The suspension of parliament on Wednesday 28 August, at time of political crisis, is now the subject of intense legal scrutiny across the United Kingdom. Lawyers for Gina Miller have lodged an application for judicial review, and are expected to argue that Boris Johnson’s advice to the Queen is an improper use of power, designed to curtail the legislature, resulting in infringement of the constitutional bedrock of parliamentary sovereignty. A hearing in the Scottish courts is taking place today and it has also been reported that the Northern Irish courts will consider tomorrow an application for an urgent injunction to compel Boris Johnson to reverse his advice to the Queen.
These cases will all be hard fought and will present difficult challenges for the judiciary: judges will be hesitant to interfere in the political maelstrom but will also be conscious of the need to ensure parliamentary sovereignty is preserved.
In the short term, whilst judicial caution may prevail in these cases, legal scrutiny of Brexit is here to stay. With “Exit Day” looming, there have been repeated calls from both industry and campaign groups for a public inquiry into Brexit. Yesterday’s suspension of Parliament will no doubt lead to a strengthening of their resolve. Meanwhile, the consistent position of the government – that no Inquiry should be established – is likely to remain resolute.
Interestingly, the decision not to undertake a public inquiry into concerns about alleged improper influencing of the referendum outcome, is already the subject of a legal challenge by the “Fair Vote” group. And, hot on the heels of the Miller case, a hearing on that is reported to be scheduled for early October, just a matter of weeks before Exit Day.
Here, we glance at a few of the legal issues which are likely to arise, surveying recent legal challenges to decisions not to hold public inquires, as well as the ministerial power to hold a public inquiry, and the all-important terms of reference.
Challenges to decisions not to hold public inquiries
Successful challenges to decisions not to hold public inquiries have been relatively rare in recent times. Those cases have tended to involve, at least to some extent, Convention Rights and the State’s discharge of the State’s investigatory obligations under Articles 2 and 3. See, for example, the Supreme Court’s judgment of earlier this year in Finucane brought by the widow of murdered solicitor Patrick Finucane. The court there held that despite having created a legitimate expectation that an inquiry would be held, it was open to the state to depart from that expectation. It was however held that the state had failed to comply with its investigatory obligations under Article 2.
Litvinenko, brought by the widow of Alexander Litvinenko, who was also found to have been murdered was another such challenge. The reasons given by the Secretary of State for refusing a public inquiry were carefully examined by the Divisional Court in its judgment. There the court concluded that there had been compliance with the Article 2 investigatory obligation on the facts but that the other reasons given by the Secretary of State were insufficient to justify a refusal to undertake a public inquiry. The decision was quashed.
Following this it would have (legally) remained open to the Secretary of State to make the same decision again but to give better reasons for doing so. But arguably because of the strong views expressed by the court, and the prevailing political wing, the Secretary of State subsequently decided to hold a public inquiry which reported in early 2016.
The context is however very different for the Fair Vote campaigners, making their legal challenge more difficult.
The discretion to hold a public inquiry
Even if the Fair Vote legal challenge is successful, a public inquiry is not guaranteed. This is due to the discretion given to Ministers as to whether to hold an Inquiry and as to what form it should take. Political, rather than purely legal, considerations are more likely to lead to a public inquiry being established.
The government will be most acutely alert to promises made by the opposition to hold an inquiry once elected. These have led to the establishment of inquiries in the past, with the post-legislative scrutiny of the Inquiries Act 2005, providing some interesting examples.
In the context of Brexit, the opposition’s intention is not yet clear, but it is worth noting, Sir Keir Starmer’s reported recent letter to the Cabinet Secretary about the relevance of spending decisions being properly documented “in the event of any future public inquiry or investigation into this matter.”
Terms of reference of a public inquiry
Even if a decision were reached that an inquiry should be set up, there will be a number of very important issues to decide before it is set up. Most important, are the “terms of reference” under which a public inquiry is established, which are widely recognised as being a crucial factor in determining an inquiry’s length, complexity, cost and success. But in order to draft those effectively, it will be necessary to have a clear view as to what the purpose (or, more likely, purposes) of the Inquiry are to be.
At the moment a large number of possibilities exist, including the referendum campaigning process, no-deal preparations (or lack of), and now the prorogation of parliament and its constitutional impact; it is equally possible to come up with good reasons to justify investigating all of them fully. As seen in the Saville Inquiry (Arms to Iraq) and the Chilcot Inquiry (the Iraq Inquiry), political decisions of national significance are very much open to the scrutiny of a public inquiry.
In conclusion, a number of challenges await, but perhaps the greatest will be for any future Inquiry Chair, who will the unenviable task of balancing political expectation with decisions about how to manage the process efficiently and effectively within the legal framework of the Inquiries Act 2005 (and related rules). Such a process may very well lead to there being a greater focus on making forward-looking recommendations than establishing responsibilities for each perceived failing which occurred throughout such a complex and multi-faceted process.