25 September 2019

The Supreme Court has been the latest battleground in the confrontation between Parliament and the government over Brexit, but Raphael Hogarth argues that the court’s decision has far deeper constitutional implications.

The Supreme Court has ruled that it was unlawful for the prime minister to advise the Queen to prorogue Parliament. All 11 judges who heard the case reached a single, unanimous decision: in the eyes of the law, the prorogation never happened. MPs now return to Westminster.

It is an extraordinary decision, with far-reaching implications for the UK system of government and the balance of power between its three branches: executive, legislature and judiciary.

The Supreme Court decided that the prorogation was unlawful

The court had two questions to decide. First, the judges had to determine whether the prorogation was justiciable: was it the role of the court to rule on whether the prime minister’s decision was lawful?

The Supreme Court decided it was. It is a question of law, the Supreme Court said, where the limits of the power to prorogue lie. If the power had no legal limits at all, then the prime minister would be able to suspend Parliament for as long as he pleased – and that, said the court, would be inconsistent with parliamentary sovereignty.

Second, the court had to decide whether this particular prorogation was lawful. The court did not take a view on Boris Johnson’s motive for prorogation; instead it focussed on the prorogation’s effect.

Because this prorogation was so long, and took place in the immediate run-up to the date on which the UK is scheduled to leave the EU, the court decided that prorogation had the effect of “frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.” The prorogation could not be justified by the prime minister’s desire to bring forward a new legislative agenda in a Queen’s Speech, the court said, because he could have achieved that with a much shorter prorogation.

The Supreme Court has fortified executive accountability to Parliament with the force of law

The first rule of the constitution is that Parliament is sovereign: Parliament alone makes laws, and the rest of us must follow them.

However, the Supreme Court’s account of Parliament’s constitutional role goes much further than that, and goes much further than previous judgments.

It said that a second constitutional principle – ministerial accountability to Parliament – is just as fundamental to our constitution. Ministers answer parliamentary questions, appear before committees, and submit secondary legislation to scrutiny by parliamentarians. All of that protects citizens from the arbitrary exercise of executive power.

That Parliament performs those roles might, before this judgment, have been thought a statement of convention or common practice. It is now clear that Parliament’s role in holding the government to account is part of our constitutional law – and if the government threatens that accountability, then the courts will move to protect it. In the long term, this may be the judgment’s biggest contribution to our understanding of the UK constitution: the court has fortified executive accountability to Parliament with the force of law.  

The Supreme Court is behaving like a “constitutional court” whose role is to protect democracy

Because Parliament is sovereign in the UK, and the UK has no codified constitution, the Supreme Court does not perform the most politically sensitive role of many other supreme courts around the world: to rule that laws passed by the legislature are “unconstitutional”.

Nevertheless, the Supreme Court has approached this case armed with the toolkit of a constitutional court. The judges appealed to first principles as much as statutes or judicial precedents in order to reach their decision.

The court said that the prime minister’s decision had “an extreme effect upon the fundamentals of our democracy”. It explained the importance of Parliament’s scrutiny functions by noting that the support of MPs is the government’s sole source of “democratic legitimacy”. It noted the risk that, in a long prorogation, “responsible government” would be “replaced by unaccountable government”, which it described as “the antithesis of the democratic model”.

The court did not have to approach the case in this way. It could have focussed more narrowly on precedent and legal doctrine. The judges’ language and reasoning – as well as their ultimate conclusion – shows that the Supreme Court now sees itself as more than a court of last resort whose job is to resolve the hardest legal quandaries.

It considers itself a guardian of democracy in the UK, policing the boundaries of constitutionally proper behaviour. Any ministers tempted to defy constitutional norms or conventions should beware: the Supreme Court has put them on notice.

Comments

I think this short essay overstates the case. Arguably Miller (no 2) is no more than the application of well-known constitutional principles. This view is supported by the brevity and unanimity of the judgment.
We have known since 1610 (Proclamations - sorry I am not able to italicise) that the sovereign has no prerogative save that allowed by law. We also know ( eg GCHQ - CoCSU V Minister Civil Service; M v Home Office) that a minister is subordinate to Parliament. It is unsurprising to learn that the Government is subordinate to Parliament. The Government cannot make law by itself; indeed if it wants to make secondary legislation (by virtue of statute) it has to lay it in a specific way dependent on the law set by Parliament.
As a useful example : The Government - either in the form of the King (Ship Money; Saltpetre) or a modern Government may not set tax without a Money Bill / without the approval of Parliament.
So the general principle is that the Government may not act without the approval of Parliament - it need legislation and /or Ministers are scrutinised - Committees, Select Committees etc or Questions - some form of scrutiny.
There are, however, some circumstances in which the Government or a Minister may act without scrutiny. These, one might say, are matters of "High Politics" - where the Government needs to do something in the national interest - national security is the obvious example. This explains GCHQ - the Minister for the Civil Service issued a certificate that banning TUs at GCHQ - was in the interests of national security. The Judicial Committee of the House of Lords (the old Supreme Court) held that it could not go behind the Certificate. The HL set out the list of "High Politics" which applied in 1984 - OK this list has now been modified - Chagos Islands; Craig and Bentley; Fixed Term Parliament Act etc.
If I am correct so far - the basic principle since 1610 has been that the Govt must act within the law (the SC backed this up with Entick v Carrington) - and Parliament must be able to 'check this out'. Now Mr Johnson could (I wish that I knew how to italicise that) - I repeat - could have sought to justify that the lack of scrutiny was a matter of 'High Politics'. He could have submitted evidence that the matter was of such national importance that the Govt/Minister should not be subject to scrutiny.
He might have succeeded in that. Indeed my prediction - for what it is worth- is that the SC would have held that the matter was justiciable - but there was an arguable case (and if Mr Johnson had submitted evidence, he might have been able to argue it) that it was high politics and therefore the particular decision could not be challenged.
However Mr Johnson (politics/personal opinion warning !! - in his insufferable arrogance ) decided not to submit evidence. The SC therefore could only conclude - in the absence of evidence- that the decision was made for personal or party advantage, rather than in the national interest. The Prime Minister's constitutional DUTY is to act in the national interest. (Whilst we might disagree with Mrs Thatcher's view that banning TUs was in the national interest - it was a value judgement which can properly be made by a PM and unless she could be seen to have acted for an improper purpose - she could not be challenged. She said 'national security' not 'I hate trade unions'.)
All of this leads me to two conclusions
a) the SC was acting in accordance with 400 years of constitutional law
b) Mr Johnson could have put up arguments to show that he was acting properly. Now - whether this was for party political advantage (part of the 'people against parliament, people against the courts/enemies of the people' "rigmarole' (to coin a word!!) or because he is simply an arrogant man - is a matter for speculation. I am sure we all have a view - and, notwithstanding my earlier comments - I think that it was a mixture of the two.
But what do I know
bob Watt, BA, BCL, PhD Professor of Law (retired!!)

A succinct summary. Thank you.

Couple of comments.

First, once Norman St John Stevas created select committees in and just after 1979, they became integral to what Parliament does. They are not a creature of convention.

Second, I THINK that the Supreme Court may strike down a law if inconsistent with an international obligation, EU law (which is supreme, as Lord Denning pointed out long ago) being an obvious example. (I'm open to correction on this.)

Third, while the Supreme Court may have used the toolkit of a constitutional court, and behave as the effective arbiter of the unwritten constitution, it is not itself a constitutional body, as it would be in countries with a written constitution, but merely a creature of statute. Parliament could abolish it tomorrow. The sabre-rattling of some Brexiteer MPs shows that they are well aware of that.

As everyone should, I accept the decision of the Supreme Court but vehemently disagree with their reasoning. As far as I am concerned, the previous actions of MPs and now this ruing from the Supreme Court will have the folowing effects:

1. Because the majority of MPs supported an Opposition Motion, subject to the whims of MPs, ministers could be forced to pubish any confidential legal or other advice rather than ave it remain confidential - as has been the case until now;

2. Because of the "Cooper-Letwin" and "Benn-Burt" Acts, the conduct of government foreign policy and the negotiation of international agreements could now be subject to the control of MPs rather than being the sole prerogative of the democratically-elected government - as has been the case until now; and, more importantly,

3. Because of the Supreme Court's ruling, any future progrogation of Parliament could now be subject to a legal challenge if the majority of MPs or someone in business opposed to ongoing or proposed government policy considers that the reason given by the government of the day for any prorogation is unacceptable.

So yes, the Supreme Court has altered the Consitution, and the government of the country could now be held to ransom for purely poitical or personal gain.