"The Question arises in circumstances which have never arisen before, and are unlikely to arise again. It is a one-off."
So stated Lady Hale as she delivered the unanimous judgement of eleven senior judges: that Boris Johnson the Prime Minister had acted unlawfully in asking the Queen to prorogue Parliament, "stymieing" the crucial days afforded to it to perform its duties. The decision has sent shock-waves ricocheting through our political and legal institutions, for more reasons than one.
The Government had tried to argue that the prorogue, and the actions of the Prime Minister, were simply not justiciable. That the separation of powers means the judiciary must stay out of the running of the country. If this were permitted to be the case, the Prime Minister could become a sovereign-like entity, accountable to nobody. Our legal system would be unequipped to defend and safeguard the principle of democratic accountability upon which our modern understanding of the Rule of Law currently rests.
The Scottish Inner Court rejected the Government's claims, but in the Miller case heard in England Division Court (remember that? Feels like only yesterday) it had been decided that the Government was correct: that political manoeuvres are not justiciable by the legal system (in other words, the courts cannot decide what is politically permitted during the running of the country, and what is not. They must stay separate.) Parliament and Government make the laws; and the Judiciary carry it out.
For many years now, this latter approach has been the standard followed by England's lower and upper courts. Judges have, in recent history, been unwilling to risk it seeming like their powers extend into politics, perhaps in part for fear of losing what powers they currently have, however unfair and in breach of the Rule of Law this might be. Scotland however, famously has no such hang-ups about its right to self-governance and its own laws. Its devolution system is far more distinctive than that of Wales. Its people are historically unafraid of publicly demonstrating their independence and independent spirit. in both law and identity. Wales has not had a legal system distinct from England for centuries, if ever, and in judgments like this, it shows... but more on that, a little later.
Today marked a seemingly huge change in the attitudes of the UK Supreme Court.
The essential chain of reasoning behind why this situation persuaded the judges to preside over Boris Johnson's prorogue at all, is that that prorogation "unlawfully prevented Parliament from carrying out its proper function" of holding the Government accountable for its actions, thereby hindering Parliamentary sovereignty (ruling powers). The courts must prevent Parliament from losing its ability to exercise the democratic powers granted by the general public to achieve this. Allowing prorogation could allow the Government to set a precedent where it halts Parliament whenever it please, allowing it to act how it wishes... upsetting the balance of power, and the Rule of Law.
Delivering the judgement, Baroness Hale attempted to draw the line delineating the Separation of Powers as carefully as possible: the Supreme Court will only intervene and justice the Government so far as to "perform [the judiciary's] proper function under our constitution": judging the lawfulness of what the Government does (quoting Lord Diplock, para 33). This means ensuring that Parliament's ability to hold the Government to account is both protected and upheld by law passed by Parliaments past and present. The apparent circularity of this is a debate for another day. The point is, the Supreme Court judged in favour of the appeal "via English Proceedings" (p.1 of summary judgement) by an individual, Miller, and the Scottish appellant case, Cherry. The judgement is preventative and cautionary, rather than enabling and permissive, taking pains not to appear to extend the power of our judges. They weighed up whether Boris Johnson had "reasonable justification" to prorogue which outweighed the sheer gravity of what was at stake: our democratic institutions and the "extreme effect upon the fundamentals of our democracy" (Lady Hale, p.3 of Summary judgement). They declared that he did not. Not only that, but since they judged the prorogation was not a "proceeding in Parliament" (it was enforced upon Parliament, who had no say or vote on the matter) and actually is the complete opposite: it brings Parliamentary business to a complete halt.
At this moment, the prorogation became void - as though the ink proving its existence vanished, evaporated, from the legal pages. As though it had never existed. The Supreme Court wiped the slate clean, and passed the business of politics back to Parliament. The judgement didn't tell us what must happen next; only that whatever happens must be lawful, and that Parliament must be able to exercise its ability to hold the Brexit agreement-makers to account.
Has this changed our constitution? Lady Hale was keen to imply that it did not. That this was purely an emergency, and the Supreme Court simply erased the unlawful act via Judicial Review proceedings. However. It does draw a firm line between the power of a Prime Minister and the power of a monarch which, if Boris Johnson had acted lawfully according to the above political reasoning, would be almost non-existent otherwise. It doesn't lock our Prime Minister in jail, but he will come under fire from the Houses of Commons and Lords. It doesn't remove him from office, but he may be placed under considerable pressure to resign under the convention of ministerial accountability. And it does signify a potentially momentous, emboldened change in both the stance of the judiciary, and the devolved courts. They will exercise their protective powers in the interests of democracy, and to preserve the balance of power, when they must.
The Constitution, Wales and Devolution.
This won't be the only article we write on this judgement and its dramatic repercussions. However, for now it suffices to observe a few things about our current system - what the judgement say about some of our constitutional conventions, and our levels of legal independence in Wales.
You may have noticed that multiple times, the terms "English legal system" and "English legal processes" are used to describe the procedures followed by Miller. Herself based in England, this might not seem surprising... until you remember that it's not meant to be the English legal system. It's meant to be the legal system of "England and Wales".
Let us contrast Scotland and Wales' Parliamentary and Legal systems.
Scotland is able to enact primary laws (Acts of the Scottish Parliament) within its devolved areas of law which are far more wide-ranging than those of Wales. Legally, Scotland cannot pass laws which extend beyond its devolved powers, and/or which affect the law of another part of the UK. Scotland has its own legal system, along with its own authoritative court - the Scottish Court of Session (the one which passed this big devolution issue to the Supreme Court in London.) On a daily basis the current Secretary of State acts as the link between ALL devolved nations, and Westminster. That's a big job for one person. The Sewel Convention is a deeply respected traditional agreement, which means central Parliament have promised not to legislate for Scotland on a devolved matter, even if they legally can do so. Politically speaking, it should be, intentionally, extremely difficult to break that promise. Pulling the entirety of the UK (and therefore also Scotland) out of the EU is legal. However, as Scotland has long been in control of certain areas of law, such as its taxes on imports, any trade deals made or lost by Central Government can be seen to indirectly infringe upon Scotland's ability to self-govern, and to protect its interests. The appeal process we have witnessed in action today is crucial if this risk is to be minimised, and equality is to prevail.
Furthermore, Scotland has never been afraid to fight for its best interests on the private and public stage. Nor has it ever definitively accepted full Parliamentary sovereignty (at least not willingly), prior to the Union with Scotland Act 1706. You can see this undercurrent fanning the flames of Scotland's passion to protect its identity, interests, values, and independence. The strength of its voice is impossible to ignore; its initiative and readiness to act, is game changing. Its legal and political thought can go toe to toe with England's, and win.
Wales... has less impact. The Welsh Government intervened in the hearing at the Supreme Court as a interested party, who will have submitted evidence for the judges to take into account in coming to their decision.
And that's it.
Of course, the legal system of England and Wales is more in-depth than this article will allow, and we'll cover it elsewhere. Suffice to say today that, from the judgement, you almost couldn't tell that England and Wales are separate countries,who share one judicial system. (which in other circumstances could be a great partnership). This pretty much sums up the discontent that Wales is feeling right now. Wales too has a devolution arrangement, but has been perceived as synonymous with England since the Act of Union 1536. Wales had been conquered, and the indigenous princes of Wales, long since fallen.
The most recent edits to the Welsh devolution system accords more power to Wales to legislate in certain areas, but these powers are not as wide as Scotland's. Most notably for this article, Wales has no distinct legal system of its own. No Welsh Court of Session, or any such thing. We share with England, largely invisible. Our invisibility fans the flames of discontent burning swiftly brighter: the same flames which have spurred thousands to the streets to demand a dramatic exit from the United Kingdom itself. How could a nation be expected to stay silent much longer, when its patriotism is sung choir to choir across the hills and rugby grounds of Wales? Or, when this sense of self has been challenged by its imposed invisibility, and yet has played a big part of sustaining its people through crippling poverty which plagues so many parts of the country?
It could have been argued that Wales doesn't need its own courts as it doesn't have its own historic legal system, distinct like Scotland. This must be rebutted on two counts if equality within the Union is to be developed and Wales is to be treated fairly, and if its interests are to be properly protected in future. So too if Wales is to be allowed to strengthen itself economically, and if its people and identity shall flourish. Firstly, our devolution, although limited, has now technically granted us the ability to make laws for ourselves... even if not officially so. This means that over the last few decades or so Wales has, in fact, begun to create its own unique set of laws (consider, for example, the Wales Housing Act of 2014). This includes in areas such as Agriculture, which still makes up the income of a large percentage of Wales. Pulling Wales out of the EU puts Wales in particular jeopardy; it risks forcibly depriving guaranteed income from large swathes of Wales' population, without being afforded the kind of visible, immutable voice to defend its interests with the same tenacity that Scotland does. Secondly, since distinct laws are the natural result of a devolved jurisdiction, and since Wales can only be an equal member of the UK if we make it a true Union which is prosperous for all, Wales should have the capability to defend its legal interests to an extent equal to the capabilities of Scotland and Northern Ireland... or least a vocal legal power which is proportionate to the fast-developing legal system unique to Wales.
That's the difference between making a submission, and the ability to launch a formal legal appeal on behalf of one's own nation.