Why Did the Supreme Court Ruling Against Boris Johnson Have No Impact?

By Lucy Crabtree


Montesquieu theorised that, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive”. The ‘legislative and executive’ is a reference to the separation of institutions of the State which include the legislative, executive and the judiciary. Those institutions are; Parliament, the Government, which is headed by the Prime Minister, and the Supreme Court. Parliament is a checking mechanism for the Government by “maintain[ing] full public control of government services and state operations, ensuring public and Parliamentary accountability through conditionally supporting the government, and articulating reasoned opposition, via its proceedings”. Boris Johnson interfered with this checking mechanism when he prorogued Parliament for 5 weeks in the buildup to Exit Day on October 31st, 2019.


The suspension of Parliament raised a very serious question on the constitutional authority of this maneuver. The Speaker of the House of Commons boldly asserted that it was “blindingly obvious that the purpose [of suspending Parliament] would be to stop MPs debating Brexit and performing its duty”, going as far as to call the suspension of Parliament a “constitutional outrage”. Boris Johnson on the other hand claimed that he prorogued Parliament in order to “get on with our domestic agenda” and there was “ample time on either side of...October 17th” for MPs to debate Brexit despite Exit Day being the 31st of October. However, the Prime Minister’s justifications for proroguing Parliament were unanimously rejected in the Supreme Court by Lady Hale and the 10 other Justices in R (on the application of Miller) v The Prime Minister 2019. Boris Johnson’s reasons were deemed not ‘justiciable’ on account of a clear violation of Article 9 of the Bill of Rights Act 1688.


Article 9 states that, “The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place outside of Parliament”. Although the initial context was regarding seditious comments, the principle has since been interpreted by Lord Phillips as directed at “ the freedom of speech and debate in the Houses of Parliament and Parliamentary committees” in R v Chaytor [2010]. Therefore, Boris Johnson’s prorogation of 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”. The conclusion to the Miller case was that, in the scenario of the Prime Minister acting unconstitutionally, the “court will intervene”.


However, the Supreme Court has only intervened to the extent of allowing Parliament to resume, seemingly without holding Boris Johnson accountable for his actions against the state. The fact that Boris Johnson has been permitted to remain as the Prime Minister despite having acted unconstitutionally goes against Dicey's second principle of the rule of law. This principle states that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. The Miller case showcases that there is not proper regulation of the executive in the absence of the legislative.


Without proper regulation, the law around prorogation could easily be abused again and my concern is that the Supreme Court did not deliver a safeguard within its ruling. Yes, the Supreme Court may intervene but so far, the only Judicial intervention we have seen illustrates that our Prime Minister is above consequences for a clear violation of democracy.


HOW IS THIS USEFUL IN AN INTERVIEW?

Showing an interest in politics from a legal perspective shows your interviewer that you are capable of remaining objective throughout potential cases. This could also act as a platform for you to show that you have a wider understanding not only about written law, but also unwritten law. Discussing a controversial figure such as the Prime Minister, you’re likely to have your understanding or opinion on the subject matter challenged by an interviewer. This is not a bad thing! It shows that you have chosen a topic that they find interesting, keep a level head, and it is always better to have a shorter but more concise answer. Show your wider understanding of the impact of the law as well. Take the Coronavirus Act 2020 for example: during the pandemic, the legislature is less able to regulate the executive in the interest of quick legal response to an emergency situation. So, what would be the remedy if the Prime Minister is found to have acted unconstitutionally a second time?


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