Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘written constitution

A big day in the Supreme Court

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods|) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html
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The changing constitution – abolition of the Select Committee on Political and Constitutional Reform

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Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.

For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/

Written by lwtmp

October 12, 2015 at 3:04 pm