Wednesday, October 23, 2019

"The Supreme Court ruled that the powers of the government were limited by the sovereignty of Parliament"

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Joelle Grogan, a law professor at Middlesex London University, reacts to the Supreme Court's decision to overturn Boris Johnson's prorogation of parliament.

Time to Reading 4 min.

Opponents of Brexit, September 24 before the Supreme Court in London. Matt Dunham / AP

The British Supreme Court unanimously ruled Tuesday the suspension of parliament by Boris Johnson, a spectacular decision and a major defeat for the prime minister, which has since been the subject of numerous calls for resignation. "No one, not even the prime minister, is above the law," welcomes Joelle Grogan, a law professor at Middlesex London University, who answers questions from World.

What is the scope of the Supreme Court's judgment?

It's an earthquake. The eleven most important judges in the country decided, unanimously, that the powers of the government were limited by the sovereignty of Parliament, and by its duty to explain (Accountability) to Parliament. It is an incredible decision that impacts the balance of power between the executive, the legislature and the judiciary. This places Parliament at the heart of our Constitution. The judges said no one was more powerful than Parliament, but they would always be there to support it, that they would not be neutral.

Read also Brexit: British Supreme Court inflicts a setback on Boris Johnson

Among the constitutionalists and legal experts who followed the Supreme Court hearings, no one expected the decision to go so far. Not only has the Supreme Court ruled that prorogation was illegal, but it cancels it, which is unexpected.

Is not it logical? If the extension is illegal, it seems normal that it be canceled …

"Judges were much more determined than expected"

Traditionally, justice has shown some deference to the separation of powers. It was hard to imagine the judges ordering another institutional body to follow suit. Between constitutionalists, it was thought that the judgment would be tight and that, perhaps, the Supreme Court would decide to declare the prorogation illegal, but that it would then let Parliament or the government decide the conclusions to be drawn. Instead, unanimously, the judges stated that the piece of paper ordering the prorogation was null, that it was no more than a "blank sheet", that it never took place. They were much more determined than expected.

The British Parliament, nicknamed the "mother of parliaments", was it not already at the heart of the British Constitution?

Until now, Parliament was considered sovereign, but in a narrow sense, to make and discuss laws. This time, the Supreme Court justices upheld two fundamental arguments: not only that Parliament is sovereign, but also that the government must explain itself to Parliament ("Must be accountable"). All of a sudden, the sovereignty of Parliament extends to a much broader field, including its debates, parliamentary committees, questions to the government …

Gina Miller, September 24 before the Supreme Court, London.
Gina Miller, September 24 before the Supreme Court, London. Frank Augstein / AP

Beyond the political crisis, which is obvious, Brexit also seems to provoke a deep legal and constitutional debate. Why ?

Three years ago, when Gina Miller won her battle in the Supreme Court – which required the government to have Parliament vote on the Brexit agreement – I told my students: "You will never see such an important decision in your life again. " And now, three years later, a new essential judgment, even more important, is made. Brexit forces one to clarify where power really lies, asks deep constitutional questions.

Read also Brexit: Parliament suspension is illegal, John Bercow calls to sit as early as Wednesday

Does this judgment weaken the role of the queen?

The queen has been placed in a very uncomfortable position. She does not take a political position, nobody knows what she thinks politically. But what she did, by proroguing Parliament at the request of the government, was decreed by the Supreme Court. Nevertheless, future debates will focus on how the government will react, not really on the role of the Queen, who has only followed the orders of the government.

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This judgment has led to calls for the United Kingdom to adopt a written constitution, rather than using only the constitutional tradition, as is the case now. Are you for?

What is certain is that with the current political crisis, this is not the time to write a written Constitution. There are too many disagreements and tensions to do it calmly. Moreover, even countries that have written Constitutions need constitutional courts, judicial intervention, and there may be tensions between the powers. But it is true that there are good arguments in both directions, for or against a written Constitution. Had there been specific rules on the use of extension, the current problem would not have occurred.

Was the Supreme Court right in making that judgment?

From my point of view, his decision was correct. In the end, the question boils down to a fundamental principle: no one, not even the prime minister, is above the law. We have just seen this principle again put into practice.

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