No principle justifies last week’s radical legal intervention in high politicsby Richard Ekins, Stephen Laws / October 4, 2019 / Leave a comment
The Supreme Court’s prorogation judgment proves that it is not just hard cases that make bad law. If the Court had faithfully upheld the law of the constitution, it would have ruled that UK courts had no jurisdiction to quash advice to prorogue parliament, let alone to declare that a prorogation carried out in parliament was null and of no effect.
Unfortunately, the Court did not uphold the law of our constitution. The Supreme Court worked a radical change in our law, one that makes significant inroads into the political constitution. Many who defend, or otherwise welcome, the judgment openly admit this but argue that the change was justified by the supposed outrageousness of the government’s tactics. Even former Supreme Court Justice Jonathan Sumption, whose 2019 Reith lectures rightly lament the rise of the courts and the decline of politics and who argued a month ago that prorogation was outrageous but lawful, now says something similar, asserting that the Supreme Court was right to change the law.
Note how radical the Court’s action was. No other court in the Westminster world has ever quashed advice to prorogue parliament, let alone prorogation that has been carried out. This is not because prorogation is usually routine. Prorogation always requires political judgment because it curtails the parliamentary timetable and terminates unfinished parliamentary business. Other Westminster systems, including in Australia and Canada, have more recent experience than the UK with politically controversial prorogation. These controversies were settled politically; the intervention of the courts was not contemplated. On the contrary, the common law, reinforced in our country by Article 9 of the Bill of Rights 1689, forbids judicial intervention in this domain.
In the landmark case of GCHQ, Lord Roskill explained that while the exercise of some prerogative powers might be amenable to judicial review (or “justiciable,” to use the legal term), the exercise of some clearly would not, including dissolution, foreign affairs, and defence of the realm. He did not mention prorogation but it fell within this list—like dissolution it is a prerogative concerning the relationship between the Crown and the Houses of Parliament, the exercise of which is for ministers accountable to parliament and the electorate. The Supreme Court’s judgment last week abandons the principled limitations Lord Roskill articulated.
The power to…