It wasn't obvious at all. Even ignoring the fact that traditionally this was outside the purview of the courts entirely, the Supreme Court had to take a very aggressive approach to the evidence to get this result. First, they decided that it didn't matter whether the Prime Minister had unlawful intent, only whether prorogation did in fact frustrate Parliament. Secondly, they decided that it was up to the Prime Minister to prove in detail that his prorogation didn't have this effect. (This was important because no-one has been able to come up with a convincing argument for how exactly this particular prorogation would stop Parliamentary scrutiny of Brexit. It was scheduled to avoid all the important dates where such scrutiny was likely, and the court had documents showing this was intentional.) Thirdly, they had to play up the fact that Parliament could theoretically sit or carry out other actions during the three-week party conference season if it was in the usual recess rather than prorogued in order to justify the claim that this prorogation was at all unusual in the first place. Which is technically true, but by convention no-one does this because using your control of parliament in ways that monkey with the other parties' annual conferences is pretty bad for democracy.
There was no reason to come up with an argument for how this would stop scrutiny of Brexit, as the only arbiter of what matters to parliament is parliament. Further this argument rings hollow when Boris has demonstrated an extraordinary willingness to try to sidestep the wishes of parliament in this respect, and so Parliament has every reason to want to be able to react quickly to any further attempts from the government to act in ways it has no support for.
As such, when a group of parliamentarians are among those who have sued arguing their ability to do their job is frustrated, then parliament is frustrated.
The recess issue is relatively irrelevant given that we're already in uncharted waters, with Parliament having sat unusually long due to Brexit. It's already established that the timeline relating to Brexit means other conventions are being sidelined because of the importance of getting this sorted. Since Boris didn't wait for votes over recess to happen, he can not say that there would not have been adjustments made. E.g. even if Parliament as a whole were not to sit, there'd have been nothing stopping Parliament from continuing certain committee work, for example.
> This was important because no-one has been able to come up with a convincing argument for how exactly this particular prorogation would stop Parliamentary scrutiny of Brexit.
I know that the judgment is very recent but I suggest that you read it in full when you get a chance. The court specifically noted that a substantial amount of delegated legislation related to Brexit was scheduled to be handled by parliamentary committees in the period (under provisions in the European Withdrawal Act), and that parliamentary committees continue to sit during recess. They specifically rejected the Government’s claim that a recess period is equivalent to a prorogation, noting that during a recess parliamentary questions can still be asked (and answered) and committees continue to sit.
The prorogation is unlawful not because it prevents debate on the floor of the houses, but because it shuts down all activity in parliament in way that recess does not, and that no reasonable explanation was given to do this.
I'd have to have a very close look at the exact details of that. It's certainly possible for parliamentary committees to continue to sit during recess, but it doesn't look like they generally have during the conference period before (presumably because the Commons committees are made up of MPs who are busy with the conferences), and the government was already quite visibly scraping the barrel to find even delegated legislation to occupy Parliament's time back in July. There were some quite rude remarks from opposition MPs about how inconsequential some of the Brexit-related legislation they were scrutinizing was!
Thank you for linking that. I was immediately arrested by the following line: "On 27th or 28th August, in a telephone call, he formally advised Her Majesty to prorogue Parliament between those dates".
Is this really implying that the government doesn't keep track of Prime Ministerial communication to the extent that we're not even sure what day he gave formal advice to the queen?! Surely at the very least there is a call log.
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