Text Messages | A ruling against patriarchal prerogative

The three women who overturned British Prime Minister Boris Johnson’s proroguing of Parliament helped set a clear constitutional precedent – and struck a blow against the Establishment.

Courtroom dramas are very popular in film, television and popular fiction. Audiences and readers relish the fight between “good” and “evil”, the clash of uncaring corporate behemoth with principled ordinary person, the opposition of the tangible and the ethical.

Each case builds up to that standard, the closing arguments by the opposing lawyers, an opportunity for screenwriters and novelists to wax lyrical and place burnished and inspiring words into the mouths of their characters. Addressing the jury and, more pertinently, viewers and readers, counsel for the defence and the prosecution sustain the fallacy that lawyers are as oratorically gifted as was Cicero, one of the greatest speechmakers (and lawyers) in history.

For a brief time, in the most confined of spaces, what is just and correct seems really to matter. In the outside, the real world, truth and justice might seem inconvenient, but in the amber of the legal-drama moment, they are unassailable and eternal.

For three-and-a-bit days this September, a real courtroom drama eclipsed all those noble, fanciful, melodramatic and fictional ones. At issue was the behaviour of the leader of a country, accused of unlawfully terminating the sitting of the current session of its parliament. At stake were constitutional principles that were set only by precedent because the given country has no written constitution.

The United Kingdom has done rather well for rather long with a constitutional monarch and a sovereign parliament. But when Boris Johnson, a Donald Trump-like bounder with the bulldozing tendencies of Brazil’s Jair Bolsonaro, became the unelected prime minister of the union, the limits of constitutionality were bound at some point to be tested.

Trailblazing women

When Johnson decided that Parliament should be prorogued – that its current session should be discontinued without dissolving it – his action was challenged in Scotland’s highest court, the Court of Session, and in the High Court in England. The Scottish judges ruled against proroguing and declared in addition that Johnson had misled the Queen over the need to prorogue. The English court held that the suspension was legal. Both judgments were challenged, which took the case to the UK’s Supreme Court.

The case in Scotland had been brought by the Scottish National Party’s Joanna Cherry, that in England by the campaigner Gina Miller. In the Supreme Court, the UK government was challenging the ruling of the Scottish court and Miller that of the English court.

To these two remarkable women protagonists must be added a third: Lady Hale, head of the Supreme Court. In a patriarchal profession, the epitome of an old boys’ network made up of those privileged by public-school educations, Brenda Hale has been a trailblazer for women and those educated in state schools. (In the UK, public schools are the equivalent of South Africa’s private schools.)

Hale went to a state school in Yorkshire but thereafter outdid any male public-school rivals. She graduated from the University of Cambridge top of her law class, was the youngest person and first woman to sit on the Law Commission, became the first female law lord and the first female president of the Supreme Court.

In a scenario that not even the most imaginative or idealistic screenwriter would have dared to commit to the page, it was Hale, Cherry and Miller who collectively dealt the paternalistic and patronising bully boy Johnson a serious blow. 

A rapier mind

At 74 and a little rounded at the shoulders, Hale seems like an innocuous member of the local parish council, her pageboy hairstyle and glasses lending an air of even greater feyness. But watching her deliver the court’s summary of its ruling was to have any misguided stereotypes swept away. 

Beneath the seemingly gentle demeanour is a rapier mind that writes and speaks in accessible, jargon-free language that leaves no doubt. In her clarity and simplicity, Hale is a lesson to all who think and write – and think that they have written well and clearly.

Here is an excerpt typical of the incisive style of a ruling that will have legal, constitutional and historical reverberations for many years to come. 

“The second question, therefore, is what are the limits to that power [to prorogue]? Two fundamental principles of our Constitution are relevant to deciding that question. The first is Parliamentary sovereignty – that Parliament can make laws that everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. 

“The second fundamental principle is Parliamentary accountability: in the words of Lord Bingham, senior Law lord, ‘the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lie at the heart of Westminster democracy’. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.”

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