Editorial | What Brexit ruling says to Jamaica’s Parliament

Ronnie Thwaites, the opposition MP, has paid keen attention to Lady Hale’s ruling yesterday in the UK’s Supreme Court on Boris Johnson’s proroguing of the British Commons in a Brexit-related case. We expect that he will bring the ruling to the attention of the Jamaican Parliament generally.

Mr Thwaites often complains about the laziness of the Jamaican legislature – how few times it sits and the insufficiency of the work it gets done. But his greater frustration is the legislature’s obsequious attendance on the executive.

In an April article in this newspaper, for example, Mr Thwaites complained that he had languishing more than 20 private member’s bills, motions on the Order Paper, all of which, he believed, were of significant national interest.

Three years ago, in August 2016, noting the sway the executive held over Parliament, Mr Thwaites said: “Not surprisingly, all that gets done is some of the business on the agenda of the government of the day. There is little serious discussion, even less research, and a great deal of egotism, bombast and petty triumphalism.”

Critique

Implicit in Mr Thwaites’ ongoing critique of the House is the question of whether the Jamaican legislature can extricate itself from its subservience to the Cabinet to perform an oversight role of the executive. Recent events in the Commons, and yesterday’s unanimous decision by 11 judges of the UK Supreme Court, clearly suggest that it is possible if Parliament has the will.

We acknowledge, of course, the constitutional differences between Jamaica and Great Britain. The former has a written constitution and the latter doesn’t. Moreover, rulings by the UK Supreme Court aren’t of themselves precedent for Jamaica, but are highly persuasive. Lady Hale, in this case, sat in her role as president of the Supreme Court; she is also the most senior judge of the Judicial Committee of the Privy Council, Jamaica’s final court. Further, Jamaica’s political arrangements are an adaptation of the UK’s Westminster system, and our Constitution is a codification of many of the principles that lie therein.

Boris Johnson, the UK’s prime minister for two months, is keen to take Britain out of the European Union by October 31, even without a formal withdrawal agreement, which would be against the will of an increasingly newly assertive Parliament that passed legislation requiring a delay of the Brexit deadline in the absence of a deal. But earlier this month, Mr Johnson engineered a six-week proroguing of Parliament, until mid-October, which many MPs – and others – interpreted as an attempted circumvention of the legislature.

If Parliament was not in session, it could do little to prevent a no-deal Brexit, if Mr Johnson pursued that option. The prorogation, during which Parliament can’t meet and all matters fall off its Order Paper, was, ostensibly, to allow for a Queen’s Speech, when the Sovereign outlines the government’s policies for the ensuing period. But, normally, that closure of the legislature lasts four days, rather than six weeks.

The upshot: a challenge to the legality of the prorogation. Mr Johnson’s lawyers argued that the proroguing was a political matter between the Parliament and government in which the court had no place, but the Supreme Court held that it has the jurisdiction to decide on the existence and limits of a prerogative powers – those powers unique and vested in the Crown, but, in practice, mostly administered by the prime minister and Cabinet.

Moreover, the court observed, it was Parliament’s sovereign authority to make laws and oversee the executive, which could be undermined “if the executive could, through the use of the prerogative, prevent Parliament from exercising its powers to make laws for as long as it pleased”. In the current case, the question was whether Mr Johnson’s decision to advise the Queen to prorogue Parliament was “without reasonable justification’ and proscribed its ability “ to carry out its constitutional functions as a legislature and as a body responsible for supervising the executive. The court’s answer was yes. In imposing limits on prime ministerial power, it concluded that the advice to the Queen was unlawful and of no effect.

During the Brexit episode, the Commons has, on a number of occasions, grabbed from the executive the authority to set the legislative agenda, whose outcomes include the no-Brexit-without-a-deal law. If there was such spunk in Jamaica’s Parliament, Mr Thwaites might have had action in bills and resolutions, and the legislature wouldn't consider itself subservient to the executive. It has the law on its side.