Yes Boris Johnson, it turns out, unlawfully prorogued Parliament. But the BBC misled its viewers on what the Supreme Court really ruled.25 September 2019
Its reporter claimed the court had ruled that the government’s actions were “designed” to prevent Parliament carrying out its constitutional duties. That would mean the Court alleged there was a deliberate effort by Prime Minister Boris Johnson or his government not only to act unconstitutionally and illegally, but also to mislead the Queen.
In fact the Court did not rule as to the government’s intentions. What it said was that the “effect” of its actions was to impede Parliament’s legitimate role.
If the prime minister or the government’s actions had been “designed” to do so, it would have been explosive – even more politically and legally damaging to Johnson and his legal advisers. They could have been brought to court for personal culpability, where intent would have been the crucial factor in any prosecution.
Any such ruling of intent by the Supreme Court would also have made calls for Johnson to resign as Prime Minister far more cogent, and probably irresistible.
The misleading report would not have come about if the BBC had used its legal correspondent to explain the ruling, rather than a political reporter.
There is too much instant punditry on all live coverage, but it should be much more carefully marshalled by the national broadcaster.
The Supreme Court did not need to rule on this point, as it argued that the “effect” not the intention, was the crucial issue.
It is still quite possible that Johnson may have deliberately tried to “stymie” Parliament – the term used by the Scottish court whose judgement was being appealed against by the Government.
Then too the media in general have misunderstood how the law works. A supreme court can “develop” the law, and the legal advice given to Johnson could legitimately have been based on how the law appeared to be, and that may have been accurate at the time – until the Supreme Court, by stating it can intervene in such circumstances, in effect changed the law.
And the move by Johnson and his government to prorogue Parliament for five weeks may have been politically very unwise, giving fuel to his opponents when he could have “played” a sitting Parliament to his advantage as he negotiated with the European Union.
The court also ruled that even a move that in effect denied Parliament its constitutional role could be lawful if their was “reasonable justification” for it. Where Johnson’s lawyers had failed was not to bring any evidence that there was such justification.
In other words, at the Supreme Court the government’s lawyers, perhaps arrogantly, unwisely rested their case on their main argument – that the courts had no right to interfere in what was basically a decision the government had a constitutional right to make unchallenged.
The lawyers should have had a fall-back, for example explaining that the government was in fact providing enough time for Parliament to deal properly with the Brexit issue.
In fact the speed with which it passed a law trying to prevent a no-deal Brexit could itself have been evidence against Parliament. It could have been seen as showing that, after a Queen’s Speech on October 16 and the European Union summit the next day, Parliament did have enough time to respond to any offered deal or no-deal.