Saturday, 28 September 2019

Professor John Finnis on the unconstitutionality of the Supreme Court’s prorogation judgment

John Finnis, QC, the Australian Catholic legal philosopher and barrister, who is Emeritus Professor of Law and Legal Philosophy at Oxford and counts Supreme Court justices from Australia to the US among his former pupils, argues in Policy Exchange that UK Supreme Court has wrongly seized supreme power.

I read law at university and I felt the same as I heard Lady Hale's judgment, which seemed to being flying by the seat of her pants (or rather dress). The Crown in Parliament is supreme and has always had entire discretion about when and why to call, prorogue or dissolve Parliament.

Which is why Ramsay MacDonald, to take a recentish example, could prorogue Parliament for three months.

Professor Finnis is a formidable authority but is not impartial about Brexit. He argued in the Telegraph on April 1 that, because of 'a rogue Parliament and rogue Speaker', the only solution to Brexit was to prorogue Parliament and leave the EU without a deal on 12 April. 

I have no doubt that the Supreme Court justices have their strong views on Brexit too and would make a wild guess that they all voted Remain. Their generation of judges is so very different from judges like Lord Denning who was leading a rebellion against what
became the SIngle European Act exactly when I started my first job in the House of Lords. 

Though Denning was sui generis and a great inventor of law himself. He might have been as creative as the Supreme Court on Tuesday but his sympathies were not with the EEC or European law submerging  English Common Law.

It was to be Margaret Thatcher's biggest legacy and most disastrous, though back in 1985 I thought the Single Market, which the Act was passed to facilitate, a good thing which justified accepting majority voting within limits.

A petition was launched in January to remove Professor Finnis from teaching at Oxford because of “a long record of extremely discriminatory views against many groups of disadvantaged people”. 

These included remarks in his Collected Essays that homosexual conduct is “never a valid, humanly acceptable choice and form of life” and is “destructive of human character and relationships” because “it treats human sexual capacities in a way which is deeply hostile to the self-understanding of those members who are willing to commit themselves to real marriage”. 

The petition garnered almost 600 signatures. I wonder if some who signed were lawyers or even future judges.


  1. September 24th; Tuesday. Retired PM Blair's post-1999 euro-style Supreme Court justices in Somerset House ruled today at 10.30am. They found unanimously, all eleven of them, that PM Johnson acted illegally by proroguing Parliament for five days (they cited it as five weeks, conflating recess and prorogation). The fact that retired PM John Major prorogued for a longer period with far less justification in 1997 made it quite strange that he stuck his neck out in recent months so publicly as to even address the court in this case, demanding this prorogation be declared wrong. Until now - it can only be that Mr Major knew in advance, or was instructed in advance, how this script must be performed. That's why he was so unworried.

    September 25th; Wednesday. One gorgeous logical error from yesterday's Supreme Court ruling in all its majesty: 61. It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful. It doesn't follow, of course, but fascinating to see how many people think it does.

  2. I am a good enough lawyer to know the Supreme Court was, as they say in the East End of London, well out of order.

  3. Letter to the Times, 26 September:

    Sir, For more than 300 years legally unconstrained prorogation has not threatened parliamentary sovereignty (or even violated conventions). All those years, a simple act of parliament could have eliminated the “threat” by limiting times and occasions of prorogation. Boris Johnson’s prorogation, too, far from being the “constitutional vandalism” that Lord Sumption calls it, left room for parliament to pass just such an act, or one blocking this prorogation itself, or to replace the government.

    The Supreme Court judges also failed to respond to the government counsel’s point that in 2014, Lady Hale, for a unanimous Supreme Court, rightly stated that giving royal assent to bills is a “proceeding in parliament” that the Bill of Rights 1689 forbids any court from questioning or impeaching. The procedures of prorogation are even more obviously “in parliament”.

    As well-intentioned but constitutionally unauthorised law-making, this judgment undermines the rule of law and the constitutional settlement.
    John Finnis, QC
    Professor emeritus of law, Oxford