The decision of the Supreme Court of the United Kingdom to revoke the decision of Prime Minister Boris Johnson to request the prorogation of the Parliament has a very direct impact on that country’s struggle to deal with the Brexit referendum results from June of 2016. But it will also have a long-term impact on the Canadian political system and the limits of a Prime Minister or Premier to control the work of parliament.
Put simply, the decision of the Supreme Court states that the right of the executive branch of the government to use its prerogative powers, including advising the Queen to prorogue parliament, is not an absolute right. Such prerogatives cannot be used by a Prime Minister to limit the inherent constitutional role of the legislature to pass legislation and scrutinize the work of the executive branch. By advising the Queen to prorogue the Parliament for five weeks as the deadline for the country’s exit from the European Union approaches, the Prime Minister, in the eyes of the Supreme Court, abused the power allotted to that position as a means of stopping Parliament from acting contrary to his wishes.
Beyond the United Kingdom, this decision has changed the relationship between a government leader and a parliament for all those jurisdictions where the Westminster parliamentary model is applied, including the Canadian Parliament and the provincial assemblies. No longer can a Prime Minister or premier prorogue a parliament as an absolute right. Any decision to request prorogation can be reviewed by the judiciary.
Looking back at the 2008 constitutional crisis created in Canada when then Prime Minister Harper advised the Governor-General to prorogue Parliament to avoid a no-confidence vote, if a similar action were to be taken by a future Prime Minister, it is fair to say there would likely be a request for judicial review and, using the logic set out in the court decision, could result in the revoking of such advice and any prorogation that might occur as a result.
To be clear, this is not a new power being grabbed by the judiciary. As was noted in the decision, going back as far as the 17thcentury, courts have held the power to scrutinise the decisions of the executive branch of government. In this sense, the court has not tilled new legal ground. And it does not impact of the sovereignty of parliament, set out in the UKs 1689 Bill of Rights (and still relevant today in Commonwealth countries as it it forms the basis of parliamentary supremacy an d sovereignty) to which the courts are hesitant to scrutinize a parliament’s actions, as prorogation was not a decision by parliament, but imposed on it by the executive.
As a result of the decision of the UK Supreme Court, parliaments in Canada and the Commonwealth are today stronger and the powers of the executive are weaker. This is one small step towards a rebalance in the relationship between the branches of government away from a strong executive led by a Prime Minister’s Office towards the parliament elected by the people and to which it is directly accountable.
To put it succinctly – this is a good day for democracy.
Kevin Deveaux is a former Nova Scotia MLA, UN global adviser on parliaments and has worked with more than 50 parliaments around the world.