They fought the law. The law won.

The government pursued an extreme strategy; it could only expect an extreme reaction.

Liam Mikhail OConnor
5 min readSep 25, 2019

“The system has hit back.”

That was the assessment of former Supreme Court Justice Jonathan Sumption in response to the Court’s extraordinary ruling over the prorogation of Parliament. By a unanimous verdict the Court ruled that the Government had acted unlawfully by suspending the legislature for five weeks.

Amid the hyperbolic, at times febrile reaction to the ruling, it is worth going back and looking at the decision a little more closely, and wondering just how extraordinary it really was.

The President of the Court, Lady Hale, made it clear that the ruling had nothing to do with the date or the terms on which Britain leaves the European Union. The court was not being asked about that, nor should it have been, since that is a political matter. It was being asked whether it was constitutional for a government to suspend Parliament for such a long period, far longer than convention normally requires, before a Queen’s Speech, at a time when a major constitutional issue was being debated.

Their answer was unanimous, and emphatic: No.

In the ruling, the 11 justices said that the Government had presented nothing of substance to justify its decision, and that therefore the prorogation was null and void. In one of the most striking phrases, Lady Hale told the court that when the Royal Commissioners walked into the House of Lords with the prorogation order, it was as if they walked in “with a blank piece of paper”.

No one, not even those who brought the case in question, could have anticipated such a devastating and clear-cut ruling. But it perhaps underlined the seriousness with which the Court took the decision of the Government to suspend Parliament for so long. However in a country where we have no written constitution, and which therefore relies so heavily on convention and tradition, perhaps it was less surprising than it sounded at the time.

The Court must have anticipated the dangerous precedent this prorogation could have set for future governments. What would be to stop a future government deciding that a meddlesome Parliament could simply be suspended? This ruling represents the creation of a new law, one by which the Court has injected itself into the decision of prorogation, and can in the future rule on whether such a decision is lawful or not. But that new law helped to reestablish an old and important convention: Parliament is sovereign, and ministers must answer to it.

There is a great deal of self-congratulatory talk in Britain of the long history of Parliamentary democracy in this country, as if we are the only worthy modern descendants of the Athenians. It’s certainly true that, compared to the experience of many countries – even today – we have evolved rather resilient institutions that have, in general, protected us from outright tyranny. It is often told in a narrative that runs along the lines that in 1215 the people told that wicked King John I that he could no longer rule by fiat, and that ever since then we have continued to grow more and more democratic.

In a broad sense that is true, and we should not be flippant about the fight for democracy in Britain. But the reality of the battle for democracy is often far more prosaic.

The earliest examples of what we would think of today as a proper legislature was initiated 800-odd years ago, and its main role was to help wealthy landowners and members of the nobility to force the English Crown to allow them to enjoy their privileges of wealth and title, and stop the King (it usually was in those days) from extorting the nation to pay for expensive and usually inconclusive wars against the French. Even Magna Carta was the most powerful landowners telling the King that he had overstepped his mark when it came to taxation and arbitrary detention or arrest … of the wealthy, naturally. There was no mention of the the majority of people who lived as serfs or servants, who were the overwhelming majority of the country. That would come much later, and with much more strife and recalcitrance on the part of the powers that were.

And that pattern of overreach and reaction has essentially continued to this day. It is, as I said above, the rather more prosaic than poetic rhythm to which our unwritten constitution has been composed. And in each case, the increasing democratisation and accountability no doubt produced a great deal of shock, as have other constitutional decisions.

I imagine quite a few people at the time were surprised by Magna Carta, the Act of Union, and the Great Reform Act. These were monumental changes, that altered the course of the history of Britain. In each of those cases an increasingly democratic legislature was draining more and more power from a less and less autocratic monarchy. It was always shocking, even revolutionary. But eventually it became the new convention.

What the Court did was in keeping with this tradition. What happened with this ruling was extraordinary, and yet normal at the same time. It was extraordinary because it represented a dramatic increase in the Court’s role in politics; it was normal because it reestablished the supremacy of Parliament at the heart of what is a political dispute. As Lord Sumption told the BBC, the Court was only pushed into this position and ruled the way that it did because the government (using powers that it derives from the Crown) attempted to do away with Parliamentary oversight, and overturn the long-held convention that while the government may derive its powers from the monarchy, it is ultimately accountable to the people’s representatives.

This ruling provoked gasps in the courtroom, shock among the political class, and emotions ranging from joy to fury across Britain.

But that’s how we do things here. It’s been quite a ride.

And it isn’t over yet.

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Liam Mikhail OConnor

British-Irish, democratic socialist, internationalist, teacher.