Supreme Court in U.K. flexes its muscle

On Tuesday, the Supreme Court of the United Kingdom did something so revolutionary that even people who wanted a revolution were shocked. But let me back up. On Aug. 28, a small band of inner- circle Conservative parliamentarians flew to Balmoral Castle in Scotland to meet secretly with the Queen. They were there, as a subset of the Privy Council, to follow up Prime Minister Boris Johnson’s request for a prorogation of parliament.

Canadians are broadly familiar with prorogation from the controversy we had when Stephen Harper requested one, and got it, in 2008. Prorogation is a brief suspension of parliament that ends a session and wipes out the progress of bills. It is done by means of an order of the sovereign ( the governor general here) on the advice of a prime minister.

In Britain the monarch never refuses this advice. She sent Black Rod to the Commons chamber to signify her will Sept. 10.

The Lady Usher met with protest and recrimination. New PM Boris, you see, had lost his party’s previously existing majority in the Commons on Sept. 4. The old remedy for this, one still available in Canada, would be for the PM to advise the Queen to dissolve Parliament for an election.

But the U. K. has rearranged its furniture. The Fixed Term Parliaments Act 2011, passed by a Conservative- Liberal Democrat coalition government, removed the power of dissolution ( but not prorogation!) from the PM- Queen tandem. An early British general election can now happen only if there is a House vote of no confidence or if two- thirds of the House just votes to have an election. Opponents of Brexit don’t want PM Boris to have an election before the current legally stipulated Brexit date, Oct. 31. So they refuse to dissolve, preferring to cling to their benches and go on obstructing any no-deal Brexit.

The PM hoped to conduct a last- ditch negotiation with Europe having the threat of a no-deal exit in his pocket. That’s why he sent his grandees to Scotland. Prorogation was a political manoeuvre. It has been used exactly that way before, and courts never said boo, because prorogation is a royal prerogative and not subject to judicial review.

Or so almost everyone always thought. But now the U. K. Supreme Court — itself founded only in 2009 — has concluded otherwise.

Suing the Queen over the prorogation order would violate a strong constitutional axiom, so private citizens brought suit on the grounds that the PM’S advice to prorogue had been unlawful. It had been false, and irrational, and unfounded, and contrary to deep constitutional values. No doubt it might cause cancer in mice.

Can courts review ministerial actions for reasons of this nature? The traditional answer is no. Courts can decide questions rationally when they are able to refer to some written law or principle of the common law, but some issues are pure matters of politics or high policy. The power of a Crown ministry to do such things as waging war and signing treaties, for example, has remained fairly untouchable. (“National security” has, in British courtrooms, remained a magic formula for non- justiciability.)

There’s a deep theoretical issue here that provided space for an anti- Boris attack: are some royal prerogatives absolutely non- justiciable per se? Over time, fewer and fewer of these prerogatives have continued to exist. Even when they haven’t been supplanted by statute, as the dissolution power was, they have been balked at times by judges, usually to protect individuals or businesses from arbitrary exercises of authority.

Maybe, the anti- Brexit legal phalanx suggested, absolutely nothing that a ministry does through the Crown is totally beyond review by courts. This is the theory that the U. K. Supreme Court accepted, voting 11- 0.

The court found that the government’s ill- documented explanations for proposing a long period of prorogation were not convincing or lucid, and concluded that the move was intended solely to diminish the parliamentary accountability of ministers.

The court sees itself as fulfilling its proper function of upholding parliamentary supremacy, and doing so in an extreme situation it describes as “unlikely ever to rise again.” Pro- Brexit Leavers are likely to see the court as having made itself an ultimate arbiter of U. K. politics. Some Remainers will agree with this, and think it wonderful.

And, in Canada, some experts will say that this has implications for us: our appellate courts might embrace the theory that nothing is altogether beyond the courts. And so they might — but the widespread suggestion that Harper’s 2008 prorogation could have been blocked under this theory falls flat under scrutiny.

In 2008 Canada, Harper, then a minority PM, prorogued Parliament to gain time for a second pass at getting a budget through the House. The U. K. Supreme Court intervened in the September prorogation only because Brexit is a fundamental constitutional change and a tight legal deadline is involved. Such changes mostly cannot happen wholly within Canada’s Parliament at all: we abandoned strict parliamentary supremacy, which is crucial to the U. K. ruling, in 1982. Moreover, in our 2008 situation, then- governor general Michaelle Jean felt capable of refusing the PM’S advice, and she succeeded in negotiating conditions for the grant of prorogation. That would make it infinitely harder to attack the prorogation by means of a lawsuit; you would presumably have to sue the Crown itself, not the PM alone.

THERE’S A DEEP THEORETICAL ISSUE HERE. — COLBY COSH