The Supreme Court judgement: Bad news for Her Majesty

The learned but reclusive 'IS' was caught unawares this week. The Supreme Court judgement saying that prorogation was unlawful came as quick a shock - so much so that he dropped his Diamond Jubilee Commemoration mug. While picking up the pieces he came to reflect that that in fact the judgement might be equally calamitous long term for the monarchy itself.

Tuesday’s Supreme Court judgement – with the surprising 11-0 unanimous verdict on both issues – concluded that the government had behaved unlawfully in proroguing Parliament; this inevitably triggered a series of headlines hostile to Prime Minister Johnson. Unwelcome though the criticism may have been to the government, it is actually the Monarchy upon whom the judges’ verdict will have the most profound long term impact.

The UK has evolved an uncodified constitution: part written (such as statute law) and part unwritten (such as well established conventions). The Monarch as the Sovereign sits at the apex. Students of British politics invariably start their course by analysing the UK constitution; they are informed that one myth that they quickly need to dispel is that the Monarch has no power and that the role of the Sovereign is solely ceremonial. The Queen in fact retains considerable powers in her role as a constitutional backstop, but these powers are latent and well hidden for they are rarely, if ever, called upon. But they exist for good reason: to stop an abuse of power by the executive or legislature.

In his campaign to secure Brexit, Boris Johnson decided that it would be a good strategic move to prorogue Parliament. This is not an unusual move for a PM to make – indeed one of Johnson’s sharpest critics, Sir John Major, prorogued Parliament back in 1997. In the febrile atmosphere prevailing at Westminster, however, Johnson’s move provoked a hostile backlash, momentarily uniting all Opposition parties opposed to a 31^st October ‘No Deal’ Brexit. With the assistance of Speaker Bercow, what has now become known as the Benn Act was rushed through Parliament to rule out a ‘No Deal’ Brexit; with the benefit of hindsight Johnson might ruefully conclude that prorogation was a battle that did not need to be fought.

Sky News revealed on Tuesday evening that the Attorney General’s advice to the Prime Minister was that the prorogation was legal and hence the decision to seek the Queen’s approval. One can assume that Her Majesty at the same time was guided by the advice and counsel of her constitutional and legal experts who arrived at the same conclusion: the prorogation could be described as parliamentary sharp practice as it was evidently aimed at restricting debate in Parliament concerning a No Deal Brexit but the move did not breach legal boundaries. The Queen at Balmoral, on receiving that advice, gave her signature to authorise the prorogation.

Many commentators have written that the Queen had no choice but to acquiesce; not so, for that conclusion is grounded in the view that the Monarch’s role is purely ceremonial. The Queen is the most experienced political operator in her kingdom: she has dealt directly with fourteen out of the fifteen post war Prime Ministers, starting with Winston Churchill on her accession back in 1952. Assiduous in her daily perusal of her red boxes, having lived through momentous events such as the Suez Crisis, the three day week, the Falklands conflict, the Miners’ strike, the banking crisis and so on, there can scarcely be a political event that can surprise or disturb her regal equanimity.

If the royal constitutional lawyers had advised that the Prime Minister was engaging in an unlawful activity, is it conceivable that the Queen would have rejected such advice and felt compelled to sign the prorogation? As the constitutional backstop, it is incumbent on the Monarch to step in to prevent an abuse of power.

And it is surely the case that when Sovereign adds her signature then that document has acquired legal status – as with all Acts of Parliament which become law when they receive royal assent.

The Supreme Court, an unelected and unaccountable body, subsequently overturns the previous High Court ruling by declaring that the prorogation of Parliament is unlawful. One does not have to question that judgement to conclude that this unprecedented decision, whether by accident or design, is taking some important prerogative powers away from the Monarchy.

Historians will be able to chart the growing influence of the judiciary since the Supreme Court’s inception in 2009 as part of the Blair government’s constitutional reforms. Judges have become more assertive, particularly in the area of judicial review, and this latest ruling is its most significant to date. ‘Have Judges become too powerful?’ is likely to remain a frequent question on Government & Politics examination papers.

It certainly appears that the UK Supreme Court is in some respects beginning to mirror its namesake in the USA in being prepared to intervene in areas that might have been previously regarded as the preserve of politicians. In the USA the 1803 case of Marbury v Madison established that the Supreme Court did indeed have the right to act as the guardian: to interpret the codified constitution and thereby ensure that the actions of the executive and legislature remained lawful.

The current constitutional crisis and Parliamentary impasse over Brexit may lead to a growing clamour that the UK likewise requires a codified constitution fit for the 21^st century.

And a codified constitution, clearly laying out the functions of each of the three branches of government, is unlikely to require a constitutional role for the Monarch. So the Monarchy does retract into having only a ceremonial role. As the 21^st century unfolds that could lead to a rising volume of opinion asking whether the Monarchy is becoming an expensive luxury which the country does not wish to afford. Princes Charles, William and George: be warned!