Explaining the Prorogation Judgement (Elections Generally)


Hmmmm, yes. I suppose we should do something on that. The first thing to make clear is that this decision isn’t about Brexit. No really. No, really really. No – ouch. And we don’t mean that they’ve used legalese to pretend it’s not about Brexit whilst actually being all about it. This was genuinely a narrow matter of British constitutional law which could arise any time a British Prime Minister prorogued Parliament for five weeks without any reason. It’s important to remember that while the Supreme Court judgement may affect Brexit, this is only because the existence of Parliament will affect Brexit. The judges have done nothing to alter the process. As it stands we’re still due to leave the European Union on Halloween, with or without a deal. and they’re still an Act on the books that requires the Prime Minister to seek an extension if they can’t get a deal. With all that in mind why have people reacted so dramatically and why on earth did the BBC boot the One Show for an Andrew Neil Special?? Let’s don our lawyer hats and find out. First, let’s spend a minute explaining judicial review, or to give it its proper name wiggy-judgy-oversighty. Whilst Britain has no written constitution, there are a number of laws and constitutional principles that limit decision makers, including the Prime Minister. If a decision goes beyond these constitutional limits, Courts in Britain are able to say that the decision itself wasn’t authorized and therefore, legally speaking, never happened. In this case the decision was Boris Johnson’s advice to the Queen to parole Parliament for five weeks. The question before the judges was whether Boris Johnson had exceeded his lawful powers by calling for a prorogation when he did and for as long as he did. Now it might seem like the answer that question is a big blonde yes, but before the judges could even look at that they first needed to determine whether the decision to porogue Parliament could be subject to wiggy-judgy-oversighty, or as they would call it, whether it was justiciable. A: Why would it be? The decision to borough Parliament is one of the Prime Minister’s prerogative powers [Music] Perogative powers are the residual powers of the monarch that are now exercised by the Prime Minister. They don’t stem from Acts of Parliament, but rather from the misty swamps of time. Generally judges are very reluctant to overturn decisions made by perogatice powers, because they generally concern political issues, which judges don’t want to touch with a bargepole. Indeed, that is what happened in a lower English Court in this very case, with judges saying that no matter how and why Boris Johnson prorogued Parliament, it was a political decision for the PM to make however and whenever he wished. However, in Scotland the opposite happened, with judges ruling that there had been a breach of constitutional limitations and that prorogation had to be overturned. Naturally, all sides appealed at all levels, with the government trying to reverse the Scottish decision and the other side trying to reverse the English decision. To save time, the Supreme Court heard both together. Lady Baroness Hale, speaking for a unanimous panel of eleven Supreme Court justices, stated the following in slightly reductive terms Justice Hale gave two big justifications for this, the first being the principle that Parliament is the source of the government’s democratic legitimacy and that therefore the law couldn’t accept a scenario where the Prime Minister could parole Parliament for as long as they want without any legal recourse. The second justification was similar: Parliament exists to hold ministers to accound, and therefore an unlimited power to prorogue would give the PM the unlimited power to avoid scrutiny, which sounds pretty constitutionally if he no matter how you take your chips. So having concluded that it is possible for a court to overthrow a bad prorogation, the question then became whether Johnson’s propagation was a bad one. And there the government did themselves no favours. Prorogations ordinarily last about a week. As we’ve already said, Boris Johnson had prorogued Parliament for five weeks and the government’s lawyers had given the court no evidence as to why this was necessary. This made it very easy for Justice Hale to find that the government had given insufficient consideration to Parliament’s rights. Or in her own words, As the decision was unlawful, legally it never happened. Or as Hale put it, it was as though the Commissioners proroguing Parliament had gone into the building with a blank piece of paper. Or as Boris Johnson calls it, detailed alternative arrangements for the Irish border! Thank you, thank you! Inspect the veal! What happens next? At the time of filming, Speaker John Bercow has already confirmed Parliament will return early, when we can expect a lot of brouhaha. Watch for Conservative MPs that have previously said prorogation had nothing to do with Brexit now criticising overturning it as an act of Remainer sabotage. Zooming out, the judgement also suggests that British judges are becoming more willing intervene in politics. This is either because of a undemocratic instinct that the judges harbour, or it’s because our politicians are increasingly playing games with even our most basic constitutional norms. It’s the latter. Lastly, if you are that unlikely Brexiteer that has a) watched this video, and b) not already punched through your screen at my disgusting metropolitan face, then we can understand why this judgment might be a little disappointing. But consider this: do any of us really want a situation where a Prime Minister can indefinitely suspend Parliament? Surely whatever we disagree on otherwise, the continuation of representative democracy [MUSIC] Isn’t that right Alex? Credits: (A) All joking aside I am actually a qualified lawyer. Maybe I could explain… (M) SILENCE IN COURT. Just tell them to LIKE and subscribe. (A) Fine. Please like, share and subscribe and maybe check out our other videos. They’re similar, but we had more time to make them so they’re jazzier still. (M) SO JAZZY.

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