A post concerning Boris’ departure from Parliament
The problem with supremacy, by its fundamental nature, is that it is absolute. Supremacy cannot be shared. You have it, or you don’t. It’s all to do with power.
We have always revered power and order. That is why we have Kings, Prime Ministers and Parliaments. We crave to know who tops the order – to fear, to revere; to challenge or to obey. Battles for supremacy are as old as time itself. Conflict between former Prime Minister Boris Johnson and Parliament comes as no surprise.
Regular readers of my blog may recall two previous posts relating to the exercise of power – from September 2019 concerning Boris Johnson’s prorogation of Parliament; and November 2022 relating to Prime Ministers’ use of prerogative powers.
The proroguing issue concerned a legal challenge to the government by Gina Miller, determined in the Supreme Court with a judgment from former President Brenda Hale. Miller’s case was that the Boris Johnson had sought to remove parliament’s oversight of Brexit by ‘standing Parliament down’ for an extended period. The Supreme Court determined that this was unlawful. Parliament was sovereign – it alone held the ultimate authority and could not be shut down by the executive. Hale LJ put it thus, ‘The sovereignty of Parliament would… be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased’.
The prerogative powers, formerly held exclusively by Kings but now wielded by their Prime Ministers again came under scrutiny by former Lord Chief Justice Igor Judge, when discussing Prime Ministerial appointments to the House of Lords, and PM Liz Truss’ attempt to exercise presidential powers, forcing through fiscal measures without Parliamentary oversight and ratification.
To consider the back-story of the struggle for supremacy we need to return to 1610 and King James I, son of Mary Queen of Scots. His battle was with Lord Chief Justice Edward Coke in the cases of ‘Dispensing Power’ and ‘Prohibitions del Roy’, the latter reported at [1607] EWHC KB J23. In Coke’s case notes (page 126 & 38) he wrote,
‘in Things which are not incident solely and inseparably to the Person of the King, but belong to every Subject, and may be severed, there an Act of Parliament may absolutely bind the King’…..‘The law of England is divided into three parts, common law, statute law and custom; but the King’s proclamation is none of them … and it was resolved that the King had no prerogative, but that which the law of the land allows him‘.
It is possible that legal history will report on ‘Partygate’ with more elegance than does currently the popular press. The House of Commons Committee of Privileges, representing the supremacy of Parliament, concluded that Parliament had been deliberately misled. Johnson’s assertion of ‘Kangaroo court’ to Parliament’s right to regulate itself was seen off. Had he not resigned he would have been suspended and likely expelled by his electorate under s.14 Recall of MPs Act 2015.
Boris Johnson’s challenge was not to a random committee, but to a sovereign Parliament. Perhaps this is why his departure from front-line politics was inevitable, and proves more than timely?
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Stephen Twist's Barrister Blog 