Brexit: UK Prime Minister Boris Johnson’s Prorogation of Parliament Found Unlawful by Supreme Court

In a landmark judgement, the UK Supreme Court has ruled on 24 September 2019 that the decision to prorogue (suspend) the UK Parliament was unlawful, throwing the departure of the UK from the EU into deeper uncertainty. In a blow to the Prime Minister, the Supreme Court unanimously ruled that it was not a normal prorogation and there was no justification for the suspension. The decision, therefore, was found to be “unlawful, void and of no effect”. This means it is as if Parliament was never suspended and parliamentary business is set to resume from Wednesday 25 September.

The British Parliament was originally to be suspended from 10 September to 14 October, formally by Queen Elizabeth, who remains the head of state of the UK, on the advice of the Prime Minister. Prime Minister Johnson had claimed the reason for the suspension of Parliament was to allow for the introduction of a new legislative agenda and that it did not concern the opposition of British MPs towards a no-deal Brexit. Despite this, the Supreme Court found that the Prime Minister had not given any reason - “let alone a good reason” - for suspending the legislature for five weeks.

Opposition party leaders are calling for the resignation of the Prime Minister in response to the ruling of the Supreme Court. “I invite Boris Johnson, in the historic words, to ‘consider his position’,” said the leader of the Labour Party Jeremy Corbyn. The First Ministers of the devolved parliaments in Scotland and Wales are also calling for the Prime Minister to tender his resignation underpinning the seriousness of the situation. Even his own Conservative MPs are alarmed at the latest developments. Former Conservative Prime Minister John Major said Parliament should be recalled to receive Johnson’s “unreserved apology”. “No prime minister must ever treat the monarch or parliament in this way again”.

The concern for Hong Kong traders now is that the Supreme Court decision plunges the departure of the UK from the EU into even more uncertainty. The departure date remains 31 October but legislation passed by Parliament directly prior to its prorogation obliges the Prime Minister to seek an extension until 31 January 2020 unless a withdrawal agreement, or a no-deal Brexit, is approved by Parliament by 19 October. Prime Minister Boris Johnson now faces a hostile Parliament which will reconvene weeks ahead of schedule and an unwavering EU which says his proposals remain unsatisfactory for any deal to be made.

The Prime Minister stated that he will respect the judgement of the Supreme Court but that he strongly disagrees with it and is still determined to deliver Brexit. In a speech in New York, he said that the Supreme Court decision will make it harder for the UK to leave the EU with a deal but that “[a]s the law currently stands the UK leaves the EU on 31 October, come what may.” Johnson claimed that MPs were trying to frustrate Brexit stating that “[t]here are a lot of people who basically want to stop this country from coming out of the EU … we have a parliament that is unable to be prorogued, it doesn’t want to have an election, and I think it’s time we took this forward.”

Johnson also signalled his desire to prorogue Parliament for a second time. The Supreme Court decision does not remove the power of the Prime Minister to suspend Parliament but it does restrict it. This means that while Johnson would not be able to declare a lengthy suspension for a second time without effectively being in contempt of court, the judgement does allow for a normal prorogation of Parliament – one that would last for a far shorter period than five weeks.

However, the Speaker of the House, John Bercow, has announced that Parliament will resume on Wednesday 25 September. Bercow has stated that he will allow MPs to use parliamentary procedure to table motions calling for emergency debates and it is likely opposition MPs will attempt to use these to pass motions or laws preventing Boris Johnson from trying to prorogue parliament again. In a speech on Tuesday evening at a Labour Party conference, Jeremy Corbyn announced that Parliament would resume to hold the government to account and said that the only way to solve the current impasse was with a general election. However, Corbyn added that an “election needs to take place as soon as this government’s threat of a disastrous no deal is taken off the table.”

In short, Hong Kong traders will note that the Prime Minister’s attempt to prorogue Parliament for five weeks has failed. However, Johnson remains resolute in his mission to deliver on Brexit by 31 October, deal or no deal, even if opposition MPs are just as determined to stop him.