We are not EUmused... The Supreme Court's Judgment on Prorogation

Yesterday, the UK Supreme Court ruled on what is possibly the most important constitutional law case in a generation. In the case of R (Miller) v Prime Minister [2019] UKSC 41, the court handed down a judgment that we will be seeing the reverberations of for decades to come. It is an intensely political case, but the court were keen to set aside partisanship and rule simply on the law as they saw it.

You may recall, a few weeks ago when Johnson announced the prorogation of Parliament, I wrote a post saying that it was a legal exercise of the prerogative powers, but evidently I was too hasty in making this judgment. Lady Hale, the President of the court, handed down a unanimous judgment that declared the prorogation was illegal, and thus, in effect, didn't happen at all. But let's look at how they came to this decision, and the key parts of their judgment...

For some background:

• The UK decided in a referendum in 2016 to leave the EU. Whilst the result was not legally binding, the government has consistently insisted they will carry it through. 
• May triggered art.50 after a vote in Parliament (following the case of R (Miller) v Brexit Secretary) in March 2017
• After obtaining two extensions to art.50, May resigned and Johnson was appointed Prime Minister in July 2019
• Johnson then, in August, announced the prorogation of Parliament for a five week period before the next Brexit deadline of October 31st, 2019
• Johnson claimed this was a normal prorogation to allow for a new Queen's Speech, and the setting out of a bold new domestic legislative agenda
• His critics have said this prorogation was intended to disrupt efforts to prevent a no-deal Brexit, and violated both Parliamentary sovereignty, democratic norms, and the ability of the legislature to hold the government to account 

Gina Miller, a businesswoman and activist, and Joanna Cherry MP both sued the government in an effort to stop prorogation. The High Court of England dismissed Miller's claim, while a Scottish court allowed Cherry's suit, and the appeals of Miller in England and the Government in Scotland led to these cases being joined. 

The Court identified four key questions of law that arose from this case:

1. Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
2. If it is, by what standard is its lawfulness to be judged?
3. By that standard, was it lawful?
4. If it was not, what remedy should the court grant?

1)

Previously, I had argued that the Prime Minister's advice to the Queen was not justiciable in a court of law. The GCHQ case in the 1980s had illustrated the court's wish to exercise authority over the prerogative powers (of which prorogation is one) but also their reticence to actually decide such a matter in a court of law. 

However, in this case, the judges put forward some compelling reasoning for their decision. One particularly interesting authority cited by the court was that of the Case of Proclamations [1611] which held that "the King hath no prerogative, but that which the law of the land allows him." This clearly places a legal limitation on the prerogative, and so led the court to conclude that the matter was indeed justiciable. The reference to the 'law of the land' in a common law jurisdiction such as the UK is clear evidence that the limitations on the prerogative are both found in parliamentary statute and case law. Entick v Carrington - a lodestar of British constitutional theory - further placed limitations on the prerogative in relation to human rights and government authority. 

But whilst the question may be a legal one, is it up for the courts to get involved? There have, of course, been accusations of the Supreme Court 'legislating from the bench' in this case, but the reasoning set out by the court is fairly straightforward: the limitations on prerogative powers, as has already been discussed, are Parliament and case law. The effect of the prorogation of Parliament was to remove the accountability, intentionally or not, of the government to the legislature, and so the only option left was for the judiciary to get involved and reassert these limitations. Here, the court cited the case of R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] in saying that government is accountable to Parliament in terms of politics and efficacy, but accountable to the judiciary in terms of legality. 

As to the effect on the separation of powers, the court argued in this case that they were given effect to the separation of powers by ensuring the government did not unlawfully end the accountability of ministers to Parliament through prorogation. 

2)

So the court by this point has concluded that this case is a matter for the courts to decide. But how do you decide whether something is lawful?

Statute is largely silent on the matter of the prerogative, but case law is rich in such areas. We have already seen how the Case of Proclamations and Entick v Carrington have placed limitations on the prerogative, and there are many more examples cited by the court to illustrate this point. Furthermore, the court took the opportunity to emphasise the deep respect of the judiciary throughout history for the principle of Parliamentary Sovereignty. The case of Attorney General v De Keyser’s Royal Hotel Ltd [1920] is particularly interesting in that it held prerogative powers couldn't be used to bypass the will of Parliament.

The first Miller judgment in 2017 held that "the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy," and whilst the court noted the need for Parliament to be prorogued occasionally, they argued the length of this prorogation (at five weeks) and the timing of this prorogation (so close to the Brexit deadline) undermined the principle of accountability, which is a key element of the United Kingdom's uncodified constitution, and therefore a legal limitation on the prerogative power, as mentioned in the Case of Proclamations. 

The court therefore concludes that there are numerous limits on the power of prorogation in determining whether it is lawful - namely (a) Parliamentary Sovereignty and the will of Parliament, and (b) Parliamentary Accountability, and whether or not the prorogation undermines this. 

3)

So was the Prime Minister's decision to prorogue lawful, by these standards?

The evidence is clear to suggest that it was the Prime Minister's intention to subvert the will of Parliament (who are largely opposed to a no-deal Brexit), particularly when considering the Memorandum published by the Director of Legislative Affairs explicitly noted the potential controversy surrounding prorogation so close to the Brexit deadline, as well as Johnson's response deriding the very idea of a September sitting of Parliament.

The argument was made by the government that, despite the prorogation leaving Parliament with just three out of a potential eight weeks of debate prior to the deadline, the number of sitting days would be minimised by the traditional recess for conference season. However, the court note that a recess is fundamentally different to a prorogation, and Parliament could elect (as Jeremy Corbyn has done already) to cut their conference visits short, or skip them entirely, in order to focus on Brexit. 

The prospect of the government deliberately subverting the will of Parliament through attempting to force through a no-deal Brexit, as ministers have suggested in recent weeks, is antithetical to the ideas of Parliamentary sovereignty, and in particular the principle set out in Attorney General v De Keyser’s Royal Hotel. As a result, this is clearly not a normal instance of prorogation. 

As for whether there is a reasonable justification for such a prorogation, the court struggled to find one. As with most legal cases, the actual motive of the person involved (in this instance, the Prime Minister) is immaterial; there must simply be a motive that can be identified that would make the prorogation acceptable. So whether Johnson actually intended to subvert the will of Parliament and force a no-deal Brexit is irrelevant, as long as there was a legal and reasonable justification for prorogation. 

The justification provided by the government was that this was simply a run-of-the-mill prorogation to begin the next session with a new Queen's Speech and a brand new legislative agenda for a brand new Prime Minister. However, the court was compelled by the testimony provided by former PM Sir John Major (who himself had controversially prorogued Parliament), in that it only takes a matter of days to write a Queen's Speech, and thus the five weeks Johnson had allowed himself was extraordinary. No evidence was provided by the government that could justify why they needed such a long time to write their new legislative agenda, and so this justification was simply unreasonable. 

One of the most fascinating lines, in my opinion, in this case was this: "the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility." This sentence encapsulates the entire judgment: the Prime Minister has a duty in advising the Queen to prorogue Parliament to do so in line with the constitutional principles that govern our society, including parliamentary sovereignty and accountability. The mere wish to set out a legislative agenda at such an extraordinary time in British constitutional history is not suitable, and the court disregarded this out of hand as a justification. 

4)

The remedy decided by the Supreme Court was simply to render the prorogation null and void - Parliament was still sitting and should be convened at the wishes of the Speaker of the House and the Lord Speaker. Parliament has simply not been prorogued. 

The government argued that the Courts could not do this - it was a Parliamentary proceeding that they had no right to judge under art.9 of the Bill of Rights of 1688, which forbids the questioning of any Parliamentary proceedings in a court of law. 

The court had an epic smack-down in line: this was not a parliamentary proceeding, it was a decision taken by the government without the consent of Parliament - indeed, without the prior knowledge of Parliament - and therefore could not be characterised as a Parliamentary proceeding when the very concept of prorogation is to end the proceedings in Parliament. 

The impact of this case is yet to be seen as the Houses of Parliament reconvene today, but it is clear that the Supreme Court has taken a massive step in extending the reach of the judiciary in protecting Parliamentary Sovereignty and the core principles that underpin our constitution and our way of life. Before this judgment, I was under the impression that the Court would not wish to enter into the fray of a topic so intensely political, but it is clear now that they believe they had no choice but to do so in order to safeguard the sovereignty of the Westminster Parliament, the oldest in the world, and thus have put into action the words of Woolf: if any branch of government tried to do the unimaginable and act contrary to the rule of law, the judiciary, or other branches of government, would be able to step in and also break such bounds to right the wrong.

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