Since prorogation ‘never happened’ what happens next?
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Now the Supreme Court faces a daunting challenge – confirming the boundary line between politics and law. The stakes are high. The constitutional equilibrium between government and parliament is already contested. Now the courts are involved, the boundaries of, and balance of power between, all three pillars of the British constitution are under review.
Judicial review (JR) is a means by which private persons can hold the state to account by ensuring that it acts lawfully and without abusing its power. Occasionally, one part of the state challenges the lawfulness of the actions of another. The judicial reviews over the prorogation of parliament take this to an extreme, in that they variously pit central against devolved governments; current against former prime ministers; and the UK executive against the official opposition and almost 80 individual UK parliamentarians. Even some of the barristers representing the parties are members of the House of Lords.
The subject matter is arguably just as political as the parties. The question at issue is the propriety of Boris Johnson’s advice to the Queen, which caused her to exercise her power to prorogue parliament. Whether the advice was proper may depend on the conclusions judges reach about the motivation behind it.
The UK courts recognise that there are limits to their competency, and that it is not appropriate for them to decide questions where the subject matter comes down essentially to political judgment. Such cases are said to be ‘non-justiciable’ (incapable of determination by judges) because the courts lack clear and manageable standards by which to adjudicate them. In A v Secretary of State for the Home Department, Lord Bingham explained that:
“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.”
The orthodox view is that the prorogation of parliament is a purely, or at least highly, political matter – and therefore ordinarily unlikely to be justiciable. (An analogy might be drawn with the dissolution of parliament for an election, which was understood to be non-justiciable before the Fixed Term Parliaments Act 2011).
Decisions on justiciability might, however, be influenced by the surrounding circumstances. The prorogation was yesterday described by former UK Supreme Court justice Lord Sumption on the BBC’s ‘World at One’ as “politically outrageous”. The current political turmoil and sense of outrage is exactly the kind of febrile atmosphere that might tempt the courts to explore, and take a robust view of, the boundaries of their oversight of government power rather than maintaining a conservative approach to justiciability.
In the case brought by Gina Miller and others in England and Wales, a divisional court comprising three senior judges examined whether the decision of the prime minister to seek the prorogation of parliament was justiciable in the courts, or whether it was an exclusively political matter. The court confirmed that prorogation is a prerogative power and that by constitutional convention the queen invariably exercises that power when advised to do so by the prime minister. The Claimants argued that there is no longer any prerogative power which is non-justiciable, merely areas in which the courts must proceed with caution. However, the court rejected that contention.
The court held that the decision that parliament should be prorogued and the advice given to the queen were non-justiciable (at ) because:
“They were inherently political in nature and there are no legal standards against which to judge their legitimacy. The evidence shows that a number of considerations were taken into account […] They included the need to prepare the Government’s legislative programme for the Queen’s Speech, that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations, that a number of days falling within the period of prorogation would ordinarily be recess for party conferences, and that the current parliamentary session had been longer than for the previous 40 years. The Prime Minister had also been briefed […] that it was increasingly difficult to fill parliamentary time with appropriate work and, if new bills were introduced, either the existing session would have to continue for another four to six months at a minimum or they would be introduced knowing that they would fall at the end of the session. All of those matters involved intensely political considerations.”
Furthermore, all the claimants’ criticisms of the duration of the prorogation (at ):
“…face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between Parliamentary sessions. There is not even a constitutional convention which governs the matter…”
The court held that parliament may be prorogued for many and various reasons and purposes and it is not possible to determine how much time would be legitimate to carry such purposes through. Nor did the court consider there to be any measurable standard for assessing how much time is required properly to hold the government to account. Finally, the court considered that arguments based on the need to uphold the fundamental principle that parliament is sovereign had to be read in light of another essential constitutional principle – that of the separation of powers (i.e. that the courts, the government and parliament all have different areas of responsibility). With that in mind the judges concluded (at ) that the courts should be “slow indeed to intrude” into the relationship between the executive and parliament.
The judgment can be read in full here.
When it was first heard, the case in Scotland was dismissed for similar reasons. Prorogation was determined to be a matter of high policy and political judgment, lacking measurable standards against which it could be assessed legally, and was therefore non-justiciable. An appeal to the Inner House of the Court of Sessions led, however, to prorogation being held unanimously to be unlawful. The full judgment is not yet available, but the summary shows that Scotland’s highest appellate court came to a very different conclusion from the divisional court in England and Wales.
Lord Carloway determined that prorogation would be unlawful if it was done for an improper purpose, i.e. to stymie parliamentary scrutiny of the executive. Such an act would undermine good governance, which is a constitutional principle underpinned by democracy and the rule of law.
Contrary to the divisional court’s view that no measurable standard existed for assessing questions like how much time was required to hold the government to account, the court found that there were indeed standards by which such matters could readily be assessed. Lord Brodie considered that, particularly in light of the duration of the prorogation:
“This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference."
Lord Drummond Young considered that a valid reason had not been demonstrated for the prorogation. The circumstances, “particularly the length of the prorogation, showed that the purpose was to prevent [parliamentary] scrutiny” of executive action, and documents showed no other explanation.
There is a clear difference of opinion between the highly experienced divisional court in England and Wales and the highest civil court in Scotland. The former found a lack of clear and manageable standards by which to adjudicate the case, and considered that it was the function of political and not judicial bodies to resolve such matters. The latter considered that it was to be inferred from the evidence presented to it and the duration of the prorogation that the prime minister’s purpose was improper. The Scottish court was therefore prepared to adjudicate and did so in favour of the claimants. The UK Supreme Court will have the final say and it appears that its decision will come down to whether more than four out of nine judges take a broad or a narrow view of the constitutional role of the courts in supervising government power.
This is a genuine legal issue which is not resolved by past cases. As the judgments described above show, independent judges acting in good faith have legitimately differed over the answer. Whatever concrete evidence can be presented to the Supreme Court about the motivation behind the advice to prorogue might prove crucial. We will consider the outcome once the final judgment is available.
Nick recently published a blog 'Since prorogation ‘never happened’ what happens next?' covering everything you need to know about the legal implications. We regularly represent parties in judicial review challenges. Our lawyers also blog regularly about public law matters, including in relation to the impact of Brexit. Read our Public Law blog and Brexit blog for the latest commentary.
Nick Wrightson is a Senior Associate in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
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