Supreme Court Catch-Up : Tuesday

For whatever it’s worth, I watched a fair chunk of today’s Supreme Court proceedings (about half of Lord Pannick (yes that’s really his name), lawyer for Gina Miller who claims that the current prorogation of Parliament is illegal, and all of the government defence by Lord Keen). I’d love them to find in favour of Miller, but I have to admit that both sides have compelling arguments. My opinion counts for precisely jack shit, obviously, because I’m not a lawyer, but ah well.

I agree with Lord Pannick that the courts do have rights to intervene in certain political matters; there’s plenty of precedent for that. He made the point that enough other, broadly similar cases of accountability have been made to establish the principle on which to judge this one, even though prorogation itself has never been challenged in the courts before. I also agree that the government’s stated reasons for prorogation are not their actual reasons, and that it was done in order to prevent Parliamentary scrutiny at a time when it’s urgently required. I think his approach of arguing that the case is not about the Court having to set sensible limits on prorogation, but only to determine if it was done for a proper purpose, is a good one. The Court shouldn’t have that much influence over Parliamentary business, but it does seem reasonable to say that if Parliament was prorogued improperly then there could be legal consequences. And as he says, since the government is subservient to Parliament, the government should not have the power to affect its superior in this way.

However, Lord Keel made the point that Parliament has been prorogued for explicitly political purposes before, albeit under different circumstances. Thus if this prorogation is improper, the court needs to find a very good reason to justify that. Without a clearly stated legal purpose, this is difficult. I don’t agree that the government has provided adequate justification for the reasons for the length of the suspension. Nor was I convinced that Parliament could have voted to change the rules about prorogation - it wasn’t expecting this to happen so had no time to enact the necessary legislation. He made the point that recess and proroguing do have different effects; Parliament is not suspended entirely during recess as some committees do continue to meet, and thus some scrutiny remains. It was unclear from his responses why the government therefore chose proroguing over the ordinary recess procedure. His most damning point is that recess, contrary to recent claims, does not give Parliament the ability to recall itself, so in effect prorogation has not drastically reduced the amount of available time. But against this, a key difference of prorogation compared to recess is that Parliament has to vote to go into recess, whereas prorogation happens solely due to government decree. Had the government declared a recess instead, this might have been avoided.

The central issue is whether the government requires, legally, a specific reason to prorogue Parliament, and whether it’s acceptable to mislead the head of state. Although it seems obvious that the answers should be “yes” and “no” respectively, Lord Keel provided several precedents and Acts that indicate that the first answer may well actually be “no”. As to the second point, that remains unaddressed.