Politics

Could the courts stop the next prime minister from suspending parliament?

How appalling that the issue has been allowed to get this far

July 16, 2019
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Last week, high profile figures said that they stood ready to take legal action against a prime minister determined to force through a no-deal Brexit by prorogation—ie suspension—of parliament. (Prorogation is a personal prerogative of the Queen, taken on the advice of government ministers).

As Boris Johnson, very likely the UK’s next prime minister, has continually refused to rule out this “nuclear option,” John Major stated on the Today programme that he “would be prepared to go and seek judicial review to prevent parliament being bypassed.” Gina Miller, whose successful legal action required Theresa May to obtain parliamentary consent before triggering Article 50, similarly said she would take immediate legal action. Her lawyers, Mishcon de Reya (the same legal team as in the MillerSupreme Court case) have written to Johnson, stating that prorogation would be not only “constitutionally unacceptable” but also unlawful.

If the constitutionally unthinkable did happen, what are the chances of the courts stopping prorogation? I would argue that they are fairly high. But what constitutional dystopia are we in that the question is even necessary?

To recap: the issue of prorogation arose because several politicians and lawyers suggested it should be used. Oxford emeritus law professor John Finnis, in an article in the Telegraph on 1st April, wrote “the legal and democratic principles of our constitution now point to one resolution of the EU withdrawal crisis: prorogation of parliament for two or three weeks.” This view was immediately challenged, including in a letter to the Times on 3rd April signed by many constitutional experts. Yet politicians continued to push for prorogation. Before being knocked out of the Tory leadership contest, Dominic Raab stated that he was ready to suspend parliament.

The argument against prorogation has been made by many (including myself recently in Prospect). Speaker John Bercow stated that “parliament will not be evacuated from the centre stage of the decision-making process on this important matter.” A recent Times article by Lord Pannick QC provides a helpful precis of the main arguments. First that proroguing parliament contradicts parliamentary sovereignty; second that the present urgency of the situation makes prorogation unlawful; and third, that prorogation would be “seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit.” Then there is the issue that prorogation would involve the Monarch politically in Brexit.

As the politicians have not put this issue to rest, it seems the courts will be drawn into it. But how might that work?

It is likely that legal action would take the form of a review of the Prime Minister’s advice that the Queen prorogue parliament. This, by focussing on the prime minister, would avoid encroaching on the Monarch’s personal prerogative, which has been somewhat of a no-go area for courts. That aside, I see basically three issues arising in terms of litigation.

First, time would be very short. The UK could well have left the EU by default before a court came to any determination, rendering litigation theoretical. For this reason, Jo Maugham QC and @GoodLawProjecthave already instructed leading Counsel on whether judicial review of a potential advice to prorogue could be instigated now, rather than waiting for any prorogation to occur. (The Wightmancase sets a precedent in this regard—in obtaining a ruling from the European Court that Article 50 can be unilaterally revoked, even in the absence of any government action to do or oppose this).

Second, would the courts actually find such an action justiciable (ie agree this is a legal as well as political matter)? I believe that they would but opinion is divided. The courts have always traditionally excluded some prerogative powers from judicial review on the basis that they involve issues of high policy. However in Miller, such a prerogative power (to notify intention of EU withdrawal) was considered justiciable, partly on the basis that “a major change to UK constitutional arrangements cannot be achieved by ministers alone.” That applies here. Given that the UK will automatically leave the EU on 31st October absent any further action, the government’s failure to stop it will create a substantial constitutional change by default.

Even if there is no specific statute outlawing prorogation, it would be very strange if the government could, by prorogation, prevent parliament actually adopting such legislation. In those circumstances, parliamentary sovereignty would look like a creature of government permission.

We should also not forget an important historic precedent—the “Frequent Parliaments” clause of the Bill of Rights 1688, which states that, “And that for Redresse of all Grievances and for the amending strengthening and preserving of the Lawes Parlyaments ought to be held frequently.” Suspension of parliament at a critical period effectuating a no-deal Brexit could well engage this clause. So I believe the action should be found justiciable.

Finally, could the action be won on the substance? Proroguing parliament would be frustrating its will in relation to the most significant constitutional matter in generations, something the courts have made clear the executive should not do. MPs have on several occasions expressed a view that a no-deal Brexit should not be permitted. So the action looks to have a good chance of success.

All in all, this issue of potential prorogation is just a further episode in a saga of evisceration of parliament, by a government (aided by certain commentators) which prefers to interpret the British constitution with the executive as its dominant constitutional actor. The pre-Miller attempt to trigger Article 50 without first obtaining parliament’s consent; resistance to revealing the government’s own impact statements; attempts to prevent a “meaningful vote”; the finding of the government to be in contempt for refusing to supply the Attorney General’s full advice on Brexit, are but other stages in this sorry saga.

However, parliament is not entirely blameless in this story—if it had taken clear legislative action before, we would not be here. Long before this, MPs should have adopted a brief Act stating parliament could only be prorogued by the Crown by means of an Order in Council, negatable by a resolution of the House of Commons. Even the Long Parliament, during the reign of Charles I, stipulated it could be dissolved only with agreement of its members, and thus endured from 1640-1660.

Opportunities for such parliamentary legislation are now almost non-existent, so courts may be the last resort. And so the judiciary are likely to be embroiled again, and as in Miller, quite possibly chastised again as “enemies of the people.” But if the political constitution is misused, then it is unsurprising if there is a turn to law.