Tuesday 24 September 2019

Long prorogations are perfectly legal

The Queen can do no wrong. This is the most fundamental principle of English law and has suddenly been overturned. 

The Supreme Court ruled that the Queen was wrongly advised (without convincing reasoning or proof). Even so, how can her personal act be illegal?

We know Her Majesty follows the advice of her ministers, but she does not have to by law and it is law on which the Supreme Court rules. 

She is legally free not to follow ministers' advice and the judges cannot ask their Sovereign why she acted as she did. So how does her receiving bad advice void her decision to prorogue?

Between 1900 and 1930 the average length of prorogations in the UK was 72 days, whereas Boris attempted to prorogue Parliament for half that time. 

So how can it have been illegal - or even exceptionally long? 

Ninety years, in the eye of the law, is but a winter's day.

Parliament was prorogued for fifteen months from November 1675 till February 1676, which gave rise to discussions about whether a prorogation for more than a year was a prorogation or a dissolution. No-one, however, suggested that King Charles II had no power to prorogue for that much time. 

Since then, of course, the English Revolution took place in 1689, but the Revolution and the Bill of Rights, which codifies the legal effect of the Revolution, do not affect the prerogative power to prorogue.

It is extraordinary that Lady Hale, in her summary of the court's reasons for its decision, did not mention any Act of Parliament or precedents but, in a blasé way, simply called in aid the principle of 'parliamentary supremacy'. 

It all sound very like a European Court, applying vague Cartesian principles, purportedly found in a written constitution but possibly invented. 

Their lordships were flying by the seats of their pants - and dresses.

A thought. Had this judgment been given in the 1930s Neville Chamberlain's decision to declare war on Germany would have triggered an application to the courts. For good or ill. 

Would the Supreme Court, had it existed, have thought such an application justiciable? This court probably would.

An injunction to prevent the Second World War would not necessarily have been a bad thing and would have saved millions of lives - you can argue it either way - but it would have been a remarkable invasion of what has always been considered a Crown prerogative.


  1. No example of the court controlling prorogation of parliament can be found in this country – or in any common law country. Until today.

    The 11 justices have taken it upon themselves to assume the power of Parliament and by common law, make a statute. That is a far bigger constitutional outrage than Boris sending parliament on holiday over conference season. It is and should be a nationwide klaxon that the experiment of a ‘Supreme’ Court is a failure. They seem conversely oblivious that the actual conclusion to their actions is to carry on the farce of the longest sitting parliament for 400 years and to give all power in the land to the Speaker and rogue MPs – who are unconstrained by manifesto promises, a Queen’s Speech or by fear of an election (because they refuse one). No mention was made of how parliament has ceased to function.

    Brexit has exposed huge cracks in our constitution which urgently need fixing. At the very least, we should copy the Australians and constrain judicial review by statute – make it a tool to help ordinary people again. Then we need to decide, openly and publicly, whether we want our old constitution back (the one that worked), or whether, even if we like this new one of all powerful judges and speakers – whether it would be better to do it by statute rather than by common law. That way we might all know the constitution of our land in advance and not have to wait for 11 judges to invent it.

    Charles Day

  2. I thought you said that after 2016 none of the old rules applied. Looks as though this one just got broken too.

    1. I do not know the context of my remark but I was not saying old laws no longer applied.

    2. My guess is you are an American who dislikes Brexit because she sees it as the British version of Trump. This is not really true though the two things are linked, for example by Nigel Farage and Steve Bannon. Read this. https://www.telegraph.co.uk/politics/2019/06/08/thought-british-remainers-bad-try-explaining-brexit-liberal/

  3. I see no point in denouncing today’s judgment of the Supreme Court, which has ruled the prorogation of Parliament “unlawful.” Granted, this is not a court of law, so much as a committee of political activists. Granted, its judgment goes against centuries of convention and judicial precedent that matters of high politics are not allowable subjects of litigation. But we are where we are. All that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine.

    Dr. Sean Gabb
    On 24 September 2019 19:37

    1. Good for Sean. I once had a drink with him. He shares my love of Lord Macaulay, the British empire, freedom and other things.

  4. An interesting question - would it be possible to get rid of the Supreme Court? If Parliament passed an Act abolishing it the Supreme Court would simply rule the Act to be unconstitutional. If a referendum were to be held and the people voted to abolish it the Supreme Court would simply rule the referendum to be unconstitutional. If the Queen tried to abolish it the Supreme Court would simply rule the Queen's action to be unconstitutional.

    It looks like, barring an actual revolution, you're stuck with the Supreme Court forever.

    I think Britain is now officially a dictatorship. And an increasingly totalitarian one. China today is arguably a freer country than Britain. Russia is certainly a freer country.

  5. Hee hee. Of course it could be abolished with a one clause Act of Parliament and should be. Let law lords be housed in dingy corridor as they were before Tony Blair.