The Supreme Court judgement: new law or constitutional aberration?
I will not pretend to my own position: the root of the British uncoded Constitution is the Bill of Rights of 1689, and subsequent court judgments and statutes. This states that the Crown in Parliament is sovereign, answerable to the electorate in general elections and to the British people in referenda. Major amendments to the constitution, as this judgement provides for, are for the Crown in parliament to shape, not for judges. In addition, as I shall argue here, this judgement is on very shaky ground, as forwarned by Lords Reed, Doherty, Burnett-the Lord Chief Justice-, the master of the rolls, Sir Terence Etherton, and the president of the Queen’s bench division, Dame Victoria Sharp. It is also very poorly argued. That is why the photo on the cover page shows a placard outside the House of Commons calling for a “Halt to the Coup”. Which coup? I ask-Johnson’s or the judges?
The Supreme Court judgement of September 24, printed in Part III, followed from the Advocate General’s appeal against the Scottish decision of September 11, and Mrs Miller’s appeal against the High Court’s decision of the same day. In what follows I will highlight the key points of the judgment: the text is available here on the internet: https://www.bailii.org/uk/cases/UKSC/2019/41.html
The opening paragraph is not encouraging.
Paragraph 1 leads off with the following argument ( I italicize all relevant points) : “It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”.”
Let is take these points one by one. There are a number of hostages to fortune in this statement.
- First, the relevant cases have been brought before the courts by militant Remainers, and the judges are finding in their favour. Judging in favour of one side or the other in the context of the ongoing and fraught politics of Brexit could not but be political. Had retaining the independence of the judiciary been a priority, it might have been sensible to follow the High Court’s position, and declare the case non-justiciable.
- Second, the issue about whether the advice is lawful or not is an affirmation that the judges may take a position on the purpose/reasons/motives informing political judgements. Their opinion was that the Prime Minister intended to stymy Parliament’s ability to hold his government to account. As I shall demonstrate, there was no sufficient evidence for the judges to hold such an opinion.
- Third, such circumstances have arisen before: they arose in acute form at the time of Henry VIII’s break with Rome, which constitutes the foundational act of the modern British state. Paragraph 30 refers to “ modern constitutional practice”. Why do the judges fail to define “modernity”, one may ask? They could have chosen to identify the move to universal suffrage in 1918 as the start of modernity. In fact, both sides in the court proceedings about prorogation refer to precedents from the seventeenth century – the crucible century of British constitutionalism. In paragraph 44, the judges even mention a statute from 1362, placing requirements on sittings of Parliament, as confirming the ” necessity of a legal limit on the power to prorogue”.
- Fourth, the judges state that such circumstances are unlikely ever to arise again. This is a statement regarding a hypothetical future, which may or may not recur. The judges are betting they may not recur- a curious wager on the future for judges to make in a case of this kind. They also state that this case “ is a one-off” . But is it? The circumstances of the United Kingdom’s relations with the continent are as perennial as its geography.
In short, paragraph 1 is not an encouraging opening.
The judgement then goes on to discuss: what is prorogation? (paragraphs 2-6); the run-up to this prorogation (paragraphs 7-14); this prorogation (paragraphs 15-22), including the August 28 Balmoral visit, and the Nikki da Costa memorandum to the Prime Minister; then these proceedings (paragraphs 23 to 27), starting out with the following statement (again, the italics below are mine):
“ Meanwhile, on 30th July 2019, prompted by the suggestion made in academic writings in April and also by some backbench MPs, and not denied by members of the Government, that Parliament might be prorogued so as to avoid further debate in the run-up to exit day, a cross party group of 75 MPs and members of the House of Lords, together with one QC, had launched a petition in the Court of Session in Scotland claiming that such a prorogation would be unlawful and seeking a declaration to that effect and an interdict to prevent it. “
Presumably, “academic writings” refers to the Laws and Ekins Policy Exchange proposal, listed on the timeline in Part I of this analysis. Note that paragraph 23 makes the statement that “some backbench MPs” allege that “Parliament might be prorogued to as to avoid further debate in the run-up to exit day”. This statement deserves to be placed alongside Mandy Rice-Davis’ famous statement when asked in court about Lord Astor’s denial of ever having met her. Rice-Davis said, “well, he would, wouldn’t he”. Her statement applies well to “some backbench MPs”: it could not seriously be expected that they would say anything but to affirm that the government wanted to stymy Parliament from holding “the executive” to account. The judges phrase this conviction as if it were a hypothesis. The conviction is that the article’s content became government policy, to wit, to prorogue until October 31, the deadline imposed by the EU for deciding for or against Brexit. The conviction, the judges declare, was “not denied by members of the government”. Which members? On what precedent was the government supposed to be revealing its intentions? Were other intentions at play? Silence.
Let us play the same game on the judges as they play on the government. The working hypothesis is that the judges considered prorogation until October 31 to be on the cards. The government, though, denied this by words and action. (see Johnson’s first speech, in front of 10 Downing Street on July 24 2019. The speech begins at 8’ 34’’ on this url: https://www.youtube.com/watch?v=mYxokaCaKjw). Johnson declares that his objective is to reach a deal, not to exit with a no deal.
Do the judges consider that the Prime Minister is a liar? As the Prime Minister points out, “the people are our bosses”, in, other words, the ultimate sovereign and judge in the UK is the people. What is the penalty, one may ask, of lying to the British people? One answer is that the half-truths spun by Prime Minister Heath in 1972, that the UK by joining the EEC, would preserve “essential sovereignty”, were visited with the thunderclap of the vote of June 23, 2016. Heath was not prepared to admit his conviction that the EEC was supranational in intent. In other words, he told a half-truth, the synonym for which is “little white lie”.
It is not a good idea to lie to the British people. It is also purely an unfounded assumption to make that Prime Minister is a liar. His political enemies acted as if Johnson sought prerogation until October 31. This was a falsehood, and one that enjoyed widespread circulation. The judges in the judgement do not distance themselves from this rumour. Were they impartial, they would.
Paragraphs 28-37 and 38-52
The judgement then asks whether this case is justiciable, in paras 28-37 and if so according to what standard (paragraphs 38-52). In paragraph 31, the judges state that “the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.” Paragraph 32 then cites the Case of Proclamations from 1610,(but wrongly dates it in the text). This is the case where Sir Edward Coke and his fellow judges stated that the King (James VI of Scotland and I of England) could not by proclamation prohibit new buildings in and around London; i.e., the Royal Prerogative could not be extended into areas not previously sanctioned by law. The crucial words, already cited, are “the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament”.
The judges then ask in paragraphs 35 : 1. whether a prerogative power exists and if so its extent; 2. whether the exercise of that power, within its limits, is open to legal challenge. “This Court holds that it is”, comes the answer.
This answer, the judges declare, is rooted in two fundamental principals of the UK’s constitutional law (paragraph 41) : “The first is the principle 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.” “Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.” The Case of Proclamations is cited again, along with other more recent cases.
The judges go on to argue in paragraph 42 thethat “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. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.”
They then go on to refute in paragraph 43 that the court, as advised by the Prime Minister’s counsel, should not consider extreme hypothetical examples; should not consider the implications of such a hypothetical example; and should not accept that there are practical constraints “on the length of time for which Parliament might stand prorogued, since the Government would eventually need to raise money in order to fund public services, and would for that purpose require Parliamentary authority, and would also require annual legislation to maintain a standing army. Those practical constraints offer scant reassurance.” There has to be a legal limit on the power to prorogue, the judges argue. The judges, in short, are preparing, in the words of John Longworth, cited in Part III above, to ” prohibit(s) people from doing anything, unless it is permitted.” They are edging the UK to a continental-type Napoleonic code.
The second principle of the British constitution, alluded to in paragraph 47, is “The principle of Parliamentary accountability”. Here the judges refer to ” a constitutional separation of powers”. This “fundamental constitutional principle has also been recognised by the courts.” The judges thus declare “Parliamentary accountability” to be up there with “Parliamentary Sovereignty” as the two fundamental principles of the UK’s constitutional law. “That principle is not placed in jeopardy if Parliament stands prorogued for the short period which is customary…But the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model. So the same question arises as in relation to Parliamentary sovereignty: what is the legal limit upon the power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions?”
“This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.” The standard, which the judgement derives from constitutional and from previous case law, is presented in para 50: “that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) 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 such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”
What may be said about these paragraphs?
First, the Court states that “the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries”. As mentioned above in the earlier Parts of this article, this is a tendentious interpretation of the British constitution. It definitely applies to the famous Case of Proclamations – when the Stuarts with their Roman law traditions ran into Sir Edward Coke’s defence of common law and tradition. But under the 1689 Bill of Rights, which settled the major sources of constitutional conflict during the seventeenth century, the courts interpret the law. The three sources of law are convention, the common law and statutory law as determined by the sovereign, the Crown in Parliament.The courts do not “supervise”. In the British constitution, they implement and interpret.
Second, the phrasing of paragraph 41 is misleading: it states that ” the prerogative powers are limited hy the Principle of Parliamentary sovereignty”. The Crown, in reality, brings the prerogative powers into Parliament; it is the Crown in parliament that is sovereign, not the parliament as legislature or a stand alone institution alongside the “”executive” and the “judiciary”. The judges have in mind an American or EU-type constitution. That is not the British constitution. Yet they clearly seek to move the British constitution in their preferred direction. That is what politically inspired, and activist judges do.
Third, in paragraph 42, the judges state that “an unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty”. Is this a correct statement? Well, yes and no, is the answer. Charles I attempted 11 years of personal rule between 1629 and 1640, but then had to recall Parliament because he was in need of money to help finance his war against the Scottish Covenanters. His years of personal rule proved not to be unlimited, and the whole sorry saga ended in Charles’ execution in 1649. Furthermore, the precedent is not a happy one: the Long Parliament sat from 1641 until 1660– the longest un-prorogued parliament until the parliament of 2017-2019- and at the time of Charles’ execution through to the restoration of the Stuart dynasty in 1660, Parliament provided a fig leaf for Cromwell’s dictatorship.
It is worth adding that Article I of the Bill of Rights of 1689 confirms that there is no possibility of unlimited prorogation- “the pretended Power of Suspending of Laws or the Execution of Laws by Legall Authority”, the foundational document of the British constitution states, “without Consent of Parlyament is illegall”. This is the key statement to be deployed against the Johnson decision-not some hypothesis, which opens the way to judicial prerogative to sit in judgement about decisions of high policy.
Why did the judges not cite this Article 1 from the Bill of Rights in their cause? It would have suited their case because the Crown in Parliament could not use the prerogative without “the consent of Parliament”. Yet the tradition was – as the judgements on the non-justiablility of this case in the Outer Court of Sessions and the High Court made clear – that judges should not enter the political minefield. The British constitution held plenty of correctives to abuse of power: the courts, general elections, the opposition, a free press. Indeed, Parliament voted the Withdrawal Act (2) with the express purpose, in this case, of preventing the use of the prerogative to prorogue without the consent of Parliament.
Fourth, paragraph 47 addresses the principle of Parliamentary accountability. The judges are skating here on thin ice: they cite some cases, which go in the direction of their thesis. But to repeat, the Crown in Parliament is sovereign; the sovereign can only make law with the consent of its other half, parliament; parliament is in charge (or was until this case) of its own affairs, and is held to account by the press, regular elections, and the courts judging whether or not the sovereign is operating in conformity with its own laws. This is of course not the meaning the judges give to accountability: but it is the sense of the British constitution. Why do they use their interpretation of the government as seeking to stymy Parliament from holding “the executive” to account? One can only observe that their definition provides a useful handle for them to broach the length of time of prorogation, , and what the “legal limit” upon the power of prorogation may be.
Fifth, in paragraph 50, the judges present their standard against which to judge the lawfulness of pro-rogation.The wording of this standard is particularly poor. Let us examine it more closely.
- The assessment of whether a prorogation has the effect of “frustrating or preventing …the ability of Parliament to carry out its constitutional functions”, is inevitably an ex ante opinion about what could happen in as yet unknown circumstances. It amounts to making a judgement about the future – the definition of futurology. They do so because they seek to make the decision about prorogation justiciable.
- Then there is no obvious judicial benchmark for defining what is meant by “reasonable justification”, “sufficiently serious” or “such an exceptional course.” The wording is wooly, but it serves a purpose. A wooly definition gives plenty of latitude to judges to exercise discretion as to what they may mean. What is exceptional, one may ask? Herbert Morrison, the Labour leader of the 1940s and 1950s, was asked a similar question: what was socialism? His answer came: “whatever the Labour government says it is”. Applied to this verdict, the judges say: whatever the judges say is “reasonable”, “serious”, or exceptional” is so. God, one may assume, speaks.
- The purpose of paragraph 50 is to prepare the way for paragraph 52, which asserts that the standard is not concerned with the mode of exercise of the prerogative, but is to be applied only to assessing the prerogative power’s legal limits. These legal limits, apparently, are to be defined by the wooly criteria which provide the wherewithal to judge the “mode of exercise”- which the judgement says it does not wish to do, but which by its own definition it has to do in order to assess the “limits” of the prerogative power to prorogue. The judges are chasing their collective tails, but also in effect opening up an unlimited extension of their powers. What they do conclude in paragraph 58 is that this prorogation had “an extreme effect on the fundamentals of our democracy”. That is a statement which definitely can be applied to this supposedly a-political but in fact partisan judgement.
Was the advice lawful? Paragraphs 55-61.
The next section of paragraphs running from 55-61 under the heading ask “was the advice (to her Majesty) lawful? I summarise. Did “the Prime Minister’s action have the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account? (paragraph 55). “Of course it did”, they answer in paragraph 56. I place italics on the key points. ” It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.”
Obviously, the judges continue, Parliament must have a say on how the referendum is implemented. “.. 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.” Was there a justification for the Prime Minister’s action? “We are not concerned with the Prime Minister’s motive in doing what he did. We are concerned with whether there was a reason for him to do it. ”
Why was there a need for a five weeks prorogation? The judges quote Sir John Major who said “he has never known a Government to need as much as five weeks to put together its legislative agenda.” The evidence presented by Johnson’s counsel , the judges stated, failed to address the question satisfactorily. ” It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”
Lets us examine these arguments from paragraphs 55 – 61.
The Supreme Court asked (paragraph 55) whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account. Paragraph 56 says “The answer is that of course it did.” The “of course” sets a very high standard for proof. The phrase means “incontrovertible”, not capable of denial. In paragraph 57, the Supreme Court makes the statement that, given the exceptional circumstances” that “ fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019”, “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”.
First, what made the circumstances “exceptional”? The vote of June 23 2016 to leave the EU is clearly part of the answer. In the referendum of 1975, the country gave a two thirds majority to stay, in a vote that was uniform across the country. By contrast, the vote of June 23 2016 gave a small margin to Leave, 52 to 48%. Scotland and Northern Ireland voted to Remain, England and Wales voted to leave. The draft treaty, signed by the EU 27, and by Prime Minister May, was rejected three times by the House of Commons, whose members were said to be 80% for Remain. The failure to exit on March 29, 2019, resulted in a political tsunami, given that May had promised 106 times that the UK would leave on the fixed day. She had also said that “no deal was better than a bad deal”. Had she followed her own slogan, the UK would have exited on March 29. But she applied for an extension. This gave rise to the widespread suspicion that she had lied all along. The EU27 eventually decided on extension until October 31. Its leading lights also said that the draft Treaty could not be revised. In other words, that parliament had a duty to sign along the dotted line, whether or not the voters of the UK agreed. Prime Minister Johnson was determined to re-open a deal that the EU27 averred was closed. Many thought he was implementing the Law/Ekins programme of “no deal”, despite his saying the contrary. Clearly, these were “exceptional circumstances”. But these “exceptional circumstances” were also incontrovertibly political, so political that the EU27 proposals were interpretable as providing a choice between revoke (ditching the 52% vote of June 2016) or colonial status under an open-ended Treaty, with no cut-off date (the visible end of the UK as a semi-independent state).
Put in this way, it is not difficult to question the Supreme Court’s wisdom in wading into the political battle, while asserting that it was staying out of politics. It would have been better to be honest and state that whatever judgement it made, it could not avoid to take sides.
A second component of the “exceptional circumstances” was undoubtedly that much was at stake for the British Constitution. For instance, the British electorate by a small majority had rejected the 1972 settlement whereby the United Kingdom became a full member of the EEC, then the EU. Given that subsequent treaties, notably the Lisbon treaty, had become part of the UK Constitutional order, then the Supreme Court was incontrovertibly correct to state that Leave would have consequences, and the House of Commons had every right to debate them. But it erred in stating that “ fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019”. This was a misinterpretation of the 1972 European Communities Act, whereby in Section 2 the Crown in Parliament was the source of authority which conceded that EEC/EU law would prevail over UK law. As I point out above, the 1610 Case of Proclamations (and numerous Acts still on the books) could have been deployed to query the validity of the 1972 Act. The reason that the 1972 Act proved so resilient is that it was based in Section 2 on the doctrine of British sovereignty as residing in the Crown in Parliament. Withdrawal from the EU in no way altered that reality. In fact, Parliament had voted a 1972 Repeal Act. The consequences of exit under “deal” or “no deal” were thus of economic and political significance. They were not of constitutional significance in the sense the Supreme Court asserted in paragraph 57. What was at stake is that Brexit would cut the “conduit pipe” through which EU law entered the UK’s jurisdiction as a superior source of law to UK law.
Third, the House of Commons most definitely had a “right to have a voice in how that change comes about”, but how much say was a central issue in the political battle. The familiar distinction in the UK was that the Crown negotiated Treaties under its prerogative, and the Parliament could ratify or reject. Lord Castlereagh during the Congress of Vienna of 1815 hurried back from the festivities in the Austrian Emperor’s capital in order to ensure parliamentary support, and 1867 was the last time that parliament rejected a treaty negotiated by the Crown. Parliament’s powers were much more extensive with regard to domestic affairs. Lord Pannick had argued in the 2017 Miller case that because EU laws had such an impact on domestic affairs, parliament was necessarily involved, and therefore had to be consulted before Prime Minister May triggered Article 50. But this was not the same as parliament aspiring to conduct diplomacy in stead of, in parallel to, or in the case we are dealing with, against the Prime Minister’s policy. The European Withdrawal (2) Act, referred to in paragraph 57, was unprecedented in that it undercut the government’s ability to negotiate with Brussels. Ex ante, Prime Minister Johnson had every reason to consider that this was a “Surrender Act”. The fact that Johnson managed to come up with a different draft treaty to May is, ex post, a confirmation of his determination and of his original intent.
Fourth, one other vital component of the “exceptional circumstances” thesis was that since the 1975 referendum, introduced by the then Labour government, the UK has had a bi-cephalous source of legitimacy. The traditional source is the Crown in Parliament, accountable via elections to the electorate at regular intervals in general elections. The novel source is the referendum, which remains constitutionally an advisory vote. In the case of the 2016 referendum on Remain or Leave, the Cameron government let it be known that what the public voted for they would get. Cameron in his recently published memoirs thought he would win, so he was betting that the public would be deterred if the economic consequences of leaving could be presented as dire. They were presented thus, the global Great and the Good piled in to warn the British voters, but the vote still went to Leave. Hence, a central political battle in Brexit politics is whether the referendum was a mandate, or whether MPs retain the older discretion to apply their own judgement to the matter. The 2017-2019 ‘Do Nothing” parliament has been unable to decide in favour of the concept of mandate or the older concept that MPs represent, and retain their discretion to judge on behalf of their electorate.
My interpretation is that Prime Minister Johnson considered that the referendum was a mandatory vote, and that parliament would reject it at its peril. The Supreme Court pretended not to take sides. Brexit was not its concern, it declared. Just Johnson’s proroguing decision. If you believe that, as they said in the 1970s, I’ve got a bridge to sell you.
Paragraph 58 stated that the Supreme Court was not concerned with Johnson’s motives, just his reason for doing it. This is a flimsy distinction. When does a motive become a reason, or vice versa? The PM’s reasons/motives may be eventually disinterred after the archives are opened 30 years hence. Meanwhile, we are in the domain of conjecture; perhaps well informed conjecture, but not a conjecture which justifies being labelled “incontrovertible”.
Lord Pannick in his statement to the High Court, in his paragraphs 6 and 7, was disarmingly honest about how much conjecture was involved in interpreting Johnson’s reasons/motives. Johnson’s advice to the Queen, Lord Pannick states,”was unlawful and an abuse of power because Parliament will be silenced for far longer than is necessary to prepare for the Queen’s Speech.(My italics). That is the purpose, or at least the stated purpose, for the prorogation.(my italics) No explanation has been given by the Prime Minister in these proceedings which justifies the length of the prorogation. It is a reasonable inference from the evidence, including the fact that different justifications have been given publicly by the Prime Minister for the prorogation and its length, that the advice to Her Majesty was motivated or at least influenced by improper considerations. They showed a misunderstanding of Parliamentary Sovereignty and Parliament’s role, namely its function of considering, debating and enacting such laws as it sees fit. Such improper considerations included the Prime Minister’s dislike of the views of Members of Parliament, his concern that Parliament might undermine the Government’s strategy in negotiating an exit.”
The case against Johnson in a nutshell.
Here we have the case against Johnson in a nutshell. The phrase the stated purpose implies that Johnson was saying one thing in public, and another in his kitchen cabinet in 10 Downing Street. Here, too, we have a new word, purpose, to add to motive and/or reason. Pannick’s intent is not difficult to discern: he considers that Johnson was telling a fib. Maybe he was. One can go further. If he was like all other politicians, he most probably was. But what was he saying in the kitchen cabinet, and what was he saying in public? The only evidence about what went on in the kitchen cabinet is the da Costa memorandum, and hearsay. We do know what Johnson said in public: he wanted a “deal” but he was preparing for a “no deal” in case he did not succeed to get one by the EU’s deadline of October 31 to leave with or without a deal.
His opponents poo-poohed the idea of threatening the EU27 with a “no deal”, as if the only negotiator to be threatened could be the UK (sign the May deal as an EU colony, or stay in the EU as a province or rather four provinces). They maintained that it was wrong-headed to maintain that the EU27 would allow for re-negotiation of the draft Treaty. Ex post, after this case, the EU27 did. Johnson was vindicated.
Pannick goes on to draw a “reasonable inference”. A reasonable inference is rather different to Paragraph 56’s “of course it did,” assertion. “Of course it did” means incontrovertibly. So what is it, Supreme Court, reasonable inference or incontrovertible evidence? We are not informed. Nor are we given clear proof that Pannick’s improper considerations amount to the Prime Minister shortening Parliament’s time for debate, on the grounds that Parliament might undermine the Government’s strategy to negotiate an exit.
Ms Cherry made a similar point, referred to by the judges in paragraph 53. Ms Cherry pointed out that “the Prime Minister had made clear his view that it was advantageous, in his negotiations with the EU, for there to be a credible risk that the United Kingdom might withdraw without an agreement unless acceptable terms were offered. Since there was a majority in Parliament opposed to withdrawal without an agreement, there was every possibility that Parliament might legislate to prevent such an outcome. In those circumstances, it is alleged, his purpose in seeking a prorogation of such length at that juncture was to prevent Parliament from exercising its legislative functions, so far as was possible, until the negotiations had been completed.” In paragraph 54, the Supreme Court brushed this aside on the grounds that, I use my own words, it would open up a whole new can of worms-“this ground of challenge raises some different questions”. Indeed it would. For instance with a “credible risk” we are back to hypothesis. We dabble in motives/reason/purpose. We are back to alleging, not proving. Not surprisingly, the Supreme Court tip-toed around Ms Cherry’s proposal.
Lord Pannick referred to the Prime Minister’s “different justifications” for the prorogation, and went on to air his novel definition of Parliamentary Sovereignty and its role “namely its function of considering, debating and enacting such laws as it sees fit.” The Constitutional definition of sovereignty in the United Kingdom, rooted in the Bill of Rights, to repeat, is “the Crown in Parliament”, not the Crown versus Parliament (the 1610, pre-civil war Coke definition).
This formulation – of legislature v.the executive– and that was deployed in the judgement, also raised the hare of the parliament’s role with regard to the Crown’s prerogative in negotiating Treaties. The accepted practice for the past three hundred years was that the Crown in Parliament could deploy the Crown prerogative to negotiate treaties on condition that it enjoyed the confidence of the House of Commons, in other words that the government enjoyed a majority in the House. Prime Minister Johnson’s majority was in the process of disappearing, but the 2017-2019 parliament refused, as Johnson had requested, to vote no-confidence in the government, – which would have been the path to hold a general election – the only condition the EU27 had given for extending their October 31 deadline. The House of Commons refused to pass a vote of no-confidence on Johnson’s government. Had he lost, which is most likely, he would have been enabled to opt for general elections. In not calling no-confidence, the House of Commons was in fact stating its confidence in the government.
Why? Because many parliamentarians thought they had the Johnson government over a barrel. Johnson had every reason to believe that, in Lord Pannick’s words, “Parliament might undermine the Government’s strategy in negotiating an exit”. Parliament wanted a neutered government to do its bidding. It was thereby reversing the Crown in Parliament definition, to meaning that parliament, as the senior branch of government, tells the Crown what to do. The judgement considers that this breach of three hundred years of convention is parliament expressing Parliamentary Sovereignty – a sort of UK IVth Republic of shifting coalitions of power-hungry politicians to run the country for a few weeks before the next lot kick them out. It is not. Not only is the judgements definition of Parliamentary Sovereignty novel, to say the least; the application by Parliament of this definition is unconstitutional.
The judgement says the prorogation was far too long.
It was far too long, it concluded, because Johnson’s purpose was to stymy parliament holding ” the executive”to account. In paragraphs 55 and 56, the Supreme Court went directly to its point: “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 answer is that of course it did.” The Supreme Court here made two points. We can take them one at a time
- “ It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October.” This is challengeable, and cannot pass the incontrovertible test. Parliament had sufficient time to pass the Withdrawal (2) Act; the Johnson government faced a deadline of October 17, the next EU Council at which Brexit was on the agenda. If he was to avoid having to submit the May draft treaty for the fourth time, in contravention of parliamentary convention that the same proposal may not be submitted twice, he had to try to negotiate a rather different deal; given that the previous Tory administration had taken two years to negotiate, Johnson would have calculated that he needed all the time he could get; if he succeeded, Parliament would have had time to legislate again prior to 31 October; had it needed more time, the EU had a quiverful of conventions to extend deadlines, for instance “stopping the clock”; in any case. the Withdrawal (2) Act, required that , if a new deal was not accepted on October 17, the Prime Minister would have to send a letter to the EU requesting an extension to the Article 50 period. In short, Parliament had legislated itself a backstop to do nothing until October 19. It is reasonable to surmise, also, that Parliament did not want to reiterate what had been discussed to death for over two years for a few extra days. It wanted to go on holidays until October 13, when it could sit in a new session prior to the EU Council meeting. The Supreme Court was second guessing Parliament’s wishes and very likely getting it wrong. But that is what happens if you dabble in unproven hypotheses.
- The government, said the Supreme Court, could have chosen recess rather than prorogation. “Parliament might have decided to go into recess for the party conferences during some of that period”. The conference season recess could have been shortened, and parliament reconvened to scrutinize “ government activity in the run-up to exit day”. Prorogation, the Supreme Court concluded, “means that they cannot do that.” There are two questions to ask here: 1. What could MPs do without prorogation? The government answer was “very little” that could not be passed over to a new session. In any event, this 2017-2019 parliament had sat for a record two years, been absorbed by Brexit, and done practically nothing. 2. What could they do with prorogation? Much more than the Supreme Court bothered to mention. Most importantly, the Supreme Court failed to mention that parliamentary convention held that the government could re-introduce draft legislation in a new session, that had been rejected in the previous session. Theoretically, the Johnson government could re-submit the May deal. This was unlikely. Two-third of constituencies in the United Kingdom had voted Leave in 2016: two thirds of MPs’ seats would be in jeopardy if the May’s draft returned. They would be turkeys voting for Christmas. So they were not enthused about the prospect of a general election. Nor were they enthused for May’s deal, a no deal, or a still unknown Johnson deal. This was a “Do Nothing” parliament. Until October 19, when its backstop could be invoked.
In other words, the Withdrawal (2) Act offered all the assurance a basically Remainer Parliament could ask for. The Commons was scrutinizing government during the prorogation by the very fact that it, and the Lords – in double quick time – had passed the bill into law. The Supreme Court’s case that the government was preventing parliament from scrutinizing was plain nonsense.
The Supreme Court then moved on to paragraph 58: “It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks. Everything was focussed on the need for a new Queen’s Speech and the reasons for holding that in the week beginning the 14th October rather than the previous week. But why did that need a prorogation of five weeks?” Let us look at these points one by one: five weeks; the normal time for prorogation; the documents in evidence:
- Five weeks: the five weeks prorogation can be dealt with quickly. The Supreme Court was convinced that Johnson’s decision was to stop parliament scrutinizing and holding the government to account. I have dealt with this: it does not pass the incontrovertibility test. There were plenty of reasons for the the Prime Minister to opt for the five weeks: parliament needed a break; a new session provided new opportunities; the conference season was looming, and the parties were geering up for a general election; the October 17 and 19 deadlines were set by the EU 27 and Parliament respectively; there was plenty of reason to believe that the clock could be stopped on October 31, if needed; and – a new point – it is quite reasonable to surmise that the Prime Minister considered that proroguing for five weeks might sharpen the EU 27’s awareness that the new Prime Minister was looking for a deal he could sell to Parliament-which the May deal had patently failed to do. Neither Johnson nor the EU27 wanted a “no deal” Brexit. None of this is mentioned by the Supreme Court.
- The normal time for prorogation: In paragraph 59, the Supreme Court stated that “the unchallenged evidence of Sir John Major is clear … a typical time is four to six days.” “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.” This was stated without any sense of irony: Sir John was, and is, an ardent Remainer. He had himself prorogued Parliament on March 1 1997 for three weeks prior to dissolution, in order to avoid the Parliamentary Commissioner publishing his report on the Cash for Questions affair. General elections were held on May 1 – in other words, Parliament did not sit for nigh on two months. Other examples of prorogation in the years since the introduction of universal suffrage after 1918, were: 1930 when the struggling Labour minority government prorogued Parliament for almost 3 months; or 1948, when the Labour government invoked the prorogation for one day. What was it about the Johnson prorogation that set it apart from these examples? Paragraph 42 made clear that the Supreme Court was worried that the executive could prorogue Parliament for “as long as it pleased”,. “That, however, would be the position if there was no legal limit upon the power to prorogue Parliament …An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.” The Supreme Court was motivated in short to adjudge about an extreme and hypothetical scenario – a matter, one might have thought, for the legislator, not for the judges. Also, making a judgement which is informed by a hypothetical event does not fit well in the very practical tradition of the common law. But as mentioned it does in Roman or Napoleonic law.
- The documents quoted in evidence:The Supreme Court stated in paragraph 60 that no satisfactory reason was given: for closing down Parliament for five weeks; as to why it was necessary to curtail time for Brexit business; as to the time needed to approve a new “deal under the Withdrawal (2) Act; as to the time required for scrutinizing the proposed legislation; or for the consultation required with the Scottish Parliament and the Welsh Assembly; let alone for the competing merits of recess v.prorogation. The documents in question are from Nikki da Costa outlined in paragraph 17. What can be said on this point? Simply, the Supreme Court demanded from the Prime Minister justification for his action for which there was no precedent and no law. Had the Prime Minister produced tonnes of documents, he would have been acquiescing in what could with reason be considered an unconstitutional judicial grab for power. What is more in paragraph 61, the Supreme Court admits that it had limited evidence to reach its conclusions.
That did not prevent it from doing so.
The remedy: paragraphs 62-71.
The remedy paragraphs are the piece de resistance of the judgement. I summarise. “The advice given to Her Majesty was unlawful and null and of no effect”. The judges reached this decision by dismissing the relevance of Article 9 of the Bill of Rights. Article 9 provides:“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” The equivalent provision in the Claim of Right of 1689, an Act of the Parliament of Scotland, is this:“That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members.”
The prorogation, the Court concludes, cannot sensibly be described as a “proceeding in Parliament”. Sweeping aside three hundred years of precedent, the Supreme Court affirmed that the decision to prorogue was not within parliament but external to it. Here we move from wooly definition to assertion. Gershwin’s words from Porgy and Bess come to mind:
It ain’t necessarily so
It ain’t necessarily so
The t’ings dat yo’ li’ble
To read in de Bible
It ain’t necessarily so
“It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is not something upon which the Members of Parliament can speak or vote. The Commissioners are not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen’s bidding. They have no freedom of speech. This is not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end.” The Court, the judges declare, ” is not, therefore, precluded by article 9 or by any wider Parliamentary privilege from considering the validity of the prorogation itself.”
The judgement concluded that the Prime Minister’s advice to the Queen was unlawful. “It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect”. This followed on from paragraph 61 to the effect that: “it is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”
Professor Finnis: this judgement is unconstitutional.
We are confronted here with the mother of all non sequiturs – statements that do not follow logically from anything previously stated. We cannot speculate, the Supreme Court says, but we can conclude. The whole judgement, though, is one big speculation: about the reasons/motives/purpose of the Prime Minister; based on inadequate evidence, as the Court admits; predicated on the wooly wording of the Court’s standard; with the Withdrawal Act (2) providing abundant evidence that the Commons was indeed scrutinising the government during the period of prorogation; and now with an unprecedented assertion that ‘it ain’t necessarily so”.
As Professor Finnis argues, the Supreme Court’s judgement is unconstitutional. The judgement “undercuts the genuine sovereignty of Parliament by evading a statutory prohibition – art. 9 of the Bill of Rights 1689 – on judicial questioning of proceedings in Parliament.” Parliament’s practical opportunities to pass Bills and scrutinize government “have been protected for over 300 years, without significant mishap, by constitutional conventions which are policed politically, ultimately by the electorate. In working with the principles of Parliamentary sovereignty and political accountability, our constitutional law has always (partly under the influence of art. 9) distinguished firmly between legal rules (justiciable) and conventions (non-justiciable). “
Professor Finnis goes on to argue that “the judgment offers no plausible reason for transferring the conventions about prorogation into the domain of justiciable law.” Reference is made to the Laws/Ekins idea from March 25 2019, to use the prospect of prorogation, with the intention of preventing Parliament from blocking a “no deal Brexit”. The Prime Minister’s counsel suggested that the court should decline to consider such “extreme hypothetical examples”. This was dismissed by the Court. As Professor Finnis observes, “the longstanding constraints on such abuse, in the form of conventions, strict legal preconditions for expenditure on maintaining government, and accountability to the electorate at legally defined intervals, constraints regarded as sufficient for hundreds of years, are suddenly assessed to be “scant reassurance” (in paragraph 43). Transferring what was convention to law, Professor Finnis considers, is a “historic mistake, not a victory for fundamental principle.”. Little can be done, he says, to “ undo the damage done to our constitutional doctrine and settlement.”
To summarise, the judgement gets off to a poor start with paragraph 1, and its host of hostages to fortune. The judges do not show impartiality. There was no incontrovertible evidence that the government was seeking to prevent Parliament from its functions of scrutinising government policy and of holding the government accountable. The Supreme Court ignored warnings from distinguished senior judges not to venture into the political minefield. There were plenty of devices in the UK’s constitutional arrangements to prevent a government running rogue. The standard the judges define to benchmark whether a decision to prorogue is or is not legal does not stand up to scrutiny. They also became confused over whether or not they were assessing reasons/motives/purposes. The judges introduced novel concepts into the British Constitution, their own concepts of Parliamentary Sovereignty and Accountability, that indicate they have a specific view of the direction in which the Constitution should develop.
In so doing, no less a legal authority than Professor Finnis considers this judgement as unconstitutional. Incontrovertibly, their model for the UK is along the lines of the US or EU. That is entirely in line with the maximum discretion they give to judges to decide in the future about political motives/purposes/reasons. In making this de facto power grab for judges, their judgement has invited demands that if they are to get political, they have to be politically accountable. On the trajectory they have taken, there is no end to the judiciary’s interference in political decisions. The judges are activists, making law, not interpreting it. There can be little doubt, as well, that the judges have become absorbed in the Brexit political battle. Their claim in the judgement that they stand outside the political battle is nonsense. The British and foreign press have done likewise, and lost their bearings. Impartiality and objectivity are the victims. The judgement was hailed as evidence that the UK was still, just, a Rechtstaat, whereas in fact the judges have been inventing things as they go along.
What I deplore most about this judgement is the mediocrity of its argumentation. But then this is a post-modern judgement. It de-constructs the inherited British constitution. De-construction in the words of Richard Rorty, cited in Part III above, refers to the ‘accidental’ features of a text that can be seen as betraying, subverting, its purportedly ‘essential’ message.” Its essential message is to preserve and update the 1689 inheritance. The real message is in line with Charter 88’s purpose to “modernise” the British constitution. The judges are militants for a cause, and Lady Hale is chief among them. Nemo judex idoneus in propria causa est.
The UK is now adrift without the uncoded Constitution which guided it through thick and thin for three hundred years. That is why constitutional reform is now urgent. If the remnants of the old Constitution are to be salvaged , parliament must be seized of constitutional reform. It is not a task that can be left to the judges, judges now tasting the delights of making, not interpreting law. Without arguing the case here, it is also a task which cannot be executed as long as the UK is a member of the EU. In this regard, it is worth pointing out that Nigel Farage has placed constitutional reform front and centre of his “contract” with voters fro the December 12 2019 general election.
The last time that the fundamental question of politics was raised in the UK – by what right do you rule – the UK endured a century of strife. The settlement came in the form of the Bill of Rights. The judges have binned it. By the light of that Bill of Rights, this judgement is an aberration. But it constitutes new law. The UK is entering, has entered uncharted waters. I can end with another Latin quotation: Quos Deus vult perdere prius dementat.