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Boris Johnson (Getty Images)
Boris Johnson (Getty Images)

PoliticsSeptember 25, 2019

Boris Johnson’s historic Supreme Court defeat, explained

Boris Johnson (Getty Images)
Boris Johnson (Getty Images)

Britain’s supreme court has unanimously slapped down Prime Minister Boris Johnson’s suspension of parliament. It’s just the latest in the disaster zone that is UK politics, and Tony Burton reckons New Zealanders have good cause to feel smug.

Just when you thought Brexit could not get more weird, it did. It is hard to exaggerate the importance of the UK Supreme Court’s decision. The main take away for a New Zealander should be smugness. It could happen here, but we are just better at democracy, so it probably won’t.

Here are some questions about the latest ruling answered (with huge thanks to Dean Knight, professor of law at Victoria University of Wellington who is currently at the London School of Economics).

What just happened on Brexit?

Britain’s Supreme Court decided that Boris Johnson, Britain’s Prime Minister, acted illegally when he advised the Queen to prorogue Parliament. But this is not just about the law. He has done it in a way that will probably delay Brexit further, possibly undermine the monarchy and will likely to annoy even the conservatives that supported him before.

What is proroguing?

When parliament is prorogued it has to shut down. This is not the same as taking a “recess” which is just what you and I call a holiday. The constitutional difference is that the parliament is still functioning in a recess, it is just there are no sessions in the debating chamber. When parliament is prorogued it is no longer functioning. Crucially the prime minister, not parliament, decides when it is prorogued.

In truth, most of the time since the 1640s proroguing was a dull process for getting the monarch to dress up and take her finest horse-drawn carriage to parliament. The New Zealand parliament can be prorogued but rarely is. The last time it happened was 1991 and that was because politicians were on holiday, so proroguing was the only procedure to let them have a timely debate on the Gulf War. Like I said, dull.

Why is this proroguing not so dull?


The British parliament is in a mess. Though a referendum result showed slightly more than half the population wanted Brexit, the majority of people in parliament do not. Worse, those that want Brexit are not sure what kind of Brexit they want. This is where New Zealanders should feel really, really smug. MMP means our politicians are much better at working their way through these kinds of deadlocks (and as someone who has worked in both systems, one of the pleasures of working in New Zealand is that our ministers are just better at the job than their British equivalents).

In April this year, Britain’s then prime minister Theresa May was given a six-month extension to do her homework on Brexit. As anyone who has had an essay deadline extended will know, it is surprising how quickly that extra time disappears. First, Theresa May had to resign, then the Conservative Party had to elect a new leader and then parliament went into its summer recess. All that ate up four of those six months.

Then just before parliament restarted, the new prime minister Boris Johnson told them Britain would leave the EU by the deadline, “do or die” (i.e. whatever parliament wanted). And, by the way, parliament would be prorogued for five of the remaining weeks before the Brexit deadline.

David Davis, Boris Johnson and Theresa May, in happier times. (Getty Images)

What was the court case?

The legal details are hard, but the principle is easy enough. The government said that prorogation is what prime ministers do, so what’s the fuss? Those bringing the court case, who include people from Boris Johnson’s Conservative Party, said he was being sneaky and this is not what prorogation is for.

To be slightly technical, both agreed the British prime minister was within his right to prorogue parliament. What they disagreed about was whether or not this particular decision was a proper use of the process. To be less abstract, imagine an official whose job involves deciding which restaurants get a liquor license – that official is not allowed to refuse one to a restaurant run by a Jehovah’s Witness just because he dislikes their religion (this happened in Quebec in the 1940s and the Jehovah’s Witness won the case).

Britain has different legal systems in England, Scotland and Northern Ireland, so the case went through all three systems. The prime minister lost in Scotland but not in the other two, so the case went to the Supreme Court. They took it very seriously, appointing a panel of eleven judges who were known to have a variety of legal perspectives. The presiding judge was Lady Hale, who looks like that really nice auntie who bakes cakes just as you like them. It is fair to say that if you asked Lady Hale for a cake you would probably regret it.

So what was the result?

Most people expected there would a split decision, whichever way it went. And even if it ruled against the government there would be some leeway about what to do next.

But the result was a slam dunk, in your face beating for Boris Johnson. If this had been the 1640s then Johnson’s severed head would be decorating the battlements of the Tower of London. The BBC tends to be pretty reserved about these things, but even they said: “The court ruled it was impossible to conclude there had been any reason –
let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks”.

All eleven judges said he was in the wrong. They said the proroguing of parliament was “unlawful, void and of no effect” so it has to meet again ASAP. They told him he was a very naughty boy and should sit in the corner until he could say sorry properly (not in those words, but the sentiment was there).

It is fair to say no one was predicting the Supreme Court’s ruling to be this strong. People are stumbling over themselves to find historical comparisons in a country whose parliamentary history predates Māori settlement of New Zealand. There is simply no New Zealand equivalent. Politically, it would be like Jacinda Ardern being told by our Supreme Court that the law setting up child poverty targets was an abuse of process.

Does this matter?

Oh yes.

There are probably three big effects. First, that end of October deadline for leaving the EU is now looking increasingly unlikely, at least if Britain has any say in it. The EU itself has gone very quiet. Bear in mind that for the deadline to be extended, Britain needs the EU’s permission, and since they have now given two extensions they are under no obligation to agree to yet another one.

Second, this has made a fireworks display of Britain’s unwritten constitution. The court has ruled on something that many thought it would not rule on. Parliament has now shifted the balance of power towards itself and away from the executive. The vulnerability of the Queen’s position has been made painfully clear.

Finally, Boris Johnson has no majority in a hostile parliament, a key decision has been declared illegal, and his preferred course of action has been repeatedly rejected. He may or may not resign, but he has so far not found a means of propulsion in the stream of effluent he is currently floating in.

The happiest person in Westminster is probably Theresa May, who was given three years of hell over Brexit by Boris Johnson. I expect her to have a little chuckle while sipping a celebratory cup of cocoa tonight.

Any last thoughts?

Professor Dean Knight points out that the strength of unwritten constitutions is that different institutions act like an ecosystem in a storm. There is some damage but their resilience is due to having weathered previous constitutional crises. The result is a slightly different system more suited for changed circumstances. More particularly, the current UK crisis is no worse than other crises that can be read about in history books – say, the events of 1910 over reforming the House of Lords and Irish self-rule. This is just another example of this process.

This show is not over yet. Strap yourself in, it’s going to be a bumpy ride.

Keep going!