‘Constitutional coup’ claim wildly over blown

TUESDAY’ S Supreme Court judgment was no constitutional coup.

The power to prorogue Parliament is, in theory, one belonging to the monarch, but centuries of constitutional convention have made it a power the monarch exercises on the Prime Minister’s advice.

The monarch has no option but to accept the Prime Minister’s advice and so this power is, in reality, the power of the Prime Minister.

The Prime Minister must exercise this power lawfully, in accordance with the constitution.

In our constitutional system, we do not elect a government, or a Prime Minister — we elect a parliament from which a government and Prime Minister commanding the confidence of that parliament are drawn.

A Prime Minister who attempts to prevent Parliament from doing what the people elected it to do acts unlawfully and his or her actions can properly be declared null and void in court.

That is what happened in this case.

In reaching that conclusion, the Supreme Court did not inquire into the Prime Minister’s motives, or purport to examine any privileged communications. It did not second guess his political judgment.

It took account of established constitutional practice and evidence filed in court by former Prime Minister Sir John Major to take judicial notice of the fact that the prorogation of Parliament prior to a Queen’ s Speech is something that lasts for four to six days, not five weeks.

I have expressed doubts in this newspaper (Write Back, September 2) as to whether the courts would intervene in this matter.

That was not to suggest that they could not, or that the Prime Minister’s conduct was unchallengeable.

It was an expression of doubt as to whetherlegal remedy was necessary, as the political process could still prevent the Prime Minister from railroading Brexit through against the wishes of a majority of MPs.

Indeed, in the week that followed, Parliament probably accomplished more in passing the European Union (Withdrawal) (No 2) Act 2019 than it had in the previous three years.

One would have to wonder what more Parliament will be able to do over the weeks ahead.

Boris Johnson has claimed that there area lot of people who want to frustrate Brexit — and, indeed, thereare.

However, if the Prime Minister has to resort to tricks like these to frustrate the people who want to frustrate him, it is time to think again about the entire Brexit process.

DR DAVID CAPPER School of Law Queen’s University Belfast