EDITORIAL: Re-affirming parliamentary sovereignty
“…the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts…” –Lady Hale P.
Last week’s decision of the UK Supreme Court nullifying the attempted prorogation of Parliament by Prime Minister, Boris Johnson, is remarkable for more than one reason. The first is the alacrity with which the matter was heard and concluded. Hearing took place over the course off three days, September 17 to 19 and the Supreme Court delivered its judgment only five days later on September 24. This should prove an object lesson for our local judiciary that has more than once been hauled over the coals by the Caribbean Court of Justice for their relative and inexplicable sloth in giving decisions.
The second is that the decision puts paid to any notion that matters of governance by the Executive are not justiciable at common law and to the frequently voiced lay view that Parliament is the highest court in the land. In doing so, however, the Court may have opened itself to a charge of trespassing on the separation of powers. We do not agree that it did so.
The essence of the decision is that Mr. Johnson’s advice to the Queen to prorogue Parliament was unlawful and a nullity because it had been given with a bad motive; namely, so as to avoid further parliamentary debate in the run-up to Brexit, which by virtue of the recently enacted European Union (Withdrawal No 2) Act 2019 required the Prime Minister to seek on October 19 an extension of three months from the European Council, unless by then Parliament had either approved a withdrawal agreement or approved leaving without one (the “no-deal Brexit”).
It is by now trite law that even a lawful act effected with a bad motive is generally treated as unlawful. According to Lord Denning in another context, deeming a work-to-rule by employees a breach of the employment contract-
If [the employee], with the others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of his contract. It is no answer for any one of them to say ‘I am only obeying the rule book,’ or ‘I am not bound to do more than a 40-hour week.’ That would be all very well if done in good faith without any wilful disruption of services; but what makes it wrong is the object with which it is done. There are many branches of our law when an act [that] would otherwise be lawful is rendered unlawful by the motive or object with which it is done. So here it is the wilful disruption which is the breach…”
So far as the illegitimate trespass on the separation of powers argument is concerned, Lady Hale P referred to the 17th century decision in the Case of Proclamations where the court had held that “the King hath no prerogative but that which the law of the land allows him” and concluded persuasively that “if the issue before the court is justiciable, deciding it will not offend against the separation of powers…the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers”. Is there a parallel here with the existence of a lengthy period between the dissolution of Parliament and the date for general elections.