The Supreme Court has illustrated how to restore judicial judgments in the UK to objective facts instead of subjective beliefs.
Instead of trying to read Prime Minister Boris Johnson’s motives, as the Court of Session judged, Lady Hale, President of the Supreme Court, specifically excluded this in her statement explaining the unanimous decision of eleven Justices of the UK Supreme Court that Parliament had not been prorogued.
Basis of the judgment
The Supreme Court based its decision on there being no justification put before the Court for “such an extreme effect” as proroguing Parliament in such unique “one-off” circumstances. This being so, “there is no need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.” This contradicted the Court of Session in Scotland which judged that “it was motivated by the improper purpose of stymying Parliamentary scrutiny of the Government”, in effect the Court of Session acted as a mind-reader and relied on its own beliefs. The Supreme Court avoided this subjective assessment in the Court of Session judgment and restored objectivity to the decision-making process.
Thus the Supreme Court did not assert that the Prime Minister Boris Johnson had misled the Queen, although this did not stop political opponents saying that he did so and even that he lied.
Political opponents are, as usual, attacking the man. In this case ‘breaking the law’ is a retrospective judgment requiring this appeal to the Supreme Court to determine. One can hardly say that the Prime Minister ‘knowingly’ broke the law. Mistakenly, yes, but clearly not deliberately. No-one asserted with clarity how the law was broken until the Supreme Court clarified it today with objective reasons.
Even the Remainers have admitted that “none of us ever thought that the (Supreme) Court would go so far as actually to quash the Prorogation” as Anna Soubry MP put it to the BBC commentator Ben Brown, who himself said: “I don’t think that many people were expecting this judgment.” Brown had to point out to Caroline Lucas MP and Soubry that the Justices had not said that Johnson had lied, but Soubry said ‘the implication’ was there. Although one of the appellants infamously relied upon the accusation of lies before the Supreme Court, the Justices avoided this.
In the same interview Lucas moved straight on to the need for a written Constitution, and Soubry to the UK remaining in the European Union, showing how politicians seize the momentum to promote their personal agenda and capitalise on critical moments instead of sticking to the point.
BBC’s Ben Brown asked the BBC Legal Correspondent: “Clive Coleman, you didn’t see this coming, did you?” Coleman: “Well, no, I don’t think any of us saw … no-one saw this coming.”
Retrospective application of the law has been a feature of judicial behaviour since our involvement in the European Union whose procedures undermine even habeus corpus. It has become so ingrained in public consciousness that public debate is ready to judge ‘lies’ retrospectively. Public debate uses the retrospectoscope with gay abandon, a feature that is recognisable to anyone studying ancient texts and with which students of the Bible are very familiar. Its loss is one of the features of a society that does not know its Bible.
Commentators are suggesting that the Supreme Court decision is a constitutional change. It is clear that Judicial Review is increasing in importance and relevance, but the Supreme Court has simply clarified the constitution. Some previously undiscussed matters were highlighted, in particular the imposing of prorogation upon Parliament without discussion. Although this is a new precedent of procedure in law, it is simply a clarification of the Constitution rather than a change in it, which is, after all, unwritten.
The surprise element in the judgment was the statement that “it is quite clear that the prorogation is not a proceeding in Parliament”. Proceedings in Parliament are protected by the Bill of Rights of 1688 from being impugned or questioned in any court. This is what makes the difference. This was not discussed by commentators nor mentioned by the appellants.
Rather, it came from the collective knowledge of the Justices. The Supreme Court correctly took over from the appellants, a feature known in Scottish law as nobile officium. Instead of relying on ineffective appellant arguments, the Supreme Court used its collective legal knowledge to demonstrate the real state of the question.
When the above point was established, there could be no other decision and this is the reason for the unanimity among eleven Justices. Their unanimity surprised legal experts, but the reason for this is because of the objective basis of this essential point – overlooked by all except the Supreme Court.
This is why the judgment went beyond the request of the appellants – not only to say the topic was justiciable, and that the prorogation was unlawful, based upon the effect of this particular prorogation being to prevent Parliament from doing its job in this unique situation, but especially it quashed the proroguation, which commentators and legal experts had not expected. The reason for this was supplied by the Supreme Court and not by the appellants nor commentators.
It was so obviously the case that the 11 Justices all agreed, because this was the weak point in the whole prorogation process – unidentified prior to the Supreme Court, not even by the Attorney General Geoffrey Cox who had told Cabinet that prorogation was legal, based upon previous experience.
How can the Prime Minister or the Leader of the House Jacob Rees-Mogg be held accountable for not knowing this when legal experts and courts did not know it?
Although the Prime Minister’s advice to the Queen has been judged unlawful, this advice cascades further back to the Attorney General’s advice. In the light of this, a spokesperson for the Attorney General’s office – the government’s chief legal adviser – issued a statement today saying that the government “acted in good faith and in the belief that its approach was both lawful and constitutional”. It continued: “These are complex matters on which senior and distinguished lawyers have disagreed.” “The Divisional Court led by the Lord Chief Justice agreed unanimously with the government’s legal position, as did the Outer House in Scotland.” All this is true. The prorogation was a mistake through lack of general knowledge of the point identified by the Supreme Court, rather than deliberate lies.
The decision does not prove that the Prime Minister is a liar, as his political opponents have tried to pin upon him. Their accusations demonstrate their political opportunism and their own being ‘economical with the truth’.
What this event has demonstrated is that the legal advice to politicians and to the Prime Minister in particular is suspect. This was so with Tony Blair in his decision to go to war in Iraq, and it has been shown to be so with Boris Johnson.
When accusers assert that Boris Johnson misled the Queen, it cascades further back to the legal advisers misleading the Prime Minister.
Truth has fallen in the streets
Trading in lies has never been so prevalent. Complaints about fake news pale into insignificance compared to the quality and standard of public discourse by politicians.
‘Judgment is turned away backward, and justice stands afar off: for truth is fallen in the street, and equity cannot enter.’Isa 59:14
Jeremy Corbyn in his Labour Conference speech today said that Boris Johnson had been “found to have misled the country”. He had not. The Supreme Court did not say so.
In his BBC interview with Ben Brown, Ben Bradshaw MP had no compunction saying that Boris Johnson was guilty of deliberately breaking the law and misleading the Queen, neither of which did the Supreme Court assert in its judgment.
This is ‘par for the political course’. The inability to ‘tell-it-as-it-is’ is now endemic. Such politicians and commentators must over-egg their pudding not simply with over-the-top opinions but also by telling lies in the process of charging others of telling lies.
People hear what they want to hear. Having heard the Supreme Court judgment in their favour, the Remainers continued their own agenda and continued to muddy public debate with their own lies about the Prime Minister’s ‘lies’.
Brexit Civil War
The Supreme Court judgment is not about Brexit itself but how Parliament does its business and the accountability of ‘the executive’ to Parliament. In particular it was about the unlawful manner of proroguing Parliament.
In the English civil war, king Charles lost his head and if we were in earlier times the Prime Minister Boris Johnson would lose his. Opponents are calling for his head, ‘to do the right thing and consider his position’. This is the Brexit civil war. “Truth is the first casualty in war” and political discourse demonstrates it on a regular basis.
The essence of political behaviour
In view of the charges and counter-charges of lies, it might be worth considering this useful list of political shenanigans that are considered to be outside the remit of the law.
Today’s judgment is very specific – about the limits upon the Prime Minister’s ability to prorogue Parliament. The Supreme Court cannot curb the lies so endemic in public and political discourse. But the public should expect politicians to stop telling lies and misleading so many people.
‘Every idle word that men shall speak, they shall give account thereof in the day of judgment’ Mat 12:36.Jesus Christ
24 Sep 2019: Melanie Philips thinks the Supreme Court has changed the British Constitution. ” Of infinitely greater importance is the axe the Supreme Court judges have taken to the delicate but hitherto sacrosanct separation between politics and the courts … The issue was that this was a matter for parliament itself to decide. It should not have been a matter for the courts.” She quotes legal opininon to conclude: “So the judges made new law. They said the prime minister had not made a reasonable case for proroguing parliament for as long as five weeks.” Rather, it was the “one-off” situation, as described and understood, but specifically it was “that the prorogation is not a proceeding in Parliament”, which she describes as “one of the most startling aspects of this judgment”.
In my view, if this is indeed ‘new law’ rather than a new application of existing law, then the error has been in failing to discuss it during the Appeal before its implemention and imposition by the Justices, but this needs further discussion and clarification before it can be asserted to be so.
25 Sep 2019: in an interesting discussion on BBC Politics Live, Jonathan Sumption, former Supreme Court Justice, calls it a novelty, but it is rather a judgment upon proroguing Parliament without involving Parliament. However, if it has indeed “invented a new legal doctrine to achieve the result”, it further underlines the folly of speaking retrospectively about ‘breaking the law’, ‘telling lies’, ‘misleading the Queen’, but especially the concept of retrospective judgment by politicians and political commentators, which is the main point in this blogpost.
Sumption as the recent Reith Lecturer argued “that a decline in the willingness of politics to engage with divisive subjects has been accompanied by an unwelcome rise in the power of the courts” according to the BBC website, yet he seems to welcome the Supreme Court’s judgment.
11:50 a.m. the Attorney General Geoffrey Cox in the House of Commons said that the Justices of the Supreme Court “made new law which they are entitled to do”. I do not know the exact definition of ‘new law’, which I thought could only be created by Parliament, so it appears to me to be a modern, or new, clarification of how the Constitution applies and should operate. Additionally, Cox pointed out that one can criticise the judgment but “not impute improper or inappropriate motives” to the Justices. He could have added ‘to the Prime Minister’, but this may have been too provocative amidst the baying of the House of Commons. This blogpost deals with the widespread imputation of motives in public debate and in particular to the Prime Minister in proroguing Parliament.
Following the Prime Minister’s description of the Leader of the Opposition Jeremy Corby as “a chlorinated chicken” the Attorney General concluded another reply with a similarly rumbustious allusion “the time is coming when even these turkeys won’t be able to prevent christmas”, referring to the approaching General Election.
The Prime Minister Boris Johnson said that he believed the Supreme Court was wrong. He gave no reason in his speech that did not cast much light on the matter, but others had already begun the case for him.
25 Sep 2019: Philip Johnston in The Telegraph discusses if we have gone from the rule of law to the rule of lawyers? He details the unintended (?) consequences of Tony Blair’s abolishing the office of the Lord Chancellor and setting up the Supreme Court as a consequence of the European Court of Human Rights. It was another change without serious debate in the House of Commons. In recent times we have had two Acts of Parliament pushed through in one day each by an anti-Brexit House of Commons opposition day, without the usual scrutiny of both Houses of Parliament.
27 Sep 2019: the BBC has stressed the importance of not imputing motive when speaking about racism.
16 Oct 2019: it is now the Remainers who want to stop Parliament sitting!