Friday, 27 September 2019

Case of Prorogation ~ Supreme Court judgment (1)

My previous post (24 September) noted the Supreme Court's unanimous judgment in the two Prorogation appeals. The court held that the advice given to Her Majesty by the Prime Minister (Boris Johnson) to prorogue Parliament was justiciable and also unlawful.  The consequence of the advice being unlawful was that the Order in Council of 28 August 2019 was also unlawful, void and of no effect and should be quashed with the result that Parliament was not prorogued.

When this litigation commenced, there were
good grounds to believe that the courts would follow what was undoubtedly the "received legal wisdom" that matters of high politics were not justiciable - previous post 29 August 2019.  The Attorney-General advised the government that the prorogation was lawful - see Hansard 25 September 2019  where the record is set out of what was, at times, an ill-tempered House of Commons debate about the Attorney's advice on prorogation.

Judgments:

The Court of Session (Outer House), the High Court of England and Wales, and the High Court of Northern Ireland held that the prorogation was not amenable to judicial review. The Court of Session (Inner House) took the opposite view.  Here are those judgments:

Cherry [2019] CSOH 70.

Gina Miller v Prime Minister and others [2019] EWHC 2381 (QB)

McCord, JR83 and Jamie Waring v Prime Minister and others [2019] NIQB 78

Joanna Cherry QC MP v Advocate General [2019] CSIH 49.

The Supreme Court's judgment is at - 

Cherry and others v Advocate-General for Scotland [2019] UKSC 41

The unanimity in the Supreme Court - all 11 justices - is remarkable.  Neither in the Supreme Court nor in the courts below did any judge decide that the advice was both justiciable and lawful.

Preliminary:

The Supreme Court's judgment begins by stating that the issue in the appeals was not about "when and on what terms the United Kingdom is to leave the European Union."  The issue was 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."

Prorogation is described by the court at paras. 2 to 6 and the run up to this prorogation at paras 7 to 14.  It would be easy to glide past para 7 but it is noteworthy:

Para 7 states - "As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis. Immediately after the referendum, Mr David Cameron resigned as Prime Minister. Mrs Theresa May was chosen as leader of the Conservative party and took his place."  [My emphasis].

Particular attention should be paid to the written materials available to the court - a Memorandum from the Director Legislative Affairs (Nikki da Costa) [17], Prime Minister's written comments [18], Nikki da Costa Memo 23 August regarding arrangements for the prorogation [19], Minutes of a Cabinet Meeting held by conference call on 28 August [20] and the Prime Minister's letter to MPs [21].  The court did not have any sworn statement from the Prime Minister (or anyone else) setting out the reasons for the prorogation.

At paras. 23 to 27 the court looked at the proceedings in the Scotland and the High Court of England and Wales.

At para 27, the four issues for decision are set out:

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
(2) If it is, by what standard is its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?

Justiciability:

It was argued for the government that the appeals did not raise any legal question on which the courts could properly adjudicate - i.e. non-justiciability. The Prime Minister was accountable only to Parliament and the courts should not enter the political arena but should respect the separation of powers - [28]. Essentially, that was the "received legal wisdom." The High Court of England and Wales as well as the Court of Session (Outer House) accepted that argument but it was rejected by the Court of Session (Inner House) - [29].

Four introductory points were then set out - [30 - 34]:
  • The power to order prorogation is a prerogative power - that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice - [30].  The court then remarked - "It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter."  Hence, whether the Queen has any right to refuse a prorogation remains an open question.
  • Courts do not decide political questions but the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it - [31]. The courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries.  Two examples are given at [32].
  • The Prime Minister's accountability to Parliament does not itself justify the conclusion that the courts have no legitimate role to play - [33]. During a prorogation there is no accountability to Parliament.  Also, the courts have a duty to give effect to the law, irrespective of the minister's political accountability to Parliament.
  • If an issue before the court is justiciable then deciding it will not offend against the separation of powers - [34].  Effect is given to the separation of powers if the court acts to ensure that the government does not use prorogation unlawfully.
The court continued - [35] - by saying - "In the case of prerogative powers, it is necessary to distinguish between two different issues."  [My underline].  Those issues are then discussed at [35-37]. 


The issue issue is whether a prerogative power exists, and if it does exist, its extent? That is undoubtedly a question of law and within the jurisdiction of the court - [35].


The second issue - if a prerogative power exists and has been exercised within its limits, whether it is open to legal challenge on some other basis - [35].

The second issue may raise questions of justiciability. "The question then is not whether the powers exist, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review" - [35].  In the Council of Civil Service Unions case [1985] AC 374, the House of Lords concluded that the answer to that question would depend on the nature and subject matter of the particular power being exercised.  In that case, Lord Roskill mentioned dissolution of Parliament as one of a number of powers whose exercise was in his view non-justiciable.

It was necessary to decide whether the present case raised a question of the legal limit of the power and whether that limit had been transgressed or whether it concerned the lawfulness of a particular exercise of the power within legal limits. That question was closely related to the identification of the standard by reference to which the lawfulness of the PM's advice was to be judged - [37].

The standard:

Prerogative power, unlike statutory power, is not governed by any document setting out its limits but every prerogative power has its limits and it was the court's function to determine, when necessary, where they lie. The boundaries of a prerogative power relating to Parliament were likely to be found in fundamental principles of constitutional law - [38].

The UK does not have a document entitled "The Constitution" but it does possess a constitution established over history by common law, statutes, conventions and practice.  It is not codified and is flexible enough to develop further. It includes principles of law enforceable by the courts in the same way as other legal principles. The court has the responsibility of upholding the values and principles of the constitution and making them effective.  It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed these limits.  The courts could not shirk that responsibility merely on the ground that the question raised is political in tone or context - [39].

The wording used by the court at [39] is interesting. The courts have always had the task of adjudicating upon questions of law whether they have constitutional impact or not. The use of phrases such as "the court has the responsibility of upholding the values and principles of the constitution and making them effective" is language supportive of the notion that the Supreme Court is becoming a "constitutional court." That is a notion which may yet prove to have very far-reaching implications.

At [40] the court gave further examples of legal constitutional principles - the principle that justice must be administered in public, the principle of the separation of powers, and the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without compensation.

Two fundamental principles of constitutional law were relevant to the present case -[41]. - first, Parliamentary Sovereignty - i.e. laws enacted by the Crown in Parliament are the supreme form of law in our legal system.  In cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers. The court gave 3 examples - Case of Proclamations 1610, Attorney-General v De Keyser's Royal Hotel 1920, Fire Brigades Union case.

Parliamentary sovereignty would be undermined as the foundational principle of the constitution if the executive could, through prerogative power, prevent parliament from exercising its legislative authority for as long as it pleased. An unlimited power of prorogation would be incompatible with parliamentary sovereignty - [42].  However, the court continued - [45] - to note that there was no question that a short prorogation between Parliamentary sessions was lawful.

The second principle was Parliamentary accountability - [46]. In Bobb v Manning [2006] UKPC 22, Lord Bingham had said that "the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy."  Parliamentary accountability required the executive to report, explain and defend its actions and it protected citizens from the arbitrary exercise of executive power. However, this key principle was not placed in jeopardy if Parliament stands prorogued for the short period which is customary between sessions - [47].

In relation to both principles, the same question arose - What is the legal limit on the power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions - [48].

To answer that question the court looked at how, for STATUTORY powers, the court has dealt with situations where the power conflicted with constitutional principles - [49]. The approach adopted was to focus on the EFFECT of exercising the power.  Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification - [49].  Prerogative powers were limited by common law, including, constitutional principles with which the power would otherwise conflict.

In [50] the court then stated the test to be applied and began with the words - "For the purposes of the present case ..."  

"For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: 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."

The final sentence in the test appears to be further explained by the court at para 51 where it is said that it is the court's responsibility to determine whether the Prime Minister has remained within the legal limits of the power and, if not, the final question will be whether the consequences are sufficiently serious to call for the court's intervention.

The extent to which a prorogation frustrates or prevents Parliament's ability to perform its legislative functions and its supervision of the executive would be a question of fact which prevents, according to the court, no greater difficulty than many other questions of fact which are routinely decided by the courts. In deciding whether the facts provided reasonable justification the court would have to bear in mind that a decision to advise a prorogation is within the area of responsibility of the Prime Minister and that it may involve matters of political judgement. The court would have to consider any justification that might be advanced with sensitivity to the responsibilities and experience of the PM, and with a corresponding degree of caution - [51].

At [52] the court said that the standard set was one which determined the limits of the power, marking the boundary between the prerogative and the constitutional principles of Parliamentary sovereignty and accountability.  The court has therefore based its judgment on the long-established point that the courts may rule on the extent of prerogative powers - a proposition that was not opposed by counsel.

The reasonable justification test may not always prove easy to apply. The test seems to be a form of rationality review which may yet be developed further in subsequent case law.  The test places the focus on the EFFECTS of a prorogation and not on the motives for doing it.  (With regard to motive see paras 53 and 54 of the judgment - headed The alternative ground of challenge). Nonetheless, it would appear that future advice to prorogue will need to be supportable by a clear analysis of the reasons for it which the court could then examine.

A second post looks at the court's judgment as to lawfulness and remedy and also at some of the extensive early reaction to the case.

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