Guest post by Lady Hale of the Supreme Court

It seems then that the Supreme Court has decided - as was anticipated - that the porogation of parliament by Boris Johnson was illegal, null and void.  Much has been made of the fact that this was a unanimous 11-0 decision.  But is this really such a suprise? Time and again during the TV coverage the Judges asked the Government why they put forward no proper witness statements and one has to ask yes ... why?  The only answers I can come up with are that the Prime Minister is just intelligent enough not to perjure himself or worse to bring further condemnation by being accused of lying to or misleading the Court.  Also the Government has been doing everything it can to avoid answering the question "how and why was this decision taken?"  In short it literally put up no defence.

Perhaps the Cabinet Office knew by the point that it reached the Supreme Court that the Government goose was already cooked but the Judges seemed offended that the Government hadn't even bothered to mount a proper defence.  In this situation then the Court could only conclude that...

No justification for taking action with such an extreme effect has been put before the court. The only evidence of why it was taken is the memorandum from Nikki da Costa of 15th August.

This explains why holding the Queen’s Speech to open a new session of Parliament on 14th October would be desirable. It does not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. It does not discuss the difference between prorogation and recess. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.

The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

Johnson simply says he profoundly disagrees with Judges, uses the need for a Queen's speech to try to justify the 5 week porogation when the Judges say there is no excuse and tries to pretend that he thought that like He-man he "had the power..."

Acutally the boundaries of executive power have been open to various forms of "Judicial Review" for centuries.  The main modern precedent by which the judiciary may over-rule the government is known as Wednesbury Reasonableness.

This is the Wednesbury Gaumont (later ODEON later Ladbrokes Bingo) picture house ...

In 1932 the Government passed the "Sunday Entertainments Acts" - this allowed for the opening of Cinemas on a Sunday.  However, the local authority were not up for Sunday Cinema so they inserted a clause into the cinema Licence that "no children under the age of fifteen years shall be admitted to any entertainments whether accompanied by adult or not"... in an attempt to allow the Cinema to open but only in such a way as to be painfully uncommercial.  This resulted in an epic legal battle which became known as

ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED
v. WEDNESBURY CORPORATION.

To cut a long story short to everyone's astonishment the Picture House won...

Other bounds on executive power were set by Council of Civil Service Unions v Minister for the Civil Service when Mrs Thatcher got into an argument with the courts about banning unions at GCHQ.  Here are some memorable quotes from the judements in these two cases...

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.  

Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority
could ever have come to it. In such a case, again, I think the court can interfere.

The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.

 In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account"