The Round-Up: Prorogation Declared ‘Unlawful’

24 September 2019 by Alethea Redfern

The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void. 

The full judgment and the summary judgment are available and can be downloaded from the Supreme Court website. Lady Hale’s summary judgement is also widely available to watch in full. 

For those with still less time, The Guardian has summarised the six key paragraphs as follows.

First, the court emphasised that the judgement was not about when and on what terms the United Kingdom is to leave the European Union, but only concerned the question of whether the advice given to the Queen was lawful. Second, the court unanimously held that the matter was justiciable, saying this has been established ‘for centuries’ and citing a ruling from 1611: ‘The king hath no prerogative but that which the law of the land allows him’. Third, the view this prorogation was ‘routine’ or ‘actually quite boring,’ espoused by Jacob Rees Mogg, among others, didn’t stand up to scrutiny. The court considered that this prorogation took place in exceptional circumstances and had an ‘extreme’ effect on the fundamentals of our democracy. Fourth, Boris Johnson’s advice to the Queen was unlawful. Fifth, and in consequence, the prorogation was also void and of no effect. The order purporting to make that happen was of no more legal effect than a ‘blank sheet of paper’. Finally, the court called on ‘parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next’. 

It should come as no surprise that John Bercow wasted no time following Lady Hale’s direction. In a statement on College Green, Bercow said that MPs should reconvene ‘without delay’ and the House of Commons would sit from 11.30am on Wednesday. He had earlier described the judgment as ‘[vindicating] the right and duty of parliament’.

The Guardian has responded with laudatory profiles of Gina Miller and Lady Hale, and a full 500-word article on the president of the Supreme Court being ‘the latest powerful woman to use a brooch to make a coded statement’. Writing in The Telegraph, Camilla Tominey decided instead to make ‘the bespectacled President of the Justices’ sound like a pantomime villain, ‘dressed ominously in black, decorated with a giant silver spider brooch’, eliciting ‘an audible gasp’ from the wood-panelled courtroom as she lays down her terrible doom. Instead of ‘She’s behind you!’ Tominey has a single plucky voice in the crowd outside the Supreme Court cry out ‘Betrayal!’ — stirring stuff indeed. On a more serious note, other commentary in the same paper declared ‘a full-blown constitutional crisis’  and criticised the Supreme Court for siding with ‘usurping Remainers over the people’ and ‘colluding with a foreign power’. 

The political response has been diverse. Adam Price, leader of Plaid Cymru, and Ian Blackford, leader of the SNP in Westminster, called for Boris Johnson’s immediate resignation as Prime Minister. This demand was echoed by senior Labour MPs including Jeremy Corbyn, Tom Watson and Angela Eagle. In contrast, Brexit Party leader Nigel Farage directed his criticism towards Mr Johnson’s chief advisor, Dominic Cummings. In an indication of just how strange times have become, Farage’s sentiment was shared by key Tory rebel David Gauke. Asked if Boris Johnson should resign over the Supreme Court ruling the Taoiseach, Leo Varadkar responded ‘absolutely not’. Speaking ahead of the ruling, Boris Johnson indicated he had no intention of resigning and asked critics: ‘Donnez moi un break’.

It seems unlikely Johnson will get his wish; it remains to be seen whether he can keep his word. 

In Other News

The figures published by the Crown Prosecution service earlier this month, which show that the number of convictions for rape fell to a record low of 1,925 in 2018-19, despite a record high of 58,000 allegations, have been met with a varied response. Speaking to The Times, the victim’s commissioner Dame Vera Baird QC ascribed responsibility to the CPS’s ineptitude and risk-aversion in the wake of the scandal over the botched case of Liam Allan, then 22, who was wrongly accused of rape and spent two years on bail. Arguably, the extensive media coverage of statistically infrequent ‘false allegation cases’ has contributed to the crisis.

In the same paper, the Secret Barrister noted the same factor, observing that ‘the CPS now often “front-loads” the disclosure exercise, completing it before, not after, someone has been charged’ to avoid trials collapsing. Ultimately, however, the Secret Barrister emphasised that ‘the main cause of the denial of justice to victims [is the] chronic under-resourcing of our criminal justice system’.

The Guardian’s coverage has been deeply critical of the pressure the CPS places on victims to divulge their personal mobile phone data as part of this ‘front-loading’ approach. The paper cited in particular a case in which the CPS refused to bring charges in a case of rape of a 12-year-old child unless his phone was submitted for investigation, despite the fact that the perpetrator had confessed the rape to the police. Ministers have said that the government will allocate an extra £5 million for specialist support services to help victims of rape and sexual assault; Dame Baird welcomed the funding but insists that more needs to be done. 

Writing in the Guardian, Josh Halliday reports that an Ethiopian asylum seeker named Kelemua Mulat has died after being denied potentially life-saving cancer treatment for six weeks amid confusion about whether she should be charged by the NHS. The 39 year old mother of one told the paper in June last year that she felt she had been ‘left to die’ by the government. Her lawyer, Jeremy Bloom, said Ms Mulat’s death showed the ‘real and sickening human cost’ of the government’s hostile environment strategy, which forces the NHS to impose upfront charges on migrants deemed ineligible for free care, is strongly opposed by Britain’s doctors, and has so far resulted in hundreds of patients being denied treatment for serious health problems. 

The Guardian reports on an employment tribunal decision against the Ministry of Defence in July, which found that two former paratroopers were subjected to racial harassment and a ‘degrading, humiliating and offence environment’ during their time in the army. In his written judgement, the employment judge Richard Baty accepted Nkulueko Zulu and Hani Gue’s claims that the MoD failed to take reasonable steps to prevent discrimination and harassment against them. A statement by the MoD acknowledged the decision and asserting that, ‘as a modern and inclusive employer,’ any allegations of inappropriate behaviour would be ‘taken extremely seriously and investigated thoroughly’.

In the latest in a line of widely reported cases concerning the right to choose the manner and timing of one’s own death, 80-year-old widow Mavis Ecclestone has been cleared of the murder and manslaughter her terminally ill husband of 60 years. Mrs Ecclestone and her husband, a former miner in the end stages of bowel cancer, had agreed to take a lethal cocktail of drugs and end their lives together in their home in Staffordshire. Tony Badenoch, QC, for the prosecution, had said that ‘mercy killing’ was against the law and not a defence, arguing that the court was ‘not the place to resolve the issue of assisted dying’. After the verdict, the couple’s daughter, Joy Munns, called for the law on assisted dying to be reformed, stating that her father would have been ‘devastated at the thought of his beloved wife waiting to find out if, at the age of 80, she would face a life sentence in prison simply for respecting his wishes’ and ‘heartbroken if he had known his wife and family would have had to endure 18 months of extreme anxiety and distress.’

Writing in The Times, The Guardian and The Telegraph, reporters from across the political spectrum gave Mrs Ecclestone sympathetic coverage, reflecting a considerable change in wider attitudes towards physician assisted suicide and so-called mercy killing in recent years. 

In the Courts

JB (Capacity: Consent To Sexual Relations And Contact With Others) [2019] EWCOP 39 (17 September 2019): A recent interesting case in the Court of Protection concerned the capacity of JB, a thirty six year old man with a complex diagnosis of autism combined with impaired cognition, to consent to sexual relations and contact with others. JB’s comprehensive care plan restricted his ability to socialise freely, primarily to prevent him from behaving in a sexually inappropriate manner towards women. On the one hand, Mrs Justice Roberts considered JB’s keen desire to develop and maintain a relationship, as well as his belief that the restrictions were an unfair and unwarranted interference with his rights to a private and family life.

On the other, assisted by submissions by Mr Sachdeva QC for the local authority, she considered the possibility that JB’s behaviour, if unrestrained, might result in his exposure to the criminal justice system and represent a risk to potentially vulnerable women.

In considering JB’s capacity and the risk of exposure, Mrs Justice Roberts made reference to Mostyn J’s distinction in D Borough Council v B [2011] EWHC 101 (Fam), [2012] Fam 36, [2011] 2 FLR 72, between ‘the teaching of what is right and wrong in the pursuit of sex, and what level of understanding and intelligence is needed to be capable of consenting to it’, the latter being the applicable standard. She also clarified that the information relevant to determining an individual’s capacity under s3(1) of the MCA 2005 does not include an understanding that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law.

In considering JB’s risk of criminally offending, Mrs Justice Roberts reiterated the assessment of Munby J in Re MM (An Adult) [2007] EWHC 2003 (Fam) that the emphasis must be on sensible risk appraisal in order to achieve a vulnerable person’s happiness, since ‘making someone safer’ could hardly be considered a worthwhile achievement ‘if it merely makes them miserable’. 

One Crown Office Row’s Clodagh Bradley QC was instructed to act on behalf of the family of Owen Carey at the inquest into his death shortly after his eighteenth birthday. Carey suffered an anaphylactic reaction after eating a grilled chicken breast from Byron Burger which had been marinated in buttermilk. In her written conclusion, assistant coroner Briony Ballard ruled that Mr Carey had been misled by a ‘reassuring’ menu which made ‘no reference to any marinade or potential allergenic ingredient’, and that staff had failed to inform Mr Carey of the risk despite having been made aware of his allergies. Mr Carey’s family have called for a change in the law on allergen labelling in restaurants, echoing the family of teenager Natasha Ednan-Laperouse, whose death as a result of an allergic reaction to a Pret baguette led to the introduction of new laws requiring food business to include full ingredient labelling on pre-packaged foods. The high profile and untimely deaths have shifted public perception of the responsibility restaurants and food businesses owe those customers fatally vulnerable to anaphylaxis. 

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