The circumstances were highly unusual but the Court was upholding a principle as fundamental as they comeby Sionaidh Douglas-Scott / September 24, 2019 / Leave a comment
Today’s Supreme Court judgment in the Miller and Cherry appeals, finding the prime minister’s advice to prorogue parliament unlawful, has already been hailed as extraordinary, as well as one of the most significant constitutional law judgments ever given. It has also attracted warnings of judicial overreach.
However, as Lady Hale made clear at very outset of the judgment, this was a “one-off.” As she stated, “The question arises in circumstances which have never arisen before and are unlikely to arise again.” (One hopes!) The judgment was unanimous. That is very significant. Contrary to earlier speculation, there were no dissents. It was unambiguous and unqualified, making it a very strong holding indeed. Indeed, it was more than a rebuke or defeat, and nearer to calamity for the government.
Three crucial points need to be stressed. First, the judgment upholds parliamentary sovereignty against an overbearing executive, by the Court’s strict and careful application of legal principles. For this reason, despite alarm from some quarters, the judgment cannot be said to represent a deviation from the central tenets of the constitution. To the contrary, it upholds them. While a remarkable ruling, it is in this and other respects an orthodox one.
Second, the case cannot be dismissed as an attempt to “thwart Brexit”—and certainly not by the government, which had argued its whole case on the basis that proroguing parliament had nothing to do with Brexit but was to prepare for a Queen’s Speech. Third, by dismissing the appeal against the Scottish Court of Session ruling, and finding Boris Johnson’s advice to prorogue both justiciable and unlawful, the Court avoided any discord, or tension between nations of the union.
The full judgment is also handed down in the names of both Lady Hale (President) and Lord Reed (the Vice President, and future Supreme Court President). As Lord Reed was in the minority in dissenting in Miller 1 (on the necessity of obtaining parliamentary consent before triggering Article 50) and had, according to some, appeared more sympathetic to the government case, his listing as co-author of the judgment seems significant.
Legal cases do not always make easy reading. But this judgment is very clear, setting out the issues methodically, in four stages. I will just summarise these main points here, but anyone can, and should, read the judgment for themselves.
The first issue was whether the lawfulness of the prime minister’s advice to the Queen is justiciable—ie a matter that can be determined by a court. If the Supreme Court had found it non justiciable, the judgment would have ended there. Notably, the High Court, in contrast to the Scottish Court of Session, held that it was a matter reserved for “high policy and politics.” The Supreme Court however found it justiciable. Some, such as former Supreme Court justice Lord Sumption, had suggested a finding of non-justiciability was simply constitutional orthodoxy. The 11 current judges disagreed, concluding the case was about “the limits of the power to advise Her Majesty to prorogue parliament”—a matter they could determine. As if to stress the orthodoxy of this holding, the Court cited caselaw going back to 1611 in support. As was stated in the judgment: “Although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it.”
Secondly, then, what were the limits to the power to prorogue? This is very important because the government claimed that, as there were no legal precedents to govern this situation, it could not be reviewed by courts. But, the Court identified two fundamental constitutional principles relevant to deciding that question—parliamentary sovereignty and parliamentary accountability. It articulated the legal test as the following: “a decision to prorogue parliament (or to advise the monarch to prorogue parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” The Court also said that, if prorogation did have that effect, there was no need to consider whether the prime minister’s motive or purpose was unlawful, thus neatly freeing themselves from any determination as to whether Johnson had lied to the Queen.
“The principles on which the Court relied could not be more central—parliamentary sovereignty, accountability, control of the exercise of the prerogative”
Having established the legal test, the third step was to apply it to the facts at issue, and in so doing, the Court found prorogation did have the effect of frustrating or preventing parliament from carrying out its constitutional functions. The court gave many reasons for so finding. These included that this prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change due to take place in the UK Constitution on 31st October. Parliament had a right to a voice in how that change came about. As the Court stated, “The effect upon the fundamentals of our democracy was extreme” but “No justification for taking action with such an extreme effect has been put before the court.” The government had not supplied any witness statement setting out reasons for the prorogation, merely filed a memo from Nikki da Costa, director of legislative affairs at No 10, and so “The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful.”
The final but by no means least important question, was what remedies the Court should grant to rectify the situation. There had been discussion on this very issue between Lord Pannick, representing Gina Miller, and government lawyers. On the one hand, the Court would not want its judgment ignored by a government… On the other hand, courts are wary of appearing too activist, of stepping on parliament’s toes by imposing a specific remedy. The government had argued that the Court could not follow the Court of Session judgment and declare prorogation “null and void,” because prorogation was a “proceeding in parliament” which they argued, under the Bill of Rights of 1688, could not be impugned or questioned in any court.
The Court quickly squashed that argument—finding that prorogation was not “the core or essential business of parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.” To make things as clear as possible the Court stated that the prime minister’s advice was “unlawful, void and of no effect,” and underlined this by adding: “This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. Parliament has not been prorogued… Unless there is some parliamentary rule of which we are unaware, [the speaker] can take immediate steps to enable each House to meet as soon as possible.” Somewhat pointedly however, the court added that “It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.”
The judgment has just been handed down, and serious commentary needs time for reflection. However, the judgment prompts some immediate questions. First, it is a one of huge constitutional significance, upholding parliamentary sovereignty. But if it seems unprecedented, that is because there has been no attempt to prorogue parliament before, for such a length of time, at a time of national importance. That is why the case was in the words of Lady Hale, a “one off.” Courts have found against governments before in the UK, but never found a prime minister’s advice to be unlawful as here. But the principles on which the Court relied to make its judgment could not be more central—parliamentary sovereignty, accountability, control of the exercise of the prerogative. If the Courts are not able to police and uphold these, who else will, given that parliament was disabled, and in the words of some “silenced” by the prorogation? In upholding the fundamental principle of parliamentary sovereignty, the Court was hardly setting itself up as a proponent of some new judge-made constitution.
Second, this was not only an adverse ruling for the government, but devastating, in its unanimity and clarity on the unlawful behaviour. Its ramifications go beyond the prime minister (and who knows if he will heed the calls for his resignation), to his special advisers, and to the cabinet (most of whom seem not to have been informed about the prorogation prior to its occurrence). What of the attorney general’s legal advice? How could he have advised the prorogation to be lawful when the Court unanimously found it to be not so? Why did the government not attempt to carry over major bills, such as crucial bills on Brexit, or the domestic violence bill, to the next parliamentary session? These last points may not be an incidence of unlawful behaviour but do illustrate a disorganised government not in control of its agenda.
Finally, what are the implications for further government action? Within minutes of the judgment, former attorney general Dominic Grieve had stated that any further attempt to prorogue parliament along similar lines (which to be clear, the government has not to date ruled out) “will immediately attract another court application, and this time in view of the supreme court judgment, there will be an immediate order that it is unlawful.” Furthermore, today’s unanimous holding does not bode well for the government should it try to ignore or flout the “Benn Act” requiring the prime minister to seek an extension of Article 50 under certain circumstances.
This judgment will keep politicians and constitutional lawyers very busy but for the government it is a very sobering message.