Expert Comment: Supreme Court ruling on prorogation

Dr Peter Laugharne, Senior Lecturer in Politics and International Relations, comments on the Supreme Court's ruling on prorogation.

Date: 03 October 2019

What makes the prime minister’s attempt to close Parliament for an extended period of time so politically explosive?

Parliament is the most important institution in the British political system, but our democracy is fragile. The monarch is hereditary (though not always directly so); the judiciary is appointed; so are most of the members of the House of Lords, save for the remaining 92 hereditary peers and the functional representatives of the established church in England - the 2 archbishops and 24 bishops. 

The only national political institution that is directly elected is the lower chamber of Parliament: the House of Commons.

We are all aware that Parliament passes laws. We obey these laws because of who has made them and the process they have gone through. This is manifest legitimation.

However, this is not the most important function of Parliament. It’s most important function is at once its most and least obvious: latent legitimation. As the only national political institution with a democratic component Parliament’s ability to meet regularly, but crucially also uninterruptedly, are key to the democratic legitimacy of the entire political system.

In the 1600s King Charles I famously only called Parliament to meet when he wanted it to vote him money and when it had done so he shut it down. This did not end well. It led to a Civil War, regicide and revolution: the monarchy was overthrown and dictatorship ensued. 

The monarchy was eventually restored but things were never quite the same again. Progressively, governments absorbed the powers of the monarch including the right to ask for Parliament to be closed – dissolved – or suspended – prorogued. Normally this is relatively uncontroversial. But these are not normal times. 

Unusually we have a government that has only the support of a minority of MPs, unable to dissolve Parliament, combined with the biggest constitutional issue since World War Two. The Government cannot get its way, so it has attempted to use its executive authority to circumvent Parliament. It has come unstuck. The Supreme Court has decided that this simply is not cricket! But unlike sport, some of the rules of British politics can be changed as the game goes on and also there are arcane procedures such as Orders of the Privy Council that the Government may yet try to use – the political equivalent of ball-tampering? 

The judges have temporarily restored balance but history tells us that in Britain for the most part politics (the art of the possible) rules. Be prepared for more fireworks!

Portrait of Peter Laugharne