By Sir Ronald Sanders
As she delivered the unanimous decision of the eleven members of the Supreme Court of the United Kingdom and Northern Ireland (UK), on the unlawfulness of Prime Minister Boris Johnson, advising The Queen to prorogue Parliament, I admit to being mesmerized by the startling brooch being worn by the Court’s President, Baroness Brenda Hale.
It was rather large, very sparkly and looked like a scorpion. I learned later that it was a replica of a spider. Either way, unaccustomed to such extravagant accessories for a judge, usually garbed in sober robes and a wig, I was taken aback at what appeared to be a more casual presentation of a judgment of historic moment.
The apparent casualness of attire notwithstanding, Baroness Hale read out a decision that was as stinging as the bite of a scorpion that I wrongly assumed was represented by the glittering brooch she wore.
“The prime minister’s advice to Her Majesty,” she said, “was unlawful, void and no effect.” That advice, given to the Queen on August 28 was to prorogue, or suspend, parliament for an unprecedented five weeks from September 11. Mr. Johnson’s objective was to silent belligerent members of parliament, including within his own Conservative party, from opposing his withdrawal of the UK from the European Union (EU) on October 31, the drop-dead date for leaving with no negotiated deal on the terms of the separation.
The appeals to the Supreme Court were made by a combination of persons, including parliamentarians and private citizens – prominently, Guyanese-born, UK businesswoman, Gina Miller – who felt their interests were being suffocated by Mr Johnson’s gagging parliament at a time when negotiations between the UK and the EU had not been concluded and the UK was facing deep economic uncertainty.
What was on trial was the effort of the leader of a political party in office to impose a desired political agenda by shutting down a parliamentary system that was created to check his power.
In their joint decision, the Supreme Court judges pointed out that one of the important questions before them was whether “this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.” In their words, the judges declared that “this was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October.” On that question, the Court was clear: “The decision to advise Her Majesty to prorogue Parliament was unlawful.”
That is a remarkable and historic indictment of a British Prime Minister by the highest court in the land. Normally, in the British tradition, Mr Johnson would have made a public apology, announced his resignation and retired quietly to write a book in the hope that its explanations and descriptions of what led to this constitutional mess, would earn him additional pension money.
Not so with Mr Johnson. Forced to return to Parliament, which resumed in the wake of the Court decision as if it had never been prorogued, Mr Johnson was extraordinarily belligerent, even accusing the Court of being “wrong to pronounce on what is essentially a political question.”
Clearly, the Court did not agree with Mr Johnson or they would not have decided that the matter was “justiciable,” adding that “the courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries.”
In the context of the Caribbean, going to the Court for arbitration of a question regarding a government’s overreach of its powers has become common place. But, in the Commonwealth Caribbean, where the same system of representative democracy exists as in the UK, the Constitutions are written. In the UK, the Constitution is not; it consists of laws passed by parliament and customs associated with them. In this sense, judges in Commonwealth Caribbean countries interpret constitutional requirements based on a body of written down law; the UK Supreme Court was less constrained in this case and, together, the eleven judges gave great prominence in their thinking to parliamentary accountability, citing a senior Law Lord, Lord Bingham. “The conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy.”
The same should apply in Commonwealth Caribbean countries.
None of this has taken the matter of the UK’s exit from the EU any further than it was before Mr Johnson prorogued parliament. There is a law on the statute books, rapidly adopted by both Houses of Parliament on September 6, five days before Mr Johnson’s prorogation came into force, preventing the UK from leaving the EU without a withdrawal agreement on October 31 – now weeks away.
A further law, passed by Parliament when Johnson’s Conservative Party lost its majority, requires the government to ask for a delay in leaving the EU beyond October 31, if it fails to secure a deal by October 19. Mr Johnson, even in the face of the Supreme Court’s public slapping over his prime ministerial overreach, has adamantly stated that he will not seek an extension.
Mr Johnson failed to push the UK out of the EU by ignoring parliamentary democracy and constitutional barriers. Clearly, he will now continue to ignore parliament in his overarching ambition to tug the UK out of the EU. Not least because his Conservative party is now in danger of losing the votes of those who support leaving the EU to the extreme right-wing United Kingdom Independence Party.
Winning the next election is everything.
(The writer is Ambassador of Antigua and Barbuda to the United States and the Organization of American States. He is also a Senior Fellow at the Institute of Commonwealth Studies at the University of London and at Massey College in the University of Toronto. The views expressed are entirely his own)