Britain’s constitutional guardians strike back

LONDON — The US constitution is not “a suicide pact”, US Supreme Court Justice Robert H. Jackson famously wrote. For British Prime Minister Boris Johnson, however, the United Kingdom’s uncodified constitution may yet prove to be one — at least for his political career. Following a unanimous decision by Britain’s Supreme Court that Johnson had acted unlawfully in proroguing (suspending) Parliament earlier this month, Johnson’s tenure as Britain’s leader is in grave peril.

The ruling came at a moment when the entire Western world is riven with constitutional upheaval triggered by populist leaders who have stoked a conflict between the rule of law and rule by “the people”, their will defined by the populist leader. Populist governments on both sides of the Atlantic have broken with constitutional tradition and convention, abandoning precedent in order to seize any possible advantage, as Johnson sought to do in proroguing Parliament.

The matter of Parliament sitting has rarely been controversial. In normal times, the government controls a clear majority in the House of Commons and can push through its legislative agenda. But in seeking to suspend Parliament for five weeks, rather than the typical 4-5 days, it was embarrassingly apparent that Johnson’s was no normal prorogation. Johnson, a prime minister who is barely on nodding terms with the truth, ineptly tried to claim that the five-week period was linked to Parliament’s usual September recess, when the main political parties hold their conferences. But Johnson was obviously concerned with minimizing Parliament’s ability to prevent his pursuit of a no-deal withdrawal from the European Union.

From a purely political perspective, it would have been reasonable for the Supreme Court to find the prorogation lawful. After all, prorogation is nominally the sole prerogative of the executive. Yet had the court sanctioned Johnson’s action, it would have left a gaping lacuna in the law, providing both this and any future government with the opportunity to dissolve Parliament any time it pleased, for as long as it pleased. This would have upended the British constitution, which is premised on the notion of parliamentary sovereignty.

Since Britain’s transformation into a constitutional monarchy four centuries ago, the courts have been wary of allowing the executive, whether a hereditary monarch or an elected government, unfettered power. In the Case of Proclamations, heard in 1610, and cited by the Supreme Court in their decision overturning Johnson’s action, the King’s Bench held that “the King hath no prerogative, but that which the law of the land allows him”. The executive must therefore use the prerogative power within its “lawful limits”, and determining where those limits lie is the rightful terrain of the courts.

Rather than interpreting parliamentary sovereignty to mean merely that the “laws enacted by the Crown in Parliament are ... supreme”, the Supreme Court held that it must be necessary for the legislature to hold the executive to account. This constitutional principle, the court said, is how the “policies of the executive are subjected to consideration by the representatives of the electorate...and citizens are protected from the arbitrary exercise of executive power”.

Viewed from this perspective, the decision hardly seems controversial. While parliamentary accountability has never previously been recognised as a standalone constitutional principle, it is a natural consequence of Parliament’s sovereignty. If the government had the opportunity to dismiss Parliament on a whim, that sovereignty would be reduced to whatever opportunities it could snatch to legislate, while the executive could choose to ride roughshod over the electorate and its representatives. Once this threshold of justiciability was passed, the prospects that the Supreme Court would find Johnson’s prorogation lawful were slim to none. The government had failed to provide any coherent reason for the length of the prorogation. Instead, the court was presented with a plethora of incriminating circumstantial evidence, from the absence of a witness statement explaining the necessity of the prorogation, to its exceptional length. There was much to impugn the government, and little to absolve it.

In finding that the prorogation was unlawful, however, the Supreme Court departed from the reasoning of the Scottish Court of Session, which had previously ruled that the prorogation was unlawful because of Johnson’s intent when he sought the Queen’s assent. Johnson had intended to stymie Parliament, and therefore lied to the Queen about the reason for the prorogation. The Supreme Court sidestepped this banana skin, focusing instead on the effect of the prorogation: Interference with the constitutional principle of accountability.

Importantly, the court did acknowledge that this was terrain in which it would interfere only in exceptional circumstances. The government must provide reasons, but in considering those reasons, the court would give them “a great deal of latitude.” And in this case, the government was undone by its own lies. The court could not give latitude to any reasons, because no reasons had, or could, be given. So, faced with an unjustified interference with a fundamental constitutional principle, the court had no choice but to strike it down.

The UK Parliament and Supreme Court should now be seen as the vanguard of resistance to populism. Rather than yielding to some concocted “will of the people”, these institutions have emphasised that some principles are beyond majoritarian whims. Conservative members of Parliament like Ken Clarke and Dominic Grieve, who were willing to sacrifice their political careers to constrain an overreaching government, personify the need to put such principles before party loyalty. The quashing of Johnson’s prorogation was extraordinary, but both constitutionally correct and necessary. Those who respect constitutions and the values that underpin them must be vigilant and vigorous in defending them. There is a lesson here for US political and judicial institutions, particularly those Republicans who continue to demonstrate a greater loyalty to their political tribe than to their country.

Nicholas Reed Langen writes on the British Constitution for The Justice Gap, and is an education consultant.  Project Syndicate, 2019. 
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