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PM: gave unlawful advice; frustrated Parliament

PM: gave unlawful advice; frustrated Parliament

🕔24.Sep 2019

“Scenes.” As young people would say, writes Kevin Johnson. “Unlawful.” “Unequivocal.” “Historical.”

These words are not, for once, hyperbolic about events in the Supreme Court this morning.

Lawyers, politicians and others far more expert than me will have much to say – today and for many years to come.

11 justices sat.

11 justices reached a unanimous judgement.

Both those facts are remarkable in themselves.

Baroness Hale’s verbally read summary judgement and the full judgement (which I have quickly scanned) make very clear both the justiciability of the case and the resulting judgement. The full judgement is well worth reading. It is now an important constitutional document with a legal and logical path that people like me (ie. non lawyers) can readily understand.

From the proceedings that I was able to watch, I was firmly of the view that Miller and Cherry had the stronger legal arguments (and the better advocates). But I am no lawyer (let alone a high ranking QC or justice) and did not even hope for a unanimous conclusion on either the justiciability or the case itself.

Here are just five sections from the full Supreme Court judgement. The emphasis is mine.

The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account. The answer is that of course it did. (p55. 56 parts)

That situation [Her Majesty was other than obliged by constitutional convention to accept… advice from the PM] does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament (p30).

Nowhere [in Memorandum dated 15th August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister’s Office] is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained.… above (p60).

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful (p61).

It follows that Parliament has not been prorogued and that this court should make declarations to that effect (p70).

There are different views on whether the PM should resign. Some of those are influenced by the thought of Jeremy Corbyn as PM or just the sheer political mess that would follow with the EU Council and Brexit day just weeks away. Anyone watching the Labour Party Conference scenes yesterday afternoon or hearing about underhand attempts to dismiss its deputy leader might struggle to be optimistic about its chances of securing the confidence of the House or avoiding its own brand of chaos.

I do not see how a Prime Minister who has given HM The Queen unlawful advice and who has frustrated the role of Parliament – as found by the highest court in the land – can believe he should remain in high office.

But we live in extraordinary times.

As they used to say at the BBC, Deputy Heads must role. So, the focus will turn to Dominic Cummings (the PM’s Chief Adviser who is already held in contempt of Parliament) and Nikki da Costa who gave the advice that turned out to be unlawful.

Questions should surely also be raised about the role of law officers, such as Attorney General Geoffrey Cox; Lord President of the Council, Jacob Rees-Mogg; and senior civil servants, including Cabinet Secretary Sir Mark Sedwill, about why they allowed such unlawful advice to proceed as far as it did.

A penny for their thoughts right now. What thoughts and conversations are going on between the Queen and her Private Secretary, Edward Young? In earlier times, Mr Johnson might have been relieved if it didn’t result in a trip to Tower.

The separation of powers, the rule of law and the sovereignty of parliament are intact.

Those campaigning to #Takebackcontrol should be pleased.

Today is a good day for democracy.

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