On Tuesday, the Supreme Court ruled anonymously that Boris Johnson’s prorogation of Parliament was unlawful. The President of the UK’s highest court, Lady Hale, claimed that in their view, the suspension “had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”. The court said this is an “improper purpose” for prorogation.
Because it was unlawful, the Government’s instruction to suspend Parliament was “void of no effect” – in other words, Parliament was never prorogued.
The justices said it was for the Speakers of the Commons and the Lords to decide what to do next.
John Bercow announced shortly afterwards that Parliament would reconvene on Wednesday morning at 11am.
The ruling was without a doubt a devastating blow for the Prime Minister, who had already suffered two embarrassing defeats in the past couple weeks.
In early September, a string of rebel MPs passed legislation aimed at blocking no deal and then pulled the plug on Mr Johnson’s attempt to call a general election.
As the Prime Minister faces another incendiary day, the reason this ruling was made at the Supreme Court can be revealed – and it is all because of the European Convention of Human Rights and Tony Blair.
The former Labour Prime Minister controversially swept aside 1,400 years of history by setting up a new US-style Supreme Court in place of the Law Lords in 2005.
The Law Lords were judges appointed under the Appellate Jurisdiction Act 1876 to the House of Lords in order to exercise its judicial functions, which included acting as the highest court of appeal.
The House of Lords lost its judicial functions upon the establishment of the Supreme Court of the United Kingdom in October 2009, when Constitutional Reform Act 2005, introduced by Mr Blair, came into force.
The reform was reportedly motivated by concerns that the historical mixture of legislative, judicial, and executive power might not conform with the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights, because a judicial officer who has legislative or executive power is likely not to be considered sufficiently impartial to provide a fair trial.
This act ensures that the powers of the Lord Chancellor and Secretary of State for Justice has limitations on their abilities over the president of the court.
This act also ensures that the Secretary of State for Justice has no jurisdiction over this ministry, meaning they have no decisions in the operations performed.
According to a comment piece by the Daily Telegraph, written in 2009, the change was proposed to end what the Government considered an anomaly – but “this was not an anomaly in our own realm, only when compared with other jurisdictions”.
The article reads: “What was the pressing need to dispense with the Law Lords?
“There was no obvious failure in the system that justified what has turned into a very expensive ‘modernisation’, with nearly £60million spent adapting the Middlesex Guildhall to the requirements of the court.
“And there are deeper concerns about this reform, which go to the heart of Labour’s disdain for our country’s constitution and its determination to wreck as much as it can before leaving office.
“The interweaving of executive, legislature and judiciary has been central to Britain’s political development.
“We do not have a strict separation of powers as in America, but rather a concept of ‘mutual independence’.
“The Government argued that there must be a separation in order to comply with Article Six of the European Convention on Human Rights, which guarantees a fair trial.
“But the Law Lords dealt exclusively with points of law, and it was to the betterment of justice that they were also members of the legislature.”
The Human Rights Bill, before it was passed by Parliament, was strongly promoted by Mr Blair in the early 2000s.
In the preface to Rights Brought Home, the White Paper that accompanied the introduction of the Human Rights Bill, the former Labour leader wrote: “The Bill… will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg.
“It will enhance the awareness of human rights in our society.
“And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.”
The abolishment of the Law Lords created a lot of controversy at the time – in particular over the running costs of the Supreme Court in comparison to the Law Lords.
According to parliamentary records, on November 10, 2009, Conservative MP Shailesh Vara addressed the House of Commons, saying: “Given that it was widely reported that the decision to set up a Supreme Court was taken by Tony Blair and Lord Falconer over a glass of whisky, and that the annual cost of running the Supreme Court is some £14million whereas the cost of the previous arrangement was £3million a year, does the Minister agree that it has proved to be a very expensive glass of whisky?”
Then Minister of State Michael Wills, replied: “No, I do not agree, and I counsel the Honourable Gentleman – and I suspect his colleagues who will follow on shortly – that they must be very careful to ensure that they compare like with like.
“If I may, I will give the Honourable Gentleman a few figures.
“The figures he quotes are roughly right, but they do not include all the costs incurred in the running of the Appellate Committee of the House of Lords, as they were not included when we looked at the costs of the Supreme Court.
“Let me just give an example: The costings he has quoted go back to 2002-03, I think.
“Inflation since then and the costs that cannot be separated out precisely from the running of Parliament, such as those for rent, security, IT, catering, library services, cleaning and non-cash items, amount to about £7million.
“So when the Honourable Gentleman looks at these figures and genuinely tries to arrive at a like-for-like comparison, he will find there is no significant difference.”