That was the constitutional week that was

29th September 2019

Soon the heady constitutional events of last week will pass into memories and the UK supreme court’s judgment on prorogation will just become another case in the textbooks.

So this post is an attempt to capture what happened that week – and if you have things to add, please add your comment below.

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This time last week there was uncertainty as to how the supreme court would approach the Cherry/Miller (No 2) case and as to what the result would be.

Some had called it for those challenging the prorogation, while others feared that the court would adopt the orthodox position that the prorogation was not justiciable. 

Some even feared that the justices would shrug and say that even if the prorogation was for political reasons, it would have been lawful all the same.

On legal Twitter the night before the judgment was like the night before Christmas, and the morning before the 10.30 hand-down of the judgment was like Christmas Day in one of those dreadful households which make you wait to open the presents.

There was genuine and deep excitement.

Constitutional law was exciting.

And this was, of course, a problem: constitutional law should not be exciting.

Constitutional law should be dull.

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Why was there excitement?

One cause was the legal uncertainty that in turn was caused by the lack of direct precedent.

Usually the lack of direct precedent means a legal claim is more likely than not to fail.

Indeed, a month or two ago I would (and did) put the chances of a legal challenge to prorogation as zero.

But: things had happened to shift the prospects of the case so that it was too close to call.

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First, the facts of the case were not, as lawyers would say, “attractive”.

A five week prorogation in the few weeks left before the UK is set to leave the EU by operation of law on 31 October 2019 (unless there is an extension or revocation) was only explicable in terms of the government seeking to close parliament so as to prevent parliamentary scrutiny.

And as prorogation meant a total shut-down, it meant current Bills would fall (including important legislation on marriage reform and domestic abuse), parliamentary questions cannot be asked, and the work of select committees was halted.

This was unlike a parliamentary recess, which would have none of these effects.

Any sensible person would think that the run-up to Brexit, either with a deal or without a deal, would be when parliament was most needed.

Prorogations are usually short boring things, bringing to the end of one session before starting another: days, not weeks.

For a prorogation to be used so as to release government from parliamentary supervision seemed like constitutional cheating.

There was something wrong, and it needed to be put right.

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Second, there seemed to be underhand conduct.

Not only was there a political motivation for the prorogation but an attempt to pretend otherwise.

This was most telling in what I described at the FT as the curious incident of the missing witness statement.

Nobody in government, either minister or official, was willing to provide a witness statement, under pain of perjury, to the courts hearing the challenges to the prorogation.

Nobody who could provide a positive account was willing to do so.

This was a conspicuous gap.

By reason of the sequence of events it seemed that, in effect, the government had deliberately misled the Queen in their “advice” that she exercise the prerogative power to prorogue.

To their credit, the government’s lawyers did a proper disclosure exercise, and documents were put before the courts which indicated that the purported reasons for the prorogation were not the true reasons.

The disclosed documents raised more questions than they answered, but the one thing they did not provide was any reasoned explanation for why there was a prorogation instead of a recess and why it was to last for five weeks rather than a few days.

The lack of any full explanation for the prorogation was as much a cause for unease as the plain political motivation.

Again, there was something wrong, and it needed to be put right.

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The third factor in making the case too close to call was the supreme court hearing itself.

The case for those challenging the prorogation had an immense legal task.

As there was no direct precedent, the challengers had to identify an applicable legal rule.

The justiciability of a legal case is not down (or should not be down) to a subjective decision of a judge as to whether something is “political” or “legal”.

Justiciability is about whether a thing is capable of being determined by a court.

Just as a puzzle can be reduced to mathematics or a program can be reduced to a coding issue, a court needs a problem before it to be reduced to a legal rule which it then can apply to the facts.

No legal rule, no justiciability.

The high court of England and Wales, who heard the Miller challenge at first instance, could not identify a legal rule.

It was not for the courts, the high court judges said, to determine whether a prorogation decisions was right or wrong, and certainly not to decide how long the prorogation should last.

These were inherently political questions, requiring political judgment.

The Scottish court of session, however, had found the prorogation decision to be justiciable, and had focused on the untoward motives and purpose of the decision rather than on the duration.

In his submissions for Gina Miller, Lord Pannick QC had to fashion a legal principle for the Supreme Court to apply.

He did this by looking at other cases of constitutional significance, some dating back to the time of Edward Coke and William Shakespeare, to show there was a general rule that the court could apply in this case: that there was a legal basis for a judge to decide whether a prorogation decision was lawful or not.

That there was a legal question to be asked and answered.

It was not obvious that Pannick succeeded.

His position was subjected to detailed questioning by the justices, every proposition of his was tested.

An exchange between Lord Reed and Aidan O’Neill, the QC leading the Scottish Cherry challenge, indicated that the judge was sceptical about going behind the disclosed documents.

And there was no clear sense from watching the hearing that the justices were convinced that this was a justiciable case and, if so, there was anything wrong with there being a political motive.

An experienced public law barrister friend of mine, who has studied the approach of the eleven supreme court justices on similar questions put the result of the eleven judge court as five:five with one justice too difficult to call.

And, of course, Lords Reed and Carnwath had been in the minority at the last Miller case, dissenting because they viewed it was open to the prime minister to make the Article 50 notification without parliamentary approval.

The conventional wisdom was that at least Lords Reed and Carnwath would be against this latest Miller challenge too.

That conventional wisdom was wrong.

But until the hand-down of the decision, few following the case felt certain as to how the court would go, and many of those who were certain turned out to be incorrect.

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A further reason for the case being too close to call was that there was no obvious remedy, even if the judges held that the challenge was justiciable and then found against the government.

For example, if the court were to make an order, who would the order be against, and what would the order say?

And what would happen if the order was not complied with?

The question of remedy was further complicated by the complicated sequence of steps which led to the prorogation, with advice to the Queen, attendance by Privy Councillors, the making of an order in Council which was then conveyed to parliament.

What was the “target”?

And how would any of this sit with the constitutional rule excluding the courts from intervening in or questioning the proceedings of parliament?

Also any order of the court would be (seen as) political: an exertion of judicial power against the executive.

The problem of remedy was as difficult to address as other problems in the case.

What could the court actually do, even if it wanted to?

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The judgment was handed down at 10.30 on a Tuesday morning.

Only seven of the eleven justices attended the hand-down.

This perhaps suggested that the court was not expecting to hear any further argument from the parties, such as to the terms of any order, but otherwise it did not mean either a government win or defeat.

The president of the supreme court Lady Hale began, and everyone in court and watching the live stream listened to every word to work out the result.

She said it was unanimous – but this did not necessarily one mean one result or the other.

“One off” – perhaps that meant a government defeat and the court wanted to make out it was limited to the facts?

A detailed explanation of the passing of the Benn Act on avoiding a “no deal” Brexit – perhaps the court had decided the prorogation had not caused any real inconvenience to parliament after all?

But then it became clear that this was a bad judgment for the government, and as Lady Hale went on, it got badder and badder.

The judgment was damning.

The court had identified a legal test, applied it, and found that the advice to the queen was unlawful to begin with, rendering what followed to be void.

The court was not to make any order, as merely declaring the law was sufficient in this case.

The matter was handed back to parliament to sort out – all the supreme court had decided was that, as a matter of law, the prorogation had never happened.

It was a spectacular judicial moment.

Nobody had expected such an emphatic unanimous judgment.

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Hindsight is a bewitching thing.

There now seems to have been a certain inevitability to the Supreme Court finding what they did.

Of course, that was what the Supreme Court was going to decide.

Of course.

But robust unanimous judgments in any legal case can often mislead as to how difficult a legal case was to decide.

And a close look at the judgment shows that this had not been easy.

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In the judgment the issue of motive is sidestepped.

The rule which the supreme court identify in paragraph 50 does not require any view to be taken as to the true motives of the government in seeking prorogation:

“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.”

The focus is instead on effect on parliament.

And the requirement is on the government to explain why, given those effects, the proposed prorogation is required.

The greater the impact, the more that the government will need to justify.

No sensible person should object to this.

The judgment does not remove the prorogation power from the prime minister, it instead means that if there is an adverse impact on parliament then it needs to be reasonably justified.

This focus on the effects, rather than motives, is perhaps the reason why there was unanimity: it would have allowed some of the more hesitant (or, ahem, sceptical) judges to avoid any anxious scrutiny of the evidence leading up to prorogation.

The simple lack of an explanation as to prorogation (as opposed to, say, recess) and for its duration if that impacts on the work of parliament was enough.

No reasonable and relevant explanation, no prorogation.

(The other reason for the unanimity may be that once it was plain that there would be a majority against the government then unanimity was prudent, just like when the other Doctors came to help out the War Doctor.)

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The judgment also contained something interesting and significant about the constitutional role of the prime minister.

When exercising the royal prerogative, the court held the prime minister has “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament” (paragraph 30).

What makes this remarkable is that traditionally UK constitutional law has paid little attention to the special role of the prime minister.

The approach is usually to consider the prime minister as primus inter pares, the mere chair of the cabinet, and the person advising the monarch, who has the real power.

The supreme court has disregarded this fiction.

As the monarch only has a nominal role in the exercise of the prerogative in their name, this new description of the prime minister’s constitutional role means that the prime minister has a special responsibility above the selfish political interests of the government.

The prime minister has to have regard to the constitution as whole when exercising prerogative powers.

And this is because the monarch cannot.

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In substance, it is a small-‘c’ conservative judgment, returning powers to parliament that had been stolen by the executive.

The judgment is not the basis of any coercive or mandatory order on a politician or other element of the state.

The judgment provides a test for prorogation that, frankly, should have been the test which a prime minister should have applied in the first place.

And the judgment sets out the wider responsibilities of the prime minister which again a prime minister should have had regard to in the first place.

All that has happened is that the supreme court has set out in law what perhaps any other prime minister other than the current one would (or should) have done anyway in exercising the prerogative.

Those who attacked the judgment as a “coup” and so on have not read the decision, or have not understood it.

Only those who want arbitrary executive power can complain of the substance of the judgment.

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The judgment is also welcome in its form as well as in its substance.

The judgment is openly, proudly a “constitutional” judgment – setting out the constitutional positions of each element of the state and articulating the relevant constitutional principles.

This contrasts with many other leading cases in constitutional law, where you can read them without realising their constitutional import, the significance lost in technical detail.

The judgment is readable and quotable, and it will be read and quoted.

*

As nobody expected such a judgment, nobody was prepared for it.

Parliament resumed, though with a vile atmosphere caused by ministerial bad temper.

Unnamed “Number 10” sources briefed compliant media various legally illiterate ideas about what the government could do next, which were then uncritically reported.

Unnamed ministers threatened “constitutional reform” in retaliation to not getting their way.

All this noise was, in a way, the sound of a working constitution.

(This is not to be complacent: we are still only one clumsy Number Ten step away from a constitutional crisis on Brexit.)

The supreme court resolved a tension between parliament and the government on the basis of a legal principle fashioned from other constitutional cases, declared the law to be what a prime minister should have done anyway, and then handed the matter to politicians to sort out.

Future generations will find it hard to understand how there could be objections to such a reasonable and practical judgment, let alone the screaming of pundits and politicians.

But future generations will not know that, at the time, such a welcome judgment was unexpected and could have gone differently.

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79 thoughts on “That was the constitutional week that was”

    1. You say, “Lord Pannick QC had to fashion a legal principle for the Supreme Court to apply.” And, “He did this by looking at other cases of constitutional significance…to show there was a general rule that the court could apply in this case: that there was a legal basis for a judge to decide whether a prorogation decision was lawful or not.”

      You then say, “The court had identified a legal test [and] applied it.”

      Is the test the court identified the same one that Lord Pannick identified? If so, we can then say that there was a precedent for the decision. If not does this mean that the court “invented” a new test, perhaps having some basis in much earlier cases?

      And could this mean that if there isn’t a precedent that can be used, if necessary in “modified” form, then it is impossible to make a judgement?

      1. Another excellent piece. Thank you very much for all your work on these issues.

        Would you agree with this proposition? The accusations that the Supreme Court should not have transgressed onto the territory of ‘High Politics’ and Parliamentary convention fell down because the Prime Minister went beyond what could reasonably be thought of as acting within the limits of such conventions? It was this that brought into play the various Judicial precedents relied upon by the Supreme Court as the courts have had, for centuries now, a role in viewing the exercise of the Royal prerogative. Had the Prime Minister stayed within conventional Parliamentary behaviour by proroguing for a reasonable time there would have been little the court could have done or should have done.

        But what is frightening is that the Supreme Court had to intervene in this way. Parliamentary democracy was hanging by a thread and in danger of being undermined. I do not Believe in a written constitution but we should have some sort of review or speakers conference which could deal with the potential abuse of Parliamentary Convention and all the Royal prerogative in the future. One man, the Prime Minister purporting to act in the name of the Crown shut down briefly our Parliamentary democracy. That is literally mediaeval.

        1. Not so much medieval as a c17th Stuart dynasty approach to managing Parliament. But either way, something that I had considered consigned to the history books, not something that I ever expected to see happen in the UK in my lifetime. Maybe that was liberal complacency, but it amazes me that the Tory party, of all parties, should be interested in re-litigating the Civil War. Still, having occasionally wondered which side I would have backed, I am now pretty sure I’d have been a Roundhead!

      2. Speaking off the top off my head, I believe Pannick invited the Court to find that the evidence showed Johnson *intended* to frustrate parliamentary oversight with the abnormally long prorogation. The Court, however, preferred to focus on the *effect* of the prorogation, which (irrespective of Johnson’s intention) frustrated oversight. The Court appeared to leave the door open to the possibility of intention being a relevant factor, but (for lots of good reasons) decided it didn’t need to go there in this case.

        In a sense, this is a distinction without a difference. Both Pannick and the Court concluded that the prorogation power can’t be used to frustrate the constitutional role of Parliament – its exercise is therefore reviewable by the Court, and the essential legal test is whether the prorogation undermines principles of constitional law (such as parliamentary sovereignty and accountable government).

        Strictly speaking, this is a legal novelty – previous authorities put prorogation into a category of prerogative powers that are essentially political in nature, and beyond the Court’s ken. In a very real sense, though, the Court developed the law in a tiny, incremental fashion. The government is already obliged to exercise statutory powers only for the purpose for which they were conferred – the Court just said that’s also true of prerogative powers. Sure, it’s harder to divine a purpose for powers that aren’t conferred using statutory language, but for an absolute surety they can’t be used to undermine our constitution (without reasonable justification).

        This is obvious with hindsight (and, I argued, with foresight, but I can’t pretend I didn’t have serious doubts about whether the Court would agree!). Parliament is supreme, and HMG has no power to escape its scrutiny. What a massive relief to have it affirmed that if no-one else will defend that principle, the Court will (and also Miller and the other applicants – what heroes).

        1. Sure; but that wasn’t the thrust of my question(s).

          Was the test Lord Pannick identified/described the one used by the court? Or did the court use another?

          If the court identified a historical precedent, does this mean that only pre-existing precedents can be used in future? What then of the future judgements (not only Brexit related) if there is no identifiable precedent? Or can the court design and make a new precedent?

      3. The issue of “effect” rather than “intent” was raised by Lady Hale in a question to Lord Pannick during his opening. Pannick was planning to elaborate on the reasoning from the Scottish inner house (i.e. malign intent) but suddenly realised he was on to a winner after that question and changed his submissions to “effect or intent”.

        1. If the original question was “why”, Lord Pannick changed it to “what(effect)”, and the court responded.

          So, if the original can’t be answered, is the way to proceed to reframe the question in a way that can be answered?

          I understand that the court is very reluctant to devise a new precedent because of “unintended consequences”. But if a question can’t be answered, even by reframing, what then?

  1. Good point that the prime minister has been given greater discretion because of the convention that the prerogative power really belongs to the head of state.
    Good to see this discretion limited.

  2. If constitutional law should not be exciting, why do you make it so? Just reading through this brought back the tension and exitement. Love it. Can’t wait for the book.

  3. You are quite right, constitutional law should not be interesting. Clear and concise summary of recent events. Thanks

  4. An excellent analysis, thank you, but I think it omits a point: that, as the hearings progressed, the enormity of the power the government was claiming which, Topsy-like, was seen never to stop growing (it had no limits because not justiciable, dixit the government). Perhaps the crowning point was the observation, in response to the government claim that Parliament could always pass legislation overriding the prerogative, that, in bill form, that itself could be stymied by proroguing Parliament before it became law. A power that knows no limits merits exacting scrutiny and many and recent are the cases where the nation’s highest tribunal (as well as other courts) has stepped in to fashion a rule setting limits. Pinochet, for one, on head of state immunity …

  5. Thank you and thank g-d for the judgement that was. I don’t like to think of certain consequences had the judgement gone another way.

  6. Well my MP, Bill Wiggin, emailed me to let me know that he disagrees with the Supreme Court judgement, so I replied to ask him which bits he disagreed with, because if his reasoning is more compelling than that of eleven Supreme Court justices, it would be indeed be a privilege to see it.

    1. 35 years ago, in my youth, a former civil servant told me and some colleagues who were writing a report partly funded by government that parliament needed to reassert control over an over-mighty executive. Otherwise, he said, our report would be ignored.

      Nothing happened except that the slow power grab continued, with the executive often apparently telling parliament what it must do, how and when. Needless to say our report sank almost without trace, even though it concerned topics like renewable energy and climate change.

      Until recently, the trend only seems to have gone in one direction. The executive trampled more and more loudly on parliament’s rights. So let’s hope that it will now reverse.

  7. A question. I’m thinking about Johnson’s refusal on the Marr programme today to deny that he had attempted to persuade other EU heads of government to veto a Article 50 extension request.

    If he has indeed made that attempt, could it be regarded as an unlawful action attempting to nullify the effect of the Benn Act contrary to Padfield, even though the action has occurred prior to the date on which he is required to seek the extension?

    1. And a follow-up. If this is unlawful, how might we find out if he has done it, and if he has what remedy would be available?

  8. Excellent commentary, particularly the Dr. Who reference. What surprised me about the judgement was that even though legal is not my business, I could understand it quite easily. The very clear plain English made it more difficult for the press twist it into something it was not. They did try of course…

    1. The Dr Who reference will date. For me it already has. (I’ve never seen the referenced material and never will). Agree about the rest.

  9. Thank you for your very clear exposition of the case. I have to admit that I had naively assumed that other serious commentators in the national press would actually read the judgment before writing about it, but it was plain that most of them (if not all) had not. The judgement itself is a very fine piece of writing – I wonder who was the principal author?

  10. I showed Lady Hale’s entire delivery of the summary to my (adult, in part legal-trained) English students here in Berlin. They were highly impressed with the clarity of argument, its force – “a brilliant legal ruling” was the judgment of one – and what they saw as its skill in surely preempting any interpretation of the ruling as being political overstep. It naturally took but a second on Twitter to disabuse them of that notion, sadly.

  11. Should the Attorney General – despite his assertion that the Supreme Court was creating “new law” – be held accountable for unlawful advice? If so, how?

    1. He got it wrong. That’s all.

      He should maybe resign for having got such a big call so wrong, but that’s a bit of a hindsight judgment.

      In terms of legal advice, not clear whether he advised that it was untested, legally possible but a really bad idea, or just that it was legally possible. Also unclear whether his instructions left him room to give advice that was not purely legal.

      My guess is no (precisely because the advice might end up being disclosed).

      His outburst about parliament being dead and having no moral right to sit was more questionable, but presumably that little rant would be considered delivered in his capacity as a politician and member of government rather than as an officer of the court. I thought it made him sound ridiculous, but I am probably not the intended audience.

  12. Faith restored. Wonder if the Supreme Court are Springsteen fans.

    “Your flag flying over the court house
    Means certain things are set in stone
    Who we are, what we’ll do and what we won’t.

    It’s gonna be a long walk home.”

  13. Your final point is perhaps the most important

    “But future generation will not know that, at the time, such a welcome judgment was unexpected and could have gone differently.”

    I hope it will also be a turning point when it is seen as contemporaneous with the decision to impeach Trump.

  14. We in Scotland are not surprised because since 1320 this has been the Scottish cinsitutional position albeit the bit about the pm role but the people in Scotland have been sovereign since 1320 and the declaration of Arbroath it’s high time Westminster and England caught up with what democracy actually means

  15. Is it strictly true that the prorogation was for 5 weeks? Is it not the normal pattern for Parliament not to sit for the 3 weeks of the Party Conferences? And is it not also the pattern that, with Friday’s spent in constituencies, the *actual* amount of time for which Parliament was prorogued, amounted to 3-5 days?
    It is also worth considering the use to which Parliament has put this recall – not to the serious and urgent consideration of Brexit (as the Justices required) nor to the serious debates and bills to which you refer, but to protracted and fruitlessly repetitive argumentation.
    As a final point, is it not a matter of real concern at the very large amount of money involved in bringing this challenge to the Courts – by Gina Miller and others – should we not be more concerned with the justice denied to those without the same access to such funds?

    1. And thus you demonstrate that you do not understand (despite it being clearly stated in the article above) the difference between Parliament going into recess for conference season and it being prorogued.

      It was also widely expected that the conference recess wouldn’t happen because of the political crisis we’re in.

    2. No expert, but I thought the point was that Recess and Prorogue have different effects? E.g. bills in progress die if parliament is prorogued, but are just waiting if parliament is in recess; parliament can immediately be recalled from recess, etc.

  16. I’d love to see a con law mashup podcast with you, Roman Mars and Elizabeth Joh of “What Trump can teach us about con law”. How can we make it happen?

  17. Your blog goes from strength to strength. Thank you for such a lucid and quotable exposition. But as you and others have observed, the exposition of the judgement itself stands as a triumph of plain language.

  18. A very clear and interesting blog piece.

    It seems to me that for Johnson and others to state boldly that they disagree with the Supreme Court over their decision is perilously close to contempt. Am I correct in my belief that the function of the Supreme Court in this matter is to determine the law? Consequently, whilst one could be saddened or elated by their judgment, you cannot disagree with it – it becomes factually so because the highest court in the land has said that it is so. To what extent is the PM (and his chums) on very thin ice here?

  19. it was not a lawful hearing as the was misleading evidence and that fact the manga carta was not addressed in the said hearing and in fact in parliament one of the pp bring the case gave fase information to the house of commons by claiming the crown was not above the law , was done in a court of law but in fact is part of the magna carta 1215 English law , also it changes the fact we are now guilty and have to prove that we are not guilty ,

    1. “Manga Carta”

      Well, we’ve already had bishounen Jesus, and Maggie T conducting international diplomacy via the medium of Mah Jong; a cartoon version of our most important constitutional document isn’t *that* much of a stretch.

  20. No sensible person should object to this.
    Those who attacked the judgment as a “coup” have not read it, or understood it.
    Only those who want arbitrary executive power can complain.
    “Number 10” sources briefed compliant media legally illiterate ideas about what the government could do next, which were then uncritically reported.
    The govt. can go “full trump” because Joe Public does not know the law. At school I was warned that we should all know the law and lack of knowledge is no excuse for transgressors- which seems silly.
    Basic law should be taught from age 12 so that come 18, the issues can be weighed by Joe & me, and we can all then see that this govt. is acting way beyond the pale; that their lies will not wash.

  21. I think it was no coincidence that the judgement side stepped the need to find ‘bad faith’ when government sources were suggesting that if it went against them they could just prorogue again. By concentrating on the effect of the prorogation the Court immediately closed off the opportunity to go back to HM and give her a different ( true) reason for another prorogation of similar length.
    It was surprising bluster from the Govt and in the end it appears to have been a blunder too.

  22. by the way it fits in with the case that will have to go though the courts in regards to with holding of evidence , which the lawyers barristers and judges have taken part in , just more of the judges making law when the no law there , also how can he acted unlawfully when the no law there , it means now the courts can say at any time it was unlawful , and you can be convicted whether the a law in place at the time , in plain English you can now be found guilty of a crim even if the no law there , it just taken away last forms of justice from us the real ppl of this country and it not going away , the ppl are upset by it

  23. Thanks for your explanations on radio and online – For me, a layman, from the point at which Lord Pannick made the simple observation that, if this matter was not justiciable, then some future govt could prorogue for any amount of time it wanted – and if the court would not act now, then when?… I had little doubt what the verdict would be. I thought this was made all the more glaring when the justices questioned the govt on the matter and received what appeared to me to be a very arrogant reply amounting to “we do whatever we want, butt out”. It may be instructive for the future to collect headlines and editorials that have attacked and supported this judgement. If only to show why constitutional law should always remain boring.

    1. “Another view” that is weak and rests only on the (supposed) academic authority of its author. Worthless stuff.

    2. Read about the Policy Exchange on Wiki. Gove was one of the founders and it’s funding is opaque, it is difficult to believe it doesn’t have an agenda.

  24. Thank you for your clarification.
    I fully expected to have to read between the lines of the judgement for it’s fullest meaning and application, but it’s clarity was stunning. A beautifully robust piece of reasoning.

  25. You make the point here and elsewhere that constitutional law should be boring; that it’s only when it’s not working as it should that it becomes interesting. Although this may be true of British constitutional law, in the United States there is almost always a lively discussion about the import of Supreme Court decisions that involve interpreting and applying the country’s 18th century constitution. It is often said that this is due to the political nature of the US Supreme Court, but it seems to me that this invariably involves differing political philosophies rather than party political loyalties. In any case, if the UK courts begin to use judicial review more often to resolve constitutional disputes, the days of their work being boring may be over.

    1. No, not being boring in the US (in their very different circumstances) is also an indicator of a serious, though almost universally unacknowledged, problem.

      The US constitution has in effect become completely ossified: its internal mechanisms for amendment no longer have any practical effect. There can’t be explicit changes made to it throught the political system, there can only in practice be changes driven by legal interpretation. That leads to the vicious circle that judgments become more political, so justices become more political, so on it keeps going. If the US constitution worked as effectively as, say, the German one, it too would be very boring.

      Back to the UK, if Parliament does not like the effect of the Miller judgment it could, for example, legislate to prescribe how prorogation should work and who should have the power to do what. The US Congress has no equivalent power in relation to their Supreme Court judgments. That is not a healthy – or remotely democratic – state of affairs.

  26. Even though this considered piece comes after many unconsidered ones, it loses nothing by a short delay in commentary. The identification of the track taken by the Supreme Court Justices in finding their way through a very difficult problem, suddenly seems obvious and straightforward although DAG makes clear it was not. A very handy piece to cut out and keep in a dusty Constitutional Law book.

  27. Excellent commentary that, in its brevity and clarity, could have been penned by Lord Denning M.R. (Who doubtless would have reached the same conclusion).

    Worth pointing out that the judgment was drafted and agreed over a weekend, which in itself is deeply impressive.

  28. It is not only Nigella. Many people are grateful for your wise and decent commentary on unfolding events. You are helping to keep me sane, just.

  29. One thing I don’t understand about the legal discussion of the prorogation is that nobody is mentioning the Harper-Jean prorogation crisis in Canada in 2008-9 – including the Supreme Court in their judgement. It seemed obvious to me that this was a real example of the next float along in the parade of horribles implied by a non-reviewable prorogation power (in that Harper asked for and got a prorogation in order to prevent a vote of no confidence). It was also something that the Johnson administration would probably have done (it was widely trailed in pro-Brexit media) if they had not been prevented from doing so by the Grieve amendment to the Northern Ireland (Executive Formation etc) Act. And the kicker is that the Canadian precedent had established that the only check on a clearly abusive prorogation was the reserve powers of the Sovereign. In other words, if the Supreme Court hadn’t decided the question there was a real risk that the Queen would end up forced to.

  30. Not only will future generations wonder that the decision could have been any other, they will also wonder how the Prime Minister could profess ‘respect’ for the judiciary whilst, at the same time, declaring that he thinks the Supreme Court decision to be wrong. They will have the benefit of history books and, possibly, experience to understand how the Prime Minister was putting his own interests above his duty to act lawfully within a representative democracy and not try to set ‘the people’ against Parliament and the Judiciary.

  31. It might be worth adding a footnote to record that the Supreme Court quickly dismissed any argument about this being about Brexit, and how a tweet from a particular law and policy commentator (with a large porn bot following) caused them to change the title on their webpages from Brexit to Prorogation.
    That, and how a spider brooch was made popular.

  32. Thank you for this excellent summary.
    As a non lawyer I confess some surprise that it was ever thought the judgement could go the other way.
    Unless anyone amoung their Lord and Ladyships actually thought that Parliament was not both supreme and the highest court in the land. If they had decided the case in favour of the government they would actually have altered the constitution. They would having be confirming that the Divine Right of Kings had simply moved on to become the Divine Right of Prime Ministers. I thought that would have been unlikely.
    Deciding as they did the Supreme Court simply and rather conservatively, preserved the UK constitution.
    http://www.progressivepulse.org/brexit/unconstitutional-oligarchy

  33. What a week, indeed, and thank you for your ever-cogent round-up. The myopia of hindsight.

    You state, “The court was not to make any order, as merely declaring the law was sufficient in this case.”

    Presumably that is not literally correct, given that the judgment concludes, “Thus the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is allowed. The same declarations and orders should be made in each case.”

    As you imply, no coercive order is required, since the de facto declarations within the judgment have had practical effect. But the Supreme Court seems to have promised declaratory and quashing orders all the same. I wonder whether they have yet been perfected and made public.

    With the Miller and Cherry cases having swept through various courts at great speed, the judgments glossed over the fact that the sealed prorogation commission was part of the same letters patent as the end-of-session royal assent – a jobshare required by Form B in Part IV of the Schedule to the Crown Office (Forms and Proclamations Rules) Order 1992. Never mind the Supreme Court, letters patent given under the Great Seal of the Realm and The Queen’s Sign Manual are not immune even from the strictures of statutory instruments.

    Since the Benn act had assent notified a few hours earlier than prorogation, on 9 September, the only bill assented to at prorogation itself in the early hours of 10 September was the aptly named Parliamentary Buildings (Restoration and Renewal) Act 2019. It was published online that evening. Hence the Supreme Court’s quashing order raises also the novel question of the severability of the letters patent and whether the purported restoration act is still merely a bill.

    As foreshadowed by the Speaker’s 25 September announcement that royal assent for the restoration act “will need to be re-signified”, the act was duly expunged by HMSO that afternoon.

    It is a shame that all concerned did not opt instead for a deeming act declaring the original assent valid, to avoid uncertainty as to whether the assent will, in law as well as fact, have been given twice. There is now the awkwardness of what to do with the original of the self-styled Act which the Clerk of the Parliaments will have indorsed with an assent date of 10 September in accordance with the Acts of Parliament (Commencement) Act 1793, not to mention copies already archived, downloaded and published, all bearing the authority of the Queen’s Printer.

    At least with the abolition in 2016 of the use of vellum for the content of acts, no calves will have died in vain for the 32 pages of the premature restoration act. Who knows whether careful scraping will enable re-use of the still-customary vellum cover.

  34. The legal principle identified by the Court can presumably be expressed in broader terms: “a decision … will be unlawful if the [decision] 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.”
    Is that not rather revolutionary? Where does it leave 95% of the activities (or at least the aspirations) of government whips?

  35. You wrote that the fact there was no obvious remedy was a further reason the case was too close to call.

    My instinct was that the ‘no obvious remedy’ issue was going to be helpful to the appellants: it allowed for the court to kick the responsibility back to parliament, without having to make an order that could be perceived as too intervening and political.

    That there was a good and effective ‘remedy’ for the case in making a declaration against prorogation, and then relying on parliament to take the next step gave them confidence to proceed. I think Pannick’s point about the senior-junior relationship between parliament and executive might have been helpful here.

  36. There was a clear remedy exercised in Charles I’s forced prorogation.

    Perhaps the imminent threat of such a remedy might help future Prime Ministers from over-reaching with the Royal Prerogative?

  37. Have you read John Finnis’s Equally thorough and clear article which presents a totally different view on the judgement from yours? He argues, from a well-established reputation for unimpeachable expertise on constitutional law that the judgement was wholly unsound. I am not a lawyer but very interested in this judgement and would welcome your views on what he says given that the conclusion could not disagree more with what you say here. Many thanks.

  38. Great post – thanks. I’ve no training in the law whatsoever, just an interested citizen, but I read the judgement several times and found it beautifully written and fairly easy to understand – all hail (!) plain English.

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