UK supreme court ruling: the key issues behind judges’ decision

 A protester dressed as Boris Johnson outside the supreme court in central London. Photograph: Hollie Adams/Getty Images

What were the issues at stake?

The nub of this case was whether Boris Johnson had the right under the UK’s unwritten constitution to suspend parliament, and whether the courts had the authority to intervene. Aidan O’Neill QC, the advocate who led on the anti-prorogation case in Scotland, insisted the courts had a duty to ensure the prime minister was not abusing his powers.

The UK has a tripartite system, where parliament, the government and the courts each have a defined role in balancing out the others’ decisions. O’Neill successfully persuaded three senior Scottish judges 13 days ago that Johnson was abusing the government’s powers to suspend parliament to prevent it from carrying out its constitutional duties to scrutinise and approve the government’s decisions on Brexit.

Yet judges in London and Belfast had ruled in two very similar cases that Johnson did have the power to do so: they supported the government’s views that prorogation was a political decision and that courts had no right to interfere.

How did it end up in the supreme court?

The competing English and Scottish court decisions were immediately sent to the UK supreme court on appeal; the judges rushed back from holiday to fast-track the hearing, allocating 11 judges – the largest number they can convene, to hear the case. (There are 12 judges on the court, but it must have an odd number sitting on the bench to prevent deadlock.)

What exactly did the court have to decide?

The court had to decide firstly whether Johnson’s decision – exploiting residual, royal prerogative powers – was “justiciable”, meaning it could be subjected to the court’s scrutiny under the constitution.

It then had to rule on whether the Scottish or English courts were right: was prorogation unconstitutional, or did Johnson have the right to organise parliamentary time as prime minister?

The final question the court addressed was what remedy it should grant if the prorogation was deemed unlawful

What conclusions did it reach?

They then ruled that the decision to prorogue parliament was unlawful because it had “the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.” She added: “No justification for taking action with such an extreme effect has been put before the court.”

In the most striking part of its ruling, the court said the speakers in both the Commons and Lords can reconvene both houses immediately. The judges upheld the court of session’s ruling that prorogation was void. They also stated that the privy council’s decision to ask the Queen to suspend parliament was also “unlawful, void and of no effect and should be quashed”. In effect, Hale said “parliament has not been prorogued”.

What next?

Immediately after the court said the next steps would be up to the speakers of the two houses, John Bercow, the Commons Speaker, said the Commons had to “convene without delay” and that he would urgently consult all party leaders about doing so. That could mean the Conservative conference, due to start this weekend, would need to be cut short.

At the Labour conference, Jeremy Corbyn said parliament should immediately be recalled. The prime minister, meanwhile, must decide whether to return from the UN general assembly in New York.

If he does return, Johnson could simply allow parliament to sit; seek to prorogue again, arguing that a shorter, “normal” prorogation ahead of a Queen’s speech is not ruled out by the court’s judgment but risking accusations that he could precipitate a constitutional crisis; or, as Corbyn and others call for his resignation, he could try to force an election.

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