We're Dunne Proroguing...
- Admin
- Sep 25, 2019
- 5 min read
Following the ruling of the Supreme Court that prorogation of Parliament was an unlawful act (2019-09-24), our Ludlow MP Philip Dunne posted on Twitter:
Returning to Parliament this morning following Supreme Court decision yesterday, which raises huge implications for the future over the growing role of the judiciary in ruling on our unwritten constitution and decisions of future governments with or without parliamentary approval. — Philip Dunne (2019-09-25)
True to form, his tweet is disingenuous and deceptive, to say the least.
There are no 'huge implications.'
The role of the judiciary is the same as it ever was, neither growing nor shrinking.
To suggest otherwise is to negate the accountability of an inadequate Prime Minister who feels entitled to bend and break laws as he sees fit, regardless of the wider implications on the democratic parliamentary process.
Philip Dunne is supporting and excusing undemocratic behaviour which has now been declared unlawful.
On a wider scale, it was interesting to see many Conservative and Brexit Party supporters spluttering in a baffled manner about the Supreme Court justices being an unelected group 'interfering in the democratic processes of Brexit.'
Across Twitter and Facebook, and in comment sections of mainstream media websites, the usual right-wing suspects were pinkly frothing and wobbly-jowled in their indignation.
However, they (like Philip Dunne) were saying something about the judicial branch of government that was fundamentally incorrect, and it may be time to address the error.
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Political science 101 - the British parliamentary system.
The UK has three branches of government:
1. The legislative. This is the elected House of Commons and the House of Lords. The function of the legislature is to debate and pass laws.
2. The executive. This branch includes the Monarch as head of state in the UK, and also includes the Prime Minister and government ministers (who are simultaneously members of the legislative branch). The executive branch does not pass any laws (that is the legislature) or interpret any laws (that is the judiciary). Instead, it ensures that the laws are carried through, interprets them in courts, and decides on appropriate penalties within set legal boundaries.
Side note: The executive is able to pass Orders-in-Council which are either primary legislation deriving their authority from the Royal Prerogative, put into effect by the Privy Council in the name of the Monarch; or secondary legislation, effected by a Minister of the Crown using the authority granted by an Act of Parliament or other primary legislation. Both of these types of orders are mostly subject to judicial review.
3. The judicial. This is the branch of government which interprets laws and decides whether laws have been broken or not. The judiciary makes certain the law is followed by all - including politicians in the course of their duty.
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Many of the perplexed and quivering Conservative Twitterers are also asking versions of a question that they feel somehow negates the ruling.
— What precise law was broken by the government? Can't name one? Can't give me paragraphs and subsections? Checkmate, traitors!
The question in and of itself shows ignorance of British constitutional law.
The British Constitution is unwritten and based largely upon precedent, tradition, and interpretation. There is, therefore, no specific statute or paragraph to point to. To ask for such is ridiculous. This is why it takes the Supreme Court justices with their collective knowledge of precedent and intent to guide the ruling.
In brief:
The Queen approves of prorogation based upon advice from the Prime Minister. In this case, she was deemed to have been given incorrect advice and therefore, her approval for the prorogation is rendered null and void.
The prorogation had the effect of "preventing the ability of parliament to carry out its constitutional functions without reasonable justification."
The timing of the prorogation was essential in the ruling. The Supreme Court noted that the prorogation took place during 'exceptional circumstances' regarding Brexit. Prorogation is not the same as a recess - it prevents any debate, meetings, or even answering questions to ministers and committees (orally, in writing, or by email). It closes down the entire democratic process. This was deemed to have been a factor in why Boris Johnson misled the Queen in the first place, as without that motive it was an unnecessary action.
If Boris Johnson had been able to provide the Supreme Court with sufficient justification and proof that he had not misled the Queen, the ruling may have been different.
We must consider that the Supreme Court is constructed of eleven individuals who all agreed with the ruling unanimously. These people are experts in UK constitutional law. We pundits are not experts. We should listen to those who have dedicated their lives to accruing understanding and knowledge. Had it been a close judgement, one could understand dissension or a call to debate the ruling. However, this ruling is clear and justified.
It is not traitorous to uphold democracy and parliamentary process. It can be considered traitorous to lie to the Queen. It is certainly perfidious to place the country in potential harm for political purpose.
And to be absolutely clear - the Supreme Court ruling that the prorogation was unlawful is absolutely nothing to do with 'preventing Parliament from enacting Brexit.' It does, however, have a lot to do with exactly how Brexit is enacted.
We should note that MPs are elected to represent all of their constituents - not just the 'leave' voters or the people who voted them into power. They represent absolutely everyone.
Even when respecting the referendum result and debating the process and details of leaving the EU, there are so many variables that will have an effect on different regions of the country and different sectors of society, that to close Parliament and push ahead with a potential 'no-deal Brexit' is undemocratic, unreasonable and irresponsible.
Brexit is such a complex and far-reaching, nuanced issue that to push ahead without parliamentary debate on the details removes the voices of the people. The referendum may have been to leave the EU - but the referendum did not ask leave voters exactly which plan they favoured - and that makes a massive difference.
This means that the prorogation itself was fundamentally anti-democratic. The executive branch acted recklessly in a way that silenced the legislative branch.
And the judiciary branch rightfully stepped in.
When politicians often have vested interests - beholden to interest groups, donors, personal investments, and the need to retain power - the judiciary is an unbiased branch of government who will rule only on whether or not an action is acceptable within the law and within legal precedent - whilst also protecting future governments from undemocratic manipulation.
The judiciary is an essential part of a well-functioning democratic process. It is a safety net to ensure that no politicians can by-pass democracy and push potentially harmful actions through the system whilst avoiding accountability.
Whether you agree with Brexit or not, any legislation that is legitimate should be able to withstand democratic scrutiny and debate.
And whether you agree with Brexit or not, everyone should be totally grateful that our checks and balances work.
— Keir Hardie's Cap
Note: The writer of this piece is not an expert on constitutional law, just someone interested in politics and the workings of government who is tired of others (who are similarly without expertise) acting as though they know more about constitutional law than the eleven Supreme Court justices. If there are any factual errors or suggestions, please comment below the post, or use the 'contact us' form. Thank you!
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