On September 24, the Supreme Court of the United Kingdom (UKSC) has declared the Prime Minister Johnson’s move to prorogued Parliament from the September 9 or 12 to October 14 was unlawful and that Parliament was not prorogued (2019 UKSC 41). An article on the Mises Wire (Ryan McMaken on 09/24/2019) has commented on this ruling, describing it as a ‘move of the UK’s political class designed to postpone Brexit yet again’. The article is asserts that ‘democracy is only allowed when the regime likes the outcome’.
There are certainly some valid arguments in this article. However, it is my position that the merits of the Court’s decision prevail.
The Brexit Referendum
The previous article has stated that, while the UKSC has not ruled on Brexit per se, in context it is an attempt to postpone Brexit. This may be true. The court proceedings have been initiated by an activist with a pro-European attitude, although her arguments have consistently been based on holding the executive accountable to the Parliament (see also 2017 UKSC 5). But the very recent context of power struggles within both the British Parliament and the British Conservative Party to which, I assume, Mr. McMaken refers, conceals the origin of these struggles. The question asked in the Brexit referendum was:
"Should the United Kingdom remain a member of the European Union or leave the European Union?"
51.89 % voted Leave, 48.11% voted remain. There are no further implications on the nature of the future relation with the EU or the withdrawal process. The Members of Parliament (MPs) have since then been split up into actual Remainers, MPs in favor of leaving with an agreement, MPs in favor of leaving without agreement (the so-called No Deal) and some positions in between.
Parliament has enacted the European Union (Withdrawal) Act 2018 defining an exit day, although with the possibility to extend, and requiring Parliament to approve any withdrawal agreement. As the agreement reached by then PM Theresa May was rejected, the exit day was postponed. The current position is that the UK will leave on October 31 with or without agreement, although since very recently, the European Union (Withdrawal) (No 2) Act 2019 requires the PM to seek a further extension if the Parliament does not consent to either an agreement or to no agreement.
While the political situation is therefore complicated, one thing remains clear: Parliament must have a say in the Brexit procedures. The government can negotiate with the EU, but it must be held accountable to the people’s representatives. It has no unlimited mandate.
The Court’s Ruling on the Prorogation
Prorogation ends a parliamentary session. During prorogation, the government can still exercise its powers, but Parliament may not meet, debate, pass any bills, debate Government policies, or ask questions to Ministers (2019 UKSC 41, §2). As such, prorogation prevents ministerial accountability to Parliament during the period of prorogation (2019 UKSC 41, §33).
Prorogation cannot be compared to a recess, which is voted upon in the House. Prorogation is a prerogative power. The Crown, advised by the Government, declares it. The Crown is obliged to accept the PM’s advice, which places constitutional responsibility on the PM as the only person with the de facto power to prorogue Parliament (2019 UKSC 41, §30).
While prorogation is a normal procedure, it is obvious that there must be a legal limit to prevent a completely unaccountable government. The UKSC has set the legal limit to the point when prorogation frustrates Parliament’s legislative and supervisory functions (2019 UKSC 41, §51).
The UKSC decided that the PM’s move to prorogue for around five weeks crossed this limit. The summer recess ended on September 3. Usually, Parliament would go into recess for around three weeks between September and October to allow for the party conferences. Then, the next session would have started with the Queen’s Speech which is prepared during prorogation. Normally, this takes six to seven days (2019 UKSC 41, §59). However, right now is not business as usual. The exit day and the preparations leading up to it are crucial for the future of the country, and, as outlined, there are multiple positions clashing. In fact, the majority of the House is opposed to the No Deal scenario (2019 UKSC 41, §53). Parliament could have decided to skip recess. Even if they agree to go into conference recess, they will retain their supervisory function. A prorogation of five weeks is unprecedented and creates a long time period just before the exit day where the government cannot be held accountable by Parliament. Above that, the Court found that the government did not provide reasonable justification for this unusually long time period. The government gave the impression that recess and prorogation are ‘much the same’ (2019 UKSC 41, §60). The motives of the PM did not matter to the Court. The length of the prorogation was not justified and frustrated the legislative and supervisory functions of Parliament.
The Merits of this Ruling
In his column, Mr. McMaken has brought several arguments relating to the politically charged situation in the UK. He criticized Parliament for preventing new elections, suggesting that they follow a party-political agenda and fear that Boris Johnson would win a majority in the next elections. He also asserted that only votes that help the pro-European position are allowed. Both statements might be true, and he has presented some cases to support them. But I suggest here that we should not let the noise around partisan power struggles conceal the facts. The PM has tried to create an unprecedented time where the government is not held accountable by Parliament. This is quite a drastic step, especially given the fact that the UK government is elected by Parliament. The government is only in office because it has the Parliament’s support. And we should also consider another fact: the Brexit referendum has only expressed the people’s will to leave the EU. There are still competing positions on the withdrawal agreement and procedure, even within the same party. It is the task of the Parliament to take those various interests into account.
Finally, I would like to defend the Court’s decision in view of one last statement which Mr. McMaken made: that democracy is only tolerated if it leads to the outcome preferred by the ruling class. This problem has been known before. J.S. Mill wrote that ‘the power of the people over themselves’ is often misinterpreted:
"The 'people' who exercise the power are not always the same people with those over whom it is exercised; and the "self-government" spoken of is not the government of each by himself, but of each by all the rest." (J.S. Mill, On Liberty, Ch. 1).
The majority might therefore try to oppress a minority to pursue their own interest. Mill already noted that the majority are not necessarily the most numerous people supporting a position, but it could also be those who made themselves accepted as majority. He therefore concludes that
"The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein." (J.S. Mill, On Liberty, Ch. 1).
The "ruling class," or the majority, might prefer certain outcomes. But to prevent a tyranny of the ruling class, the government needs to be limited in its power. With its decision, the UKSC has prevented the government from creating an unusually long period at a crucial time where it would not have been accountable to all the People’s representative. The court procedures might have been initiated for purely partisan motives. The decision might be in favor of what is perceived a pro-European class. But it has prevented that a small group of people enforces whatever agreement they reach on all citizens of the UK.