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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.)
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.
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.
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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