Analysis: A setback for Boris Johnson

The U.K. Supreme Court’s unanimous verdict that Prime Minister Boris Johnson’s prorogation of Parliament is a precedent-setting judgment. Foremost, Britain’s highest court has affirmed that the question of the suspension of Parliament fell well within the domain of judicial review. Only days earlier, the High Court in London upheld the government’s contention that the decision was outside its remit, as it pertained to the realm of high politics and policy, over which the courts had no jurisdiction. The English court accordingly did not rule on the legality of the prorogation.

But in its judgment on Tuesday, the Supreme Court has pronounced decisively that any future suspension of the chamber comprising elected representatives would be apt for legal scrutiny.

The sovereignty of Parliament

This was precisely the issue former Prime Minister John Major had raised in his intervention in this case. The controversy over the sovereignty of Parliament and the authority of elected representatives has been finally restored. The court’s position on that question also assumes immense relevance given that Mr. Johnson has not emphatically ruled out another suspension in the event of the judgment going against the government.

The 11 British justices also ruled that the shutting down of the two chambers for five crucial weeks before the country’s landmark transition amounted to the silencing of the legislature, nay the suspension of parliamentary democracy itself. This categorical position is a direct rebuff to the government’s attempt to gloss over its true intentions, namely to subvert the democratic process in the guise of commencing a new parliamentary session to introduce fresh legislation. Brenda Hale, President of the court, observed that the decision had taken place in exceptional circumstances in the country — namely Britain’s withdrawal from the EU on October 31.

Lady Hale sought to differentiate between a parliamentary recess and a prorogation. Even though the two houses do not meet in the former case, MPs can nevertheless transact urgent legislative business, she pointed out. Conversely, prorogation totally deprives Parliament any opportunity to scrutinise legislation to secure an orderly withdrawal.

The political fallout

The judgment on Tuesday reflects a remarkable similarity with the stance of the Scottish court, which earlier ruled on the prorogation of Parliament. The judges of the Edinburgh court held that the circumstances leading up to the government’s decision led them to conclude that it was unlawful. The verdict will hopefully settle once and for all the prolonged confrontation between Britain’s legislature and the government that began in the aftermath of the June 2016 EU referendum.

The political fallout from the judgment has been predictably explosive, with loud cries for Mr. Johnson’s resignation. It is not inconceivable that his tenure goes down in history as among the most short-lived in British premiership.


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