Acton Institute Powerblog

The UK Supreme Court’s dangerous ruling

This morning, the Supreme Court of the United Kingdom ruled unanimously that Boris Johnson unlawfully suspended Parliament and annulled his order to prorogue. Today’s Supreme Court decision holds deep importance for Brexit, EU corruption, and the rule of law.

The Supreme Court branded Prime Minister Johnson’s order to prorogue Parliament “unlawful” and declared it null and void. Members of Parliament were told to act as though it had never taken place. Speaker John Bercow announced Parliament will return to session tomorrow morning at 11:30, and all the legislation, that had been scrapped under prorogation receives legal resurrection.

Establishing judicial activism

Today’s ruling is without legal precedent. Jurists have traditionally interpreted the UK’s unwritten constitution to hold an order to prorogue Parliament as not justiciable. This dates back to at least Article IX of the 1689 Bill of Rights, which states that “[p]roceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”

This is precisely the decision reached by the English High Court on September 11, which declared prorogation was “not justiciable.” Since the decision is “purely political,” prorogation “is not a matter for the courts.”

Gina Miller, the campaigner who appealed the decision, argued Johnson did not merely want to prepare for a new domestic agenda; he acted to shorten political debate over Brexit and legally misled Her Majesty. But again, the lower court had ruled against her. “Parliament may be prorogued for various reasons,” the High Court ruled, and it “is not limited to preparing for the Queen’s Speech.”

Suspending Parliament has been, at times, transparently political. “Prorogation has been used by the Government to gain a legislative and so political advantage,” the court ruled. The Parliament Act 1949 could legally take effect without a vote from the House of Lords if three successive sessions of the House of Commons passed it. The government decided to prorogue Parliament to create three sessions within two months. “[E]ven if the prorogation under consideration in the present case was … designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review.”

But on Monday, the Supreme Court of the UK overturned them. The 11 judges held that “the decision to advise Her Majesty to prorogue [P]arliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.” (Emphasis added.)

The judges ruled that intention, process, and compliance with constitutional norms were irrelevant. Boris Johnson’s order could be struck down because judges disliked the “effect” of an otherwise lawful action. This UK Supreme Court ruling is not an act of judicial review but judicial fiat.

Specifically, the judges found the five-week timeframe too long. Citing previous legislation, the judges rule that there must be a time-based “legal limit on the power to prorogue.” They proved this by citing previous “statutory requirements” – that is, laws passed by previous Parliaments – requiring MPs to sit for a certain period of time.

However, this Parliament passed no such legislation. Indeed, members were expected to break for at least three of these five weeks for party conferences. Since MPs do not usually sit (that is, they don’t work) every weekday, the order cost them only a few days of deliberation. But in the view of the judges, this was too much and rendered a lawful order “unlawful.”

To be clear: Members of the Supreme Court substituted their own judgment for the law. If allowed to stand, this judgment portends a dim future for constitutional order in the UK. It will mean that 11 judges, in the absence of statute, can create and impose new legal norms on other branches of government. This threatens to put the UK on the same path as the United States, where five appointed judges can invent new “rights” and overturn legislation that they deem “unduly burdens” the rights they artificed into jurisprudence.

Whither Brexit?

Boris Johnson has said he will simultaneously proceed with Brexit on October 31 and comply with a new law barring the UK from leaving the EU on that date unless Parliament approves a withdrawal deal. EU officials have shown little sign of radically altering the deal offered to Theresa May, which MPs voted down multiple times by historic margins. Parliament’s Remain majority intends these actions to stymie the implementation of the 2016 referendum until such time as it can be overruled through a second, “People’s Vote.”

Brexit might allow the UK to strike free trade deals with African nations, especially for agricultural goods no longer subject to EU tariffs of up to 18 percent. Such deals might allow shipments of Christian aid from churches in the West to slow, then stop, as these nations provide for their own needs and take their place as part of the developed world. People of faith concerned about eradicating poverty see this future made more remote.

Defining democracy down

EU figures have already used the ruling to justify the arcane and Byzantine practices of Brussels. Guy Verhofstadt, the EU’s Brexit negotiator who has said he wants the EU to morph into an “empire.”

“Parliaments should never be silenced in a real democracy,” he tweeted. “I never want to hear Boris Johnson or any other Brexiteer say again that the European Union is undemocratic.”

At least one big relief in the Brexit saga: the rule of law in the UK is alive & kicking. Parliaments should never be silenced in a real democracy.

I never want to hear Boris Johnson or any other Brexiteer say again that the European Union is undemocratic.

— Guy Verhofstadt (@guyverhofstadt) September 24, 2019

However, it was not Boris Johnson, Daniel Hannan, or Nigel Farage who said the election of Ursula von der Leyen to lead the European Commission proved “the EU is hell-bent on deepening its democratic deficit and pushing citizens farther away from its decision-making.” It was Martin Schirdewan, a German MEP and acting president of the European Parliament’s Confederal Group of the European United Left/Nordic Green Left (GUE-NGL).

The Supreme Court of the UK’s ruling has substituted the rule of an unelected elite for constitutional order, postponed human flourishing, and whitewashed EU mismanagement. No one should celebrate this trifecta.

(Photo credit: Tom Morris. This photo has been cropped and modified for size. CC BY-SA 3.0.)

Rev. Ben Johnson

Rev. Ben Johnson (@therightswriter) is an Eastern Orthodox priest and served as Executive Editor of the Acton Institute (2016-2021), editing Religion & Liberty, the Powerblog, and its transatlantic website. He has extensively researched the Alt-Right. Previously, he worked for LifeSiteNews and FrontPageMag.com, where he wrote three books including Party of Defeat (with David Horowitz, 2008). His work has appeared at DailyWire.com, National Review, The American Spectator, The Guardian, Daily Caller, National Catholic Register, Spectator USA, FEE Online, RealClear Policy, The Blaze, The Stream, American Greatness, Aleteia, Providence Magazine, Charisma, Jewish World Review, Human Events, Intellectual Takeout, CatholicVote.org, Issues & Insights, The Conservative, Rare.us, and The American Orthodox Institute. His personal websites are therightswriter.com and RevBenJohnson.com. His views are his own.