A Tale of Vandals and Shining White Knights: The Case of Prorogation

Alex Iordache

The story of this year’s purported prorogation is well known. The idea had been doing the rounds for months. The Prime Minister advised the Monarch to prorogue Parliament from a date between 9 and 12 September 2019 until 14 October 2019. The Queen, acting upon that advice, issued an Order in Council to make arrangements to that effect.

Various claimants challenged the advice and the purported prorogation in both English and Scottish courts. Government documents disclosed during these proceedings outlined the desire to prepare the new legislative programme as the reason for the prorogation. They indicated the five weeks covered the usual conference recess period. The claimants argued that a prorogation of five weeks had the effect of unduly curtailing the ability of Parliament to legislate and hold the executive to account, particularly given the 31 October EU withdrawal deadline, and was therefore unlawful. An alternative argument was advanced based on improper purposes. The Government position was that the matter was not justiciable because it involved considerations of high policy and that, in any event, the law did not restrict prorogation in the manner claimed.

The Divisional Court and the Lord Ordinary agreed with the Government’s arguments. The Inner House of the Court of Session and the UK Supreme Court reversed that and held the advice and the prorogation to have been unlawful. The Supreme Court accordingly found the prorogation void.

In the interest of brevity, this analysis will focus on the unanimous Supreme Court judgment[1] and on the points Professor Mark Elliott made in its favour[2]. It will not cover non-justiciability. It will show his treatment of (i) the expanded understanding of parliamentary sovereignty, (ii) the law-convention divide, and (iii) the distinction between the legality and the improper purposes grounds is misleading. It will argue that explanations of this kind (which underpin Lord Pannick’s and Professor Craig’s[3] reasoning as well) enabled the court to eschew a justification of the legal changes it enacted and of the legitimacy thereof.

The discussion of parliamentary sovereignty at paragraphs [41] – [42] is a cornerstone of the judgment. Paragraph [41] commences by stating the orthodox, narrow version of parliamentary sovereignty: ‘that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply’. They then state parliamentary sovereignty is not confined to this, but the examples they give are the following: (i) The Case of Proclamations, (ii) De Keyser, (iii) Fire Brigades Union. All three examples are about attempts to bypass an enacted statute and nothing more. However, at [42], the conclusion they draw is different: ‘The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.’ This conclusion does not follow from the examples the court gave. Lord Pannick’s wide version does not follow from the narrow one. It is not an incremental step but an entirely different rule.

Elliott dismisses supporters of the narrow view on the ground that they indulge in technicality. He says parliamentary sovereignty is not a technical rule about the hierarchical place of parliamentary legislation, but ‘a fundamental principle that determines and reflects the nature of constitutional democracy in the UK’. This does not, with respect, address the problem we identified with the court’s reasoning. It is only useful as an argument in favour of a prescriptive proposition. It is by no means clear that the legal principle itself is as extensive as Elliott sees it. The orthodox position was that the legal principle itself was exclusively about the status of acts of Parliament. Secondly, even accepting that the principle extends beyond that, legal principles are not enforceable as such. He who seeks redress in court must point towards a specific rule which has been breached. The expanded version does not describe the rule as it stood prior to this judgment. Elliott is surely right to suggest the new position was long in the making through the invocation of ‘liberal democracy’ or ‘constitutional democracy’ as a rule-generating principle[4]. But the collusion between the principle of parliamentary sovereignty and the developing principle of ‘constitutional democracy’ helps backers of the second by enabling them to state that they follow orthodoxy and defend Parliament. What the success of this approach demonstrates is that a judge will be more easily persuaded to act as a shining white knight if the submissions they receive mis-portray change as continuity or incremental development. The two Miller cases do not empower the House of Commons. They empower the Supreme Court.

Faithful to this mis-portrayal strategy, the court makes no effort to differentiate law and convention (even terminologically), especially in the realm of constitutional convention. Thus, ‘constitutional law’ and ‘fundamental constitutional principle’ are used interchangeably (see, for instance, paragraphs [47] and [49]). There are two potential examples of convention hardening into law.

The first, albeit left without final determination, concerns the Queen’s role in prorogation. Paragraph [30] is telling. The court reasons from the convention that the Prime Minister tenders advice to the Sovereign on prorogation that the Prime Minister has ‘a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament’. This is relied upon in the final reasonable justification analysis ([60]). The court decided nothing on whether the Queen had any personal discretion (i.e. whether she could have refused) and yet the advice and the Order in Council are treated as necessarily standing or falling together. The unstated assumption, however, seems to be that the Queen acts automatically and legally plays no part in the decision-making process. This conclusion has been aided by the Government’s hesitant attitude to the question. The Sovereign’s role as a political check on prorogation ought to have been explicitly recognised.

The second is the accountability of the executive to Parliament. Paragraph [55] deserves to be reproduced in full:

Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons - and indeed to the House of Lords - for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.

The deliberate refusal to delineate law and convention appears here at its worst (most amusingly in the appeal to democratic legitimacy). If we are supposed to accept these statements as statements of law, authority should have backed them. The absence of any cases shows that most of these elements have so far been regarded as matters going to convention only, save for the rare cases when accountability mechanisms have been provided for by statute. Nowhere does the court clarify what it is doing: augmenting the common law with rules concerning accountability.

The lack of explanation is unfortunate precedent. A short, non-exhaustive, example: the sentence ‘The Government exists because it has the confidence of the House of Commons’ may certainly be cited in favour of the proposition that lack of confidence legally ends the ministry’s commission as a matter of common law (except where Parliament provides otherwise by statute), presumably by forcing the Queen to withdraw the commission (or possibly even without her intervention); we do not, however, have any ruling on what the common law requires as an expression of the House’s lack of confidence – motion, vote on the Queen’s speech, etc. These are all juicy questions for Miller (No. 3), quite independent and additional to the FTPA framework, but useful in case the requirements of the FTPA have not been met yet.

An additional problem with paragraph [55] is that, if in the justiciability analysis we had heard that the problem was the effect of stifling parliamentary sovereignty (on the expanded version), here the talk concentrates exclusively on accountability. One may reply that expanded parliamentary sovereignty includes accountability, which is probably true according to the court, but the concept is not used consistently throughout. It is as if the first part had been written with Lord Pannick’s argument in mind, whereas the second was in response to the Scottish case.

Elliott’s rationalisation of this aspect is that, rather than turning convention into law, the court acknowledges the constitutional principle underpinning the accountability convention. This principle is that ‘there must be adequate opportunity for the executive government to account to and to be held to account by the legislature’. The newly found rule and the old convention can, for him, coexist as an expression of ‘the reality that the dividing line between the political and legal spheres of the constitution is not rigid, and that fundamental principle can and does inform both conventional practices and legal analysis’. It is hard not to note Elliott proceeds casuistically. First, no one has ever denied the existence of such a principle.  Yet the convention and the principle behind the new rule seem extremely similar. The convention also overlaps in part with the new rule. The idea that prorogation ought not to be used to limit accountability clearly originated in convention as understood by at least a part of the political spectrum. Elliott’s attempts to divorce them is both astray from reality and useless in explaining the judgment. It merely serves the agenda of enabling activism and avoiding an opportunity and legitimacy analysis.

The distinction the court draws between the ‘effect’ challenge and the improper purposes challenge looks like this. The ‘effect’ challenge is a legality challenge, arguably of the same kind one mounts when saying that on a proper interpretation, a statute does not permit a certain act or outcome. The improper purposes challenge goes to another ground of review, namely Wednesbury type I. The trouble is that, as framed by the claimants, the improper purpose looks very much like the legality challenge ([53]: to prevent Parliament from exercising its legislative functions, as far as possible, until the negotiations had been completed). I could have conceived of a ‘purpose’ not to jeopardise the negotiations, but it would have been virtually impossible for that ground to stand alone. The two grounds are really one and the same and the political matters inherent in the second also affect the first. I can think of only one reason the court would make this distinction: to sweep away the inconvenient past examples of political advantage-driven prorogations.

The applicability of the ‘effects’ ground of review in the present case is justified by expanding a similar rule previously applied to powers conferred by statute ([49]). The rule re-expressed in UNISON[5], namely the presumption that statutes are intended to always comply with common law constitutional requirements, is itself controversial and fuzzy-edged[6].  Nevertheless, in the case of prerogative powers to which common law constraints are applied, Parliament receives no opportunity to have a say ex ante as to what the constraints, if any, should be (or, in any event, not an informed one, as only in hindsight can one know the content of a judgment). It is far-fetched to equate an exercise of interpretation with silence followed by judicial law-making. The legitimacy problem is not mitigated.

A second difficulty with paragraphs [50] and [51], albeit of longer standing than the present judgment, is that we do not know for sure whether a duty to give reasons exists. We only know that by refusing to provide (satisfactory) reasons, the decision-maker invites the court to find the decision unreasonable.

A third difficulty with paragraph [51] is the sequence of steps the court proposes. First, the court determines whether the Prime Minister has remained within the legal limits of the power via the reasonable justification test. Secondly, the court decides whether the consequences are sufficiently serious to call for the court’s intervention. It is unclear whether the second step is one of justiciability, substantive determination or remedial discretion.

Elliott recognises the content overlap between the two grounds of review. He advances two reasons to explain why fears caused by this approach are misplaced. The first is that such uses of the legality principle and the requirement of justification only occur when fundamental constitutional principles or rights are at stake. The second is that, if reasons are offered, the court will not review them based on correctness but will apply a varying level of deference. He maintains this was not possible on the facts because the executive did not provide any reasons. The fundamental constitutional principles point can be dismissed, as explained below, on the ground that it is arbitrary and a carte blanche for the judiciary. The latter point feels more attractive because, as Elliott notes, that reasoning is employed with respect to rationality review. But there are two drawbacks. On the one hand, justification cases do not fully resemble ordinary rationality review and entail the legitimacy problems mentioned above more stringently than the former. On the other, as it will pellucidly appear when we address the court’s assessment of whether a reasonable justification has been provided, the application of this rule to the facts is, to put it lightly, questionable.

The court itself does not stand by the distinction it has made. Whereas paragraph [53] side-lines the improper purposes ground of review, paragraph [56] is all about the 31 October exit date. This is but another instance showing the paragraph [53] distinction is very artificial and ineffective at elucidating what the genuinely political question is.

Paragraph [57] illustrates the recurrent theme of the ‘fundamental change in the Constitution of the United Kingdom’. In Miller (No. 1), the fundamental change was triggering Art. 50. Now, the fundamental change is leaving the EU on 31 October. Then, the court says:

But that Parliament, and in particular the House of Commons as the democratically elected representatives of the people, has a right to have a voice in how that change comes about is indisputable. And the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons.

This is supposed to demonstrate that the interruption in the process of responsible government (a process which, as we have seen, has become a legal requirement), is an extreme effect on the fundamentals of democracy. All it does manage to prove is that ‘fundamental changes in the Constitution’ as perceived by the court have become a carte blanche for judicial intervention. Only time will tell what else apart from Brexit will merit designation as a ‘fundamental change’.

Their Lordships proceeded to analyse whether a ‘reasonable justification’ existed and they rejected the Government’s evidence as not disclosing the reason because it was not focused on explaining the length of the prorogation. There is constant playing with the effect/motive distinction, and then with length and effect, in order covertly to defuse arguments going contrary to the court’s narrative. But the intensity of scrutiny applied to the Government’s evidence contrasts vividly with the absence of scrutiny shown towards Sir John Major’s statements. The latter are ‘unchallenged’, ‘clear’, and believed at face value. There is no mention of the 1997 prorogation followed by dissolution, which led to a significant interruption of parliamentary sittings (and the distinction between effects and motives would presumably be resurrected here to purge Sir John Major’s improper motives of any relevance). In addition, the statement at the end of paragraph [59] (‘Sir John’s evidence is that he has never known a Government to need as much as five weeks to put together its legislative agenda.’) is meaningless: for example, in 2014 Parliament was prorogued for 20 days instead of five or six. But such matters are not given any consideration because Sir John’s evidence is simply taken as infallible. Meanwhile, the Da Costa memorandum is criticised for lack of exhaustiveness. Grudges against executive officials, feelings of being snubbed, and repulsion towards vandalism and breach of convention (pace Lord Sumption)[7] have no place as justifications for judicial reasoning.

After dispensing with rationales meant to conceal the legal change, the core criticism which can be levied against it is the lack of legitimacy and opportunity. These are not matters extraneous to judicial reasoning in such circumstances. They go to the heart of it.

In Nicklinson[8] and Conway[9], the Supreme Court and the Court of Appeal respectively had various options. They could have interpreted existing legislation in light of human rights (constitutional?) principles recognised by the HRA 1998 or by the common law. They could have issued a declaration of incompatibility in relation to the challenged statute. They did not take such a course on the express ground that it was up to Parliament to make a change, that it had opportunities to do so and it had not taken them.

Ample evidence can be adduced to justify the similarity between the situation and the prorogation case. Prorogation is an ancient legal device. It could have been restricted at any time, including in the run-up to the 2019 prorogation, when the intention to use it, the purposes, and the effects were known.  It could have been restricted after Parliament reconvened. The court, however, by refusing plainly to acknowledge the change, gave little to no consideration to such arguments. It could have exercised its discretion not to grant any remedy at all despite having recognised unlawfulness (at least in English law), which would have had the effect of suspending the consequences of voidness here, or to give a prospective remedy. It chose not to.

The court is also ill-equipped to make judgments of opportunity in such cases. This is so irrespectively of how desired a change is amongst some politicians, academics, and members of the judiciary. At paragraph [43], the court reviews the various practical constraints which impede Parliament from remaining prorogued for the entirety of its duration and concludes ‘those practical constraints offer scant reassurance’. It is difficult not to interpret this conclusion as a determination of policy impossible to assess without consequences on the party-political plane, as it would be expected of a court.

At paragraph [44], the court enumerates several statutes limiting the power to prorogue. It then asserts ‘their [the statutes’] existence confirms the necessity of a legal limit on the power to prorogue’. Whereas Parliament has no doubt thus concluded when enacting the statutes, it is by no means clear there is any objective necessity the court can find. Nor can that necessity indicate a need exists for further constraints.

It may be, per Baroness Hale, that this case was a one-off. It may also be right that the seeds of some of its pronouncements can be found in earlier recent cases. But the deficiencies in its reasoning, its opacity and the underlying judicial tendencies it embodies are apt to generate more thorough consequences, most notably a reconsideration of the appointment process and the role of judges more generally.

Footnotes


1. [2019] UKSC 41.


2. Mark Elliott, ‘The Supreme Court’s judgment in Cherry/Miller (No. 2): A new approach to constitutional adjudication’ (Public Law for Everyone, 24 September 2019) <https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/> accessed 29 September 2019.


3. See, for example, Paul Craig, ‘Prorogation: Three Assumptions’, (UK Constitutional Law Blog, 10th September 2019) <https://ukconstitutionallaw.org/2019/09/10/paul-craig-prorogation-three-assumptions/> accessed 29 September 2019. Lord Pannick’s submissions to the Supreme Court (https://www.supremecourt.uk/docs/written-case-for-mrs-gina-miller.pdf) flesh out Craig’s framework.


4. R v Home Secretary, ex parte Pierson [1997] UKHL 37. Restated in many other cases, including Miller (No. 1) [2017] UKSC 5.


5. [2017] UKSC 51.


6. See the comments on a developing justification requirement in Paul Daly, ‘Some Qualms about R (Miller) v Prime Minister [2019] UKSC 41’ (Administrative Law Matters, 24 September 2019) <https://pauldaly.openum.ca/blog/2019/09/24/some-qualms-about-r-miller-v-prime-minister-2019-uksc-41/> accessed 1 October 2019.


7. Jonathan Sumption, ‘Supreme Court’s Ruling is the Natural Result of Boris Johnson’s Constitutional Vandalism’ The Times (London, 24 September 2019).


8. [2014] UKSC 38.


9. [2018] EWCA Civ 1431.