The argument that Johnson’s decision to prorogue is not justiciable.
There are two judgements-that of Lord Doherty sitting in the Outer House of the (Scottish) Court of Sessions on September 4, and the judgement in the High Court dismissing Mrs Miller’s claim on the ground that the issue was not justiciable in a court of law-dealing directly with prorogation. Both of these support the traditional position which may be summarized as sovereignty in the United Kingdom residing in the Crown in Parliament. The definition is located in Article 1 of the 1689 Bill of Rights, referred to above, whereby, “ the pretended Power of Suspending of Laws or the Execution of Laws by Legall Authority without Consent of Parlyament is illegall”. In this traditional definition, parliament’s task is to support government until such time as parliament withdraws its consent.
The Miller case of January 2017: Lord Reed’s dissenting opinion.
This position is neatly summarized in the dissenting judgement from the January 2017 Miller case on the triggering of Article 50 before the Supreme Court. In Lord Reed’s words, ‘…the argument that withdrawal from the EU would alter domestic law and destroy statutory rights, and therefore cannot be undertaken without a further Act of Parliament, has to be rejected even if one accepts that the 1972 Act creates statutory rights and that withdrawal will alter the law of the land. It has to be rejected because it ignores the conditional basis on which the 1972 Act gives effect to EU law. If Parliament grants rights on the basis, express or implied, that they will expire in certain circumstances, then no further legislation is needed if those circumstances occur. If those circumstances comprise the UK’s withdrawal from a treaty, the rights are not revoked by the Crown’s exercise of prerogative powers: they are revoked by the operation of the Act of Parliament itself.’ In other words, government is exercising prerogative powers (in this case withdrawal from the EU) with full respect to parliament’s wishes in the 1972 European Communities Act.
Lord Reed went on to make a more general pronouncement: “controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character. Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’
Lord Reed stated that “as a matter of law, the conduct of the UK’s foreign relations falls within the prerogative power of the Crown, advised by its Ministers. This prerogative power includes the power to negotiate international treaties, to amend them, and to withdraw from them.” He quotes the late Lord Denning:“The treaty-making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts.” The compelling practical reasons for recognizing this prerogative power to manage international relations were identified by Blackstone in his Commentaries on the Laws of England (1765-1769), Book I, Chapter 7, “Of the King’s Prerogative”). “This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength, and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford.” Lord Reed continues, “Confiding foreign affairs to the Crown, in the exercise of the prerogative, does not, however, secure their effective conduct at the expense of democratic accountability. Ministers of the Crown are politically accountable to Parliament for the manner in which this prerogative power is exercised, and it is therefore open to Parliament to require its exercise to be debated and even to be authorised by a resolution or legislation….The Crown can, in addition, seek Parliamentary approval before exercising the prerogative power if it so chooses. There is however no legal requirement for the Crown to seek Parliamentary authorisation for the exercise of the power, except to the extent that Parliament has so provided by statute”.
In the case in question, Lord Reed avers, the following motion was agreed by the Commons on 7 December 2016: “That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on Parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke article 50 by 31 March 2017.”
In conclusion, the dissenting judges affirm that (my italics) “the article 50 process must and will involve a partnership between Parliament and the Executive. But that does not mean that legislation is required simply to initiate it. Legislation will undoubtedly be required to implement withdrawal, but the process, including the form and timing of any legislation, can and should be determined by Parliament not by the courts. That involves no breach of the constitutional principles which have been entrenched in our law since the 17th century, and no threat to the fundamental principle of Parliamentary sovereignty.”
The judgements of the Outer House of September 4 and of the High Court September 11, 2019.
A very similar verdict was made on September 4, 2019, by Lord Doherty, sitting in the Outer House of the (Scottish) Court. Doherty concluded that the decision to prorogue parliament was not a matter for the courts. The decision to prorogue could not be measured against legal standards as it was matter of high policy and political judgment, and was therefore for politicians to settle.“In my opinion, there has been no contravention of the rule of law. Parliament is the master of its own proceedings. It is for parliament to decide when it sits. Parliament can sit before and after prorogation.” “The power to prorogue was a prerogative power,” and “the executive was accountable to Parliament and to the electorate for the advice”. There was nothing to support the claim, Lord Doherty affirmed, that the Prime Minister’s action had been in breach of the Claim of Right of 1689 (the Scottish version of the Bill of Rights). Prorogation, he went on, did not frustrate the will of parliament in its legislative activities. In addition, the fact that parliament was not sitting for 5 weeks did not have any effect on the rights of EU individuals. The government was concerned with prorogation in this decision, and not with the requirement of Article 50 or of exiting the EU – (a challengeable view: the main task of Prime Minister Johnson’s government was to exit the EU by October 31). If, Lord Doherty asserted, this decision to prorogue was justiciable, it would mean that “political judgements may be a relevant consideration.”
A week later, on September 11, the three senior judges in England and Wales – Lord Burnett of Maldon, the Master of the Rolls, Sir Terence Etherton, and the President of the Queen’s bench division, Dame Victoria Sharp – found against Mrs Miller’s claim on the ground that the issue was not justiciable in a court of law. Their reasoning was as follows: “It is now well established, and was common ground before us, that decisions and actions of the Executive are not immune from judicial review merely because they were carried out pursuant to an exercise of the Royal Prerogative.” Until the provisions of the Constitutional Reform and Governance Act 2010 relating to the ratification of treaties, and the provisions of the Fixed-term Parliaments Act 2011 regulating the holding of general elections, “prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not…susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.” Since then, “the courts have now accepted the justiciability of decisions of the Executive relating to the grant of pardons, foreign affairs and national security”.
But the High Court does not accept the argument that the jurisprudential stage has now been reached where there is no longer any exercise of common law prerogative powers which is immune from judicial review. The High Court records that “The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter ( my italics) and in particular upon whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases.”
“The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of “high policy” or are “political”. In this way the courts, whose function it is, have marked out the separation of powers between the judicial and the executive branches of government, a fundamental feature of our unwritten constitution. In the present case the Prime Minister contends that the advice to Her Majesty to prorogue Parliament, which was given effect in the Order in Council of 28 August 2019, was political….”
The refusal of the courts to review political questions is well established. The High Court cited Lord Bingham (para 29) (my italics) : “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.”(my italics) “It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially of great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the Crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude. Lord Bingham affirmed that “The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.”
The High Court concluded that (my italics) “The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. 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. We have summarised them extensively already. 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 in Ms da Costa’s submission 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.”
To summarise, the argument in the courts that Johnson’s decision was not justiciable invoked the constitutional principles entrenched “in our law since the seventeenth century”. The decision to prorogue was not a matter for the courts. This was so because all components of the decision were distinctly political. “The refusal of the courts to review political questions is well established”. As Lord Reed affirmed, “legalization of political issues is fraught with risk, not least for the judiciary”.
The arguments that Johnson’s decision to prorogue is justiciable.
There are three judgements-those of the cases from September 11 2019 in the High Court and of the Inner Court of Sessions, and in the Supreme Court on September 24 2019 -in which the arguments were laid out to the effect that Johnson’s decision to prorogue was justiciable.All three emphasized that there were limits to prerogative powers, citing in support the 1610 Case of Proclamations, as well as the 1689 Bill of Rights. The Case of Proclamations is of particular interest in this line of argument because it posited pre-existing rights that could not be overridden by the Monarch, in this case James I of England and VI of Scotland, who brought with him to London the Scottish Roman law tradition of executive authority.
The Miller case of January 2017.
The Supreme Court concluded that Ministers could not lawfully give notification under article 50 (2) unless an Act of parliament authorised them to do so. Parliament had voted to enter the then EEC, and parliament had to be able to vote on the government’s invoking of Article 50 to leave the EU. This was so because the government could not invoke the prerogative which informed the conduct of its foreign affairs; the 1972 Act in effect opened a “conduit pipe” into which European law flowed into domestic UK law. “As we have said, withdrawal is fundamentally different from variations in the content of EU law arising from further EU Treaties or legislation. A complete withdrawal represents a change which is different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. It will constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act. ” They continued that the “existence of the conduit pipe, as opposed to the contents which flow through it, can be changed only if Parliament changes the law.” This was so because the prerogative did not extend to domestic affairs affecting domestic rights and duties enjoyed in the Crown’s jurisdiction. In matters of domestic law the Crown in parliament was sovereign.
The High Court , and the Court of Sessions cases of September 11 2019.
The High Court judgement of September 11 on the prorogation decision found in favour of the government, but the case for its justiciability was powerfully advanced by Lord Pannick. The heart of his case, he argued, is that parliament is supreme, and the Crown is the junior partner. Lord Pannick argued that “The prime minister’s reasons for advising on a five-week prorogation were improper in that they were infected by factors inconsistent with the concept of Parliamentary Sovereignty, in particular his belief that Parliament does nothing of value at this time of year and his concern that Parliament might take steps which would undermine the government’s negotiating position with the EU.” “If (such a) judgment … were to be upheld, the courts would have no power to review a Prime Minister’s advice to prorogue Parliament for a period of six months, one year or longer.”“The decision breaches the legal principle of Parliamentary Sovereignty because the effect of prorogation is to remove the ability of Parliament to enact legislation as it sees fit on issues relating to the arrangements for this country to leave the European Union, when time is of the essence, because of the existing deadline of 31 October 2019.”
Lord Pannick based his argument on three postulates:
1.Parliamentary sovereignty entails the right of Parliament to make any law it sees fit and is therefore ‘engaged’ by a decision of the Executive to advise the Queen to exercise a prerogative power in order to ‘prevent or impede’ Parliament from sitting and making law as it thinks appropriate.
2.The facts of the case show there has been manifest abuse: (1) because of the exceptional length of the prorogation, during a critical period, when time is of the essence; (2) because the Prime Minister provides no reasonable justification on the facts for requiring a prorogation of such exceptional length; and (3) because the evidence demonstrates that the decision of the Prime Minister is infected by ‘rank bad reasons’ for the prorogation, namely that parliament does nothing of value in September and the risk that parliament will impede the achievement of his policies, both of which demonstrate a fundamental failure on the Prime Minister’s part to understand the principle of Parliamentary Sovereignty.
3. Lord Pannick in effect argues that there are no areas of prerogative power into which the courts may not inquire. On this basis, the court may decide that in this case there is no abuse of power. But such a verdict would not deny that the court has no jurisdiction to review the decision under challenge.
In effect, Johnson’s motive for proroguing was, Lord Pannick asserted, “to silence parliament for that period”. This extended suspension of debate was carried out for an “improper purpose” in order to “avoid the risk of parliament undermining the policies of his executive”. The justices were entitled to draw adverse inferences ( my italics) from the prime minister’s failure to provide a witness statement to the court. “ The basic principle is that parliament is supreme. The executive is answerable to parliament. It must also apply to cases. This is a unique case. This has never occurred before. It must apply to cases where the executive takes decision with the purpose or affect of removing parliament’s ability to legislate.”
Pannick’s arguments did not convince the senior judges of the High Court. But on the same day – September 11 – that they delivered their judgement, Lord Calloway, the presiding judge, in the (Scottish) Court of Sessions, stated that Lord Doherty had erred in concluding that the Order in Council of 28 August 2019 proroguing the Union Parliament was not justiciable. Prime Minister Johnson’s action was disproportionate to any justification advanced, and the courts had a responsibility, when circumstances required, to protect Parliament from an abuse of Government power. “ The effect of the prorogation was to insulate the Government entirely from any accountability to Parliament. Although the power to prorogue lay with the Prime Minister, the lawfulness of the exercise of that power lay with the courts.” Parliamentary scrutiny of government policy was “a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be true, it would be unlawful.”
Whether or not a matter was justiciable depended on whether decisions were made “on the basis of legitimate political considerations”. Johnson’s prorogation decision was not legitimate because the real reason for the decision was to stymy parliament’s ability to scrutinize government” “The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake.” This conclusion on the true reason stemmed from a series of factors:
- prorogation was sought in a clandestine manner during a period in which litigation concerning the prospect of prorogation was ongoing;
- the decision to prorogue in the manner sought was taken against the background of the discussions in which it was being suggested that MPs, and thus Parliament, would be unable to prevent a no deal Brexit if time was simply allowed to elapse, without further legislation, until the exit date.
- The government failed to provide adequate support of its reasoning for “what is, in modern times, an extraordinary length of time (5 weeks instead of about 7 days) ”. “The court .. is merely holding that a particular attempt to restrict the available days is unlawful.”
“Procedural manoeuvres, Lord Calloway stated, are the stuff of politics, whether conducted in Parliament or in lesser bodies. However, when the manoeuvre is quite so blatantly designed “to frustrate Parliament” at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful.” “What has led me to conclude that the court is entitled to find the making of the Order unlawful is the extreme nature of the case.” The purpose of Prime Minister Johnson’s prorogation was “improper”.
Lord Drummond, in his supporting opinion in the Court of Sessions, stated that (my italics) “I have come to the conclusion that the only inference that can properly be drawn on an objective basis is that the government, and the Prime Minister in particular, wished to restrict debate in Parliament for as long as possible during the period leading up to the European Council meeting on 17-18 October and the scheduled date of Britain’s departure from the European Union” “I accordingly conclude that the decision to prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of the prerogative power. It follows that the prorogation was ultra vires.”
The Supreme Court judgement of September 24, 2019.
The final, and crucial judgment on Prime Minister Johnson’s decision was delivered in the Supreme Court by Lady Hale on September 24, 2019. Lady Hale summarised the timeline of events and the judgements for and against the justiciability of the decision. She went on, and I quote at length:
“Because of the importance of the case, we convened a panel of 11 Justices, the maximum number of serving Justices who are permitted to sit. This judgment is the unanimous judgment of all 11 Justices.
- The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”. However, in considering prerogative powers, it is necessary to distinguish between two different questions. The first is whether a prerogative power exists and if so its extent. The second is whether the exercise of that power, within its limits, is open to legal challenge. This second question may depend upon what the power is all about: some powers are not amenable to judicial review while others are. However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that. This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.
- The second question, therefore, is what are the limits to that power? Two fundamental principles of our Constitution are relevant to deciding that question. The first is Parliamentary sovereignty – that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second fundamental principle is Parliamentary accountability: in the words of Lord Bingham, senior Law Lord, “ the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict. For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has 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. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution. If the prorogation does have that effect, without reasonable justification, there is no need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.
- The third question, therefore, is whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October. Proroguing Parliament is quite different from Parliament going into recess. While Parliament is prorogued, neither House can meet, debate or pass legislation. Neither House can debate Government policy. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch after the Queen’s Speech. During a recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual. This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect has been put before the court. The only evidence of why it was taken is the memorandum from Nikki da Costa of 15th August. This explains why holding the Queen’s Speech to open a new session of Parliament on 14th October would be desirable. A. It does not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. B. It does not discuss the difference between prorogation and recess. C. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. D. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.
The next and final question, therefore, is what the legal effect of that finding is and therefore what remedies the Court should grant. The Court can certainly declare that the advice was unlawful. The Inner House (Scotland) went further and declared that any prorogation resulting from it was null and of no effect. The Government argues that the Inner House could not do that because the prorogation was a “proceeding in Parliament” which, under the Bill of Rights of 1688 cannot be impugned or questioned in any court. But it is quite clear that the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end. This Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices. It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next.”
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