Friday, 27 September 2019

Case of Prorogation ~ Supreme Court judgment (2)

Links added at the end of the post .....

This is the second of two posts considering the Supreme Court's judgment in the prorogation appeals.  The first post looked at how the court held that the advice of the Prime Minister was justiciable and at the standard they set down for adjudicating upon lawfulness. This post considers the remainder of the judgment which addressed lawfulness itself and remedy.

Was the advice lawful?

The court pointed
to the fact that the UK is a representative democracy - [55]. The Government exists because it has the confidence of the House of Commons.  [Aside: Perhaps that is a debatable point in the present circumstances where a minority government soldiers on]. Did the Prime Minister's action have 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 - [56].

[56] notes that the prorogation was not a normal prorogation in the run-up to a Queen's Speech. It was for 5 weeks out of a possible 8 weeks between the end of the summer recess and exit day on 31 October. The court then discussed what MPs might have decided to do had they been sitting - e.g. cancelling the conference recess. [Actually no intention to do this appeared and, at the time of writing, the Liberal Democrats and the Labour Party have held their conferences]. Of course, had MPs decided to go into recess for the 3 week period they would, but for the prorogation, have been able to hold government to account and they could have cancelled the planned recess had they wished to do so.

The circumstances of this prorogation were "quite exceptional" - [57]. A fundamental change was due to take place in the UK's constitution on 31 October. It was not for the court to say whether this is a good thing or not. "The people have decided that."  [Aside: refers to the referendum result of 23 June 2016 which, over 3 years later, may or may not still be the view of the British people].  It could not be doubted that the House of Commons as the directly elected representatives of the people has a right to a voice in how that change comes about.  The House demonstrated by enacting the European Union (Withdrawal) (No 2) Act 2019 - (previous post) - that it did not support the PM on leaving the EU without an agreement - [58].

Was there reasonable justification for the prorogation - [58]. It was apparent from the documents that no reason for the 5 week prorogation was given. The focus was on the need for a new Queen's Speech. Why did that require 5 weeks?

Evidence submitted by Sir John Major - whose counsel addressed the court - was that a Queen's Speech prorogation normally requires 4 to 6 days. Drafting the speech itself does not take much time once the substance is clear - [59].

The memorandum by Nikki da Costa is discussed at [60] and notes several omissions - e.g. it did not discuss what parliamentary time might be needed to approve any new withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018. Also, it did not discuss the impact of prorogation on the special procedures for scrutiny of delegated legislation which are included in the 2018 Act. [The latter issue was raised by the Public Law Project just before the appeal was heard].  Nowhere was there a hint that the PM, in advising the Queen, was more than a government leader seeking to promote its own policies; "he has a constitutional responsibility." [My emphasis].

From this it followed that the decision was unlawful - [61].

Remedy:

Gina Miller (appellant from the High Court of England and Wales) sought a declaration that the advice given was unlawful.  The court said that it could certainly do that but the question was whether it should do more, in order to make clear the legal consequences.  The Court of Session (Inner House) had ruled that the advice was unlawful and that any prorogation that followed was also unlawful and thus null and of no effect.  Was Parliament prorogued or not - [62].

At this point Article IX of the Bill of Rights 1688 entered the argument. The government argued that the prorogation itself was a proceeding in Parliament and thus could not be questioned in the courts.  The government also argued that, reasoning back from that, the Order in Council could also not be challenged.

For more on the Bill of Rights see R v Chaytor and others [2010] UKSC 52.  Also Parliament - First Report - Parliamentary Privilege 1999 and Erskine May para 12.4 - Freedom of Speech

In this previous post I argued that the prorogation ceremony appeared to be a proceeding in  Parliament but that the Order in Council, made at Balmoral by the Privy Council, was not such a proceeding. That view is, at least in part, inaccurate in the light of the court's decision that the prorogation ceremony was something imposed upon Parliament from outside and Members of Parliament had no vote on it. It was not the core or essential business of Parliament. On the contrary, it ended Parliament's business - [68].  It could not be described as a proceeding in Parliament.

The court was not precluded by Art IX or any wider Parliamentary privilege from considering the validity of the prorogation itself - [69].  The advice to prorogue was unlawful.  It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful and should be quashed.  The result was as if the Commissioners had walked into Parliament with a blank piece of paper.  The prorogation itself was unlawful, null and of no effect.

It followed that Parliament had not been prorogued - [70]. It was for Parliament to decide what to do next and a recall was not required under the Meeting of Parliament Act 1797.

In the events that followed, Parliament resumed sitting on Wednesday 25 September.  The Speaker of the House of Commons made a statement - Hansard 25 September - in which he said -

"I will arrange for the citation for that judgment to be entered in the Journal of this House and accordingly direct that the item relating to the Prorogation of Parliament in the Journal of Monday 9 September is expunged and the House is instead recorded as adjourned at the close of the business. I instruct the Clerk to correct the Journal accordingly and to record the House to have adjourned at the close of business on Monday 9 September until today.

Members should also be aware that Royal Assent to the Parliamentary Buildings (Restoration and Renewal) Bill, which formed part of the royal commission appointed under the quashed Order in Council, will need to be re-signified."

The latter point has resulted in some debate as to whether the court effectively dispensed with an Act of Parliament which had received Royal Assent signified by the Prorogation Commissioners when they attended Parliament on 9 September.  The answer to this may be that since the Commissioners had a "blank piece of paper", Royal Assent was not properly signified. Whether more on this emerges remains to be seen!  NB: The European Union (Withdrawal) (No 2) Act 2019 received Royal Assent prior to the prorogation ceremony.

On 19 September, the government published its "Submissions on Relief"  Here the government referred to Royal Assent having been given for the Parliamentary Buildings Bill. The government also argued that the prorogation process in Parliament was protected by Article IX of the Bill of Rights. Regarding remedy, the government argued for a declaration only.

Reaction:

Political reaction was, broadly-speaking, divided mainly along lines akin to Brexit.  Those favouring leaving with or without a deal tended to be against the court's decision and those favouring remain (or perhaps a further referendum) were in favour of the judgment.  Almost none of this reaction was properly based on a thorough reading of the judgment. Indeed, it was evident in the debate about the Attorney-General's legal advice that few MPs had looked at the judgment in any detail.  Frankly, it was an ill-tempered and unimpressive debate unworthy of a House of Commons that had just reassembled after the purported prorogation - (now officially referred to as an adjournment)!

Some of the more "hot-under-the-collar" MPs even called for the abolition of the Supreme Court or other action to tame its powers including the idea of political involvement in judicial appointments to the court.  It was, of course, exactly this type of political reaction that the "received wisdom" against court involvement was aimed at preventing.

Legal reaction appeared to be, again broadly-speaking, favourable to the court. There is already an impressive volume of such "early-reaction" material and some of it can be found via the links that follow. There will undoubtedly be much more to come as lawyers examine the implications of the judgment.

Links:

Judicial Power Project 29 September 2019 - Prof. Richard Ekins - Debating the Supreme Court's prorogation judgment

The Times 24 September (£) - Jonathan Sumption - Supreme Court ruling is the natural result of Boris Johnson's constitutional vandalism - "the judgment makes the courts the ultimate arbiter of what political reasons are good enough"

Public Law for Everyone 24 September - Professor Mark Elliott, Cambridge -The Supreme Court's judgment in Cherry / Miller 2: A new approach to constitutional adjudication?

UK Human Rights blog 27 September -  A rogue prorogation

UK Constitutional Law Association - Jack Simson Caird 27 September - The Supreme Court and Parliament: The constitutional status of checks and balances ..... and several other posts.

Administrative Law Matters 24 September - Paul Daly - Some qualms about R (Miller) v Prime Minister [2019] UKSC 41

Brexit Time 24 September - Professor K A Armstrong - The Supreme Court as a Constitutional Court: Reflections on Cherry / Miller

Minted Law - Robin Murray 26 September - Brenda and the Supremes: Is the Supreme Court inventing a new tune?

Prospect Magazine - David Allen Green 27 September - To save Britain's democracy we must fix our creaking constitution 

Matthew Scott - The Telegraph 24 September (£) - We'll thank the rule of law if Jeremy Corbyn ever gets into power - "It is in the nature of the law that nobody can anticipate every conceivable future constitutional crisis. What we can certainly anticipate is that many of those complaining most loudly about today’s Supreme Court decision would become the staunchest defenders of judicial independence and Parliamentary sovereignty if it was Jeremy Corbyn or, more plausibly, a younger and more energetic successor, who was trying to suspend Parliament in order to bring about the socialist transformation of society."

Scottish Legal News 25 September - Conor Gearty: Johnson's behaviour made the Supreme Court case about the very existence of the rule of law - "the Court has deduced from the fundamental principles of representative democracy and accountable government a set of constraints on power that flow from these principles and which must as a result adhere to all exercises of public power including those of the most senior political figures in the land (paras 41 and 46 of the judgment)."

Professor John Finnis - Judicial Power Project 28 September - The unconstitutionality of the Supreme Court's prorogation judgment - "the judgment is an inept foray into high politics and should be recognised as a historic mistake, not a victory for fundamental principle."

London Review of Books - Sir Stephen Sedley - In Court 

Verfassungsblog -Maximilian Steinbeis -Without the benefit of hindsight - "What the Supreme Court judges have done is to demand justification. If the Government prevents Parliament from exercising its constitutional functions in such exceptional times for such an exceptionally long time, they’d better have valid reasons. They didn’t. No justification at all."

Law and Policy Blog - David Allen Green - 29 September - That was the constitutional week that  was

EU Law Analysis - Alan S. Reid - 29 September - The Justices of the Supreme Court: The enemies of Anti-democratic Demagogues

UK Constitutional Law Association 30 September - Mike Gordon (Professor of Constitutional Law, University of Liverpool) - The Prorogation case and the political constitution

UK Constitutional Law Association 26 September - Alex Green (Assistant Professor of Law, Hong Kong University) - Our Constitution, Accountability and the limits of the power to prorogue

Democratic Audit 16 September - Pippa Catterall - Can politicians act with impunity? The constitutional principles at stake in the prorogation case 

Institute for Government 25 September - Raphael Hogarth - The Supreme Court has fortified Parliament's "constitutional role" - and its own.

UCL Constitution Unit 27 September 2019 - Professor Meg Russell - The Supreme Court ruling in Cherry / Miller (No 2) and the power of Parliament 

London School of Economics - Brexit - Robert Brett Taylor (Aberdeen University) - The prorogation ruling has strengthened the political accountability of those in power

Harvard Law Review 3 October 2019 - Professor Nick Barber (Professor of Constitutional Law and Theory at Oxford University) - Prorogation, Prerogative, and the Supreme Court

Philippe Lagasse - Taming the Crown in Court: Cherry / Miller 2 and the Waning Executive Dominance in the UK

Policy Exchange 15 October 2019 - The Case of Prorogation - Professor Martin Loughlin argues that the Supreme Court's judgment is wrong

Kenneth Campbell QC 14 October 2019 - A very British non-coup

Other:

The Supreme Court's judgment is at - R (Miller) v The Prime Minister [2019] UKSC 41 or Cherry and others v Advocate-General for Scotland [2019] UKSC 41

Written case submissions

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