Johnson’s prorogation was struck down as incompatible with the realities of our modern democratic lifeby George Peretz / September 24, 2019 / Leave a comment
The Supreme Court’s unanimous decision today, that Boris Johnson’s decision to advise the Queen to prorogue parliament for five weeks was unlawful, would not have been predicted by most legal commentators a month ago (it certainly wasn’t by me). The general view was that even if a prorogation decision was justiciable (capable of being considered by a court at all) the courts would not wish to delve into the merits of what was a decision of high politics.
What changed? I think two things did. First, the duty of candour did its work. This duty is often not appreciated: it requires the government—when faced with the judicial review challenge—to put its cards on the table by explaining its reasoning candidly. That has two key aspects. Documents necessary to explain that reasoning must be produced. And the explanation of the reasoning which is usually (but not invariably) produced must be in the form of a witness statement and therefore must be true, on pain of contempt of court.
In the present case there was no witness statement. And the documents left a gaping hole: they simply failed to explain why, in order to obtain a Queen’s Speech in October, such a long period of prorogation was required. There was some public concern that there might be other documents, in the form of officials’ (and for these purposes government special advisers are officials) WhatsApp messages or private e-mails, that might have explained the true purpose (and if so, would have been disclosable). But in the end the gaping hole spoke for itself: there was simply no coherent reason, that the government was prepared to own up to, why the prorogation took the form that it did.
The second was the realisation that maintaining the orthodoxy that prorogation was not justiciable left a nuclear weapon in the hands of an executive to shut down parliament whenever it felt like it. In past eras, judges might not have been troubled by that: the informal conventions of political life (backed up by the fear that what you did to the opposition would in turn be done to you) would be enough to restrain any misuse of that power. But, as a Downing Street spokesman managed unsubtly to remind everyone by making it known…