Britain's Prime Minister Boris Johnson (Reuters file)
Britain's Prime Minister Boris Johnson (Reuters file)

Opinion | A prime minister held to have frustrated parliament

A supreme court verdict on Boris Johnson’s suspension of the House is welcome, but anxieties loom

Autumn might have come, but rather than gifts of mellow fruitfulness, clouds of constitutional turbulence hover over Westminster in London, UK. Nearly three years after voters chose to leave the EU, the shape of its arrangements and future relationship with Europe remain perilously unclear. A landmark supreme court verdict has delivered a stinging rebuke to a government that sought to prorogue—that is to say, suspend—the British Parliament at a time of unprecedented uncertainty. The historic verdict is welcome, as it strikes a blow in support of parliamentary democracy. Yet, it cannot obscure the fact that considerable work lies ahead. As an embattled UK government faces up to reality, the need for flexible thinking has never been greater. Hard choices will have to be made.

The issue before the supreme court hinged on whether the advice given by Prime Minister Boris Johnson to Queen Elizabeth II that parliament should be prorogued from a date between 9 and 12 September until 14 October was lawful. The court acknowledged that the matter arose in circumstances that have never arisen before and are unlikely ever to arise again. However, in the fine tradition of common law evolution, the court was confident that the law is used to rising to such challenges and would be able to reason its way to a solution.

Two fundamental questions were posed. First, was the PM’s advice to the queen lawful and justiciable in a court of law? Second, if it was, by what standard is its lawfulness to be judged? The government vigorously sought to assert that the matter was inherently political in nature and, therefore, non-justiciable. There are some matters that turn on political decisions. Yet, if that was blankly accepted across the board, the other side of the coin could pave the way for unencumbered executive power normally associated with autocracies. The court straddled this finely balanced tension with aplomb. It delivered a spirited illumination of modern parliamentary constitutionalism, in which the proper exercise of executive power and whether limits have been exceeded was determined to be justiciable.

In examining the role of the prime minister, the court placed a heavy responsibility on the individual as the only person to take all relevant interests into account, including the interests of Parliament. This is a significant reminder of the PM’s role, which is broader than only being an advocate of a narrow party prism. Too often, this distinction gets obscured in the rough and tumble of everyday politics.

In the absence of a written constitution, the court dug deep into the conventions and practices that have allowed a rich and varied common law jurisprudence to develop. The notion of parliamentary supremacy, parliamentary accountability, and separation of powers found robust ventilation. The dictum that “the king hath no prerogative, but that which the law of the land allows him" was meaningfully invoked. A dim view was taken of the prime minister’s ill-thought description of a September parliamentary sitting as a “rigmarole".

Ultimately, the unanimous view reached by 11 judges was that the PM’s action had the effect of “frustrating or preventing the constitutional role of Parliament in holding the government to account". It was unlawful as there was no reasonable justification for proroguing Parliament for five weeks at a time of extraordinary upheaval. In a devastating ruling for the government, the court said “the extreme effect on the fundamentals of our democracy" could not be unchallenged. Comparatively speaking, Indian constitutional scholars might recognize shades of the epochal “basic structure" constitutional theory under the Kesavananda Bharati case put to practice. Three cheers for the court’s boldness.

What lies ahead for the UK? The basic Brexit tumult remains unresolved. The government is intent on brandishing a no-deal scenario, but the parliamentary arithmetic is unlikely to allow it. As things stand, Britain will leave the EU on 31 October unless it comes up with an alternative path or an extension request acceptable to Europeans. The irony in all of this is that an exercise in “taking back control" from the EU has turned out to be dependent on it.

Moderate Tories have been utterly squeezed. Many, such as former PM Winston Churchill’s grandson Nicholas Soames, have been unforgivably expelled. What about the Labour party? The principal opposition’s stance is incoherent at best and obfuscated at worst. Labour has opposed nearly all options under a policy of “constructive ambiguity" without outlining any meaningful alternative. Labour Party leader Jeremy Corbyn’s Euroscepticism has boxed a party of largely remainers into an appalling corner. Expect moderates to drive support for the Liberal Democrats.

Given this level of uncertainty, a general election cannot be discounted at some point, potentially in November. Yet, another election alone would not resolve the underlying issue. Increasingly, it would seem that a second referendum on Brexit may be required. Far from being a counter-democratic machination, it would put the structural choices to the electorate for resolution. In the days ahead, the onus is on British politicians to find a compromise. The stakes could not be higher. An effort that falls short, resulting in an eventual no-deal scenario with harsh consequences for the least well off would be unforgivable.

Rishabh Bhandari is a London-based lawyer and political commentator

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