 80, November 2019, veröffentlicht.

E-mail: gregor.kleinknecht@hunterslaw.com
Web: www.hunterslaw.com

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