Written Evidence from Professor Richard Ekins

 

The Supreme Court’s prorogation judgment and its constitutional implications

 

Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Professor of Law, University of Oxford

 

Introduction

 

  1. The Supreme Court’s prorogation judgment, Cherry/Miller [2019] UKSC 41, is momentous.  It departs radically from established law and does serious damage to the integrity of the political constitution.  Parliament should legislate to reverse the judgment – not to revive the recent prorogation but rather to resist the judicialisation of politics by restoring the limits on the Court’s jurisdiction, limits which the judgment abandons or evades. 

 

How to understand prorogation

 

  1. The power to prorogue Parliament is a prerogative power exercised by Her Majesty on the advice of the Government.  The Government is accountable to the Houses of Parliament, especially the Commons, and ultimately to the electorate for how the power is exercised.  The Government is responsible for managing the business of Parliament, not only in terms of framing the legislative agenda in the Commons but also in deciding on the timing and length of parliamentary sessions. 

 

  1. At least until the Supreme Court’s recent judgment, the Government was legally entitled to prorogue Parliament for its own advantage in the management of parliamentary business. The whole sessional arrangement of parliamentary business is for the Government’s benefit. Prorogation is often uncontroversial but it is typically timed and framed for the Government’s political advantage.  The Government benefits from the political theatre of a Queen’s Speech, the termination of a session brings unwanted business (including Private Members’ Bills that the Government does not support) to an end, the limitation on the length of the session incentivises the settlement of outstanding disputes, and a Bill may need to be passed in more than one session in order to be enacted by way of the Parliament Acts 1911 and 1949.

 

Political and legal controls on prorogation

 

  1. Prorogation is sometimes politically controversial – not often, in recent years, in the UK, but somewhat more often in other Westminster systems.  The power is subject to political controls, including the capacity of the Commons to withdraw confidence from the Government and the loss of electoral support that might result from its abuse.  There are also very significant practical limitations on prorogation, insofar as it is impossible in the modern world to govern without frequent recourse to Parliament, for supply and legislation. 

 

  1. The prerogative power to prorogue Parliament is ancient and well-settled and for centuries has not been subject to any legal limit save as specified by Act of Parliament.  The Fixed-term Parliaments Act 2011 terminates the prerogative of dissolution but leaves untouched the prerogative of prorogation.  The Supreme Court’s judgment noted various statutory requirements as to the sittings of Parliament, including statutes from the 14th and 17th centuries and most recently the Northern Ireland (Executive Formation etc) Act 2019. 

 

Unconstitutional prorogation

 

  1. Prorogation may be unconstitutional if it is used by the Government in an attempt to remain in office when confidence has been withdrawn or in order to avoid a vote of no confidence being called and lost.  However, even in this context, there may be circumstances in which prorogation is justified, including if there is no prospect of a stable alternative government being formed or an election held.  The Queen arguably has a reserve power to refuse to grant a prorogation if the purpose is to avoid withdrawal of confidence or to remain in office after confidence has been withdrawn. 

 

  1. However, that a prorogation may be unconstitutional does not meant that it is unlawful.  It is possible, of course, to misuse the power to prorogue.  The remedy for this misuse – in the constitution as it has stood for hundreds of years – is political, which might include subsequently enacting legislation to limit prorogation.  There is no convention that governs prorogation in particular but it is very difficult to see constitutional justification for prorogation when or if the Government has lost the confidence of the Commons, save where the prorogation is the precursor to a dissolution. 

 

  1. It is possible that the Government might abuse the power to prorogue Parliament by failing to leave time for confidence to be withdrawn.  This was not the case in the recent prorogation on 10 September, of course, for there were a number of sitting days during which it was open to the Commons to withdraw confidence or to support a motion under the Fixed-term Parliaments Act for an early election or a Bill providing for an early election.  It might or might not be unconstitutional for the Government to prorogue Parliament without providing Parliament with an opportunity first to meet and withdraw confidence.  The sanction for sharp practice in this context is political, with the possible reserve power of Her Majesty to refuse advice to prorogue if the confidence principle is breached. 

 

The non-justiciability of prorogation

 

  1. It was, until the Supreme Court’s judgment, very clear that advice to Her Majesty to prorogue Parliament, let alone a prorogation itself, was not justiciable.  In the famous GCHQ case, Lord Roskill stated that while the exercise of some prerogative powers could properly be subject to judicial review, there were some prerogative powers where this was clearly not permitted.  His examples included dissolution, foreign affairs, defence of the realm and appointment and dismissal of ministers.  He did not mention prorogation but it clearly falls within his list, not least since it is so closely related to the prerogative of dissolution. 

 

  1. The Supreme Court’s judgment evades the limitations on justiciability, ignoring the Divisional Court’s very powerful judgment that prorogation was not justiciable, by what is, with respect, a sleight of hand.  The Court asserts that it has always been for courts to determine the scope of prerogative powers (or to establish whether they exist), but not to control their exercise.  This is true.  However, the scope of the power to prorogue was, until this judgment, obvious and unquestionable.  The Court effectively collapsed scope and exercise by asserting that the power does not extend to a prorogation that unreasonably limits Parliament’s capacity to discharge its constitutional function.  Or, to put the point another way, the Court holds that a prorogation will be unlawful (that it will fall outside the scope of the prerogative) if it has a significant effect on Parliament’s function and if the Prime Minister does not provide the Court with a satisfactory reason to justify this effect.  This turns the law on its head. 

 

  1. The Supreme Court attempts to rely on two fundamental principles in order to rationalise the conclusion that prorogation should be subject to judicial oversight and control.  The first is parliamentary sovereignty.  The second is parliamentary accountability.  These are important principles.  The first is legally fundamental in our constitution.  The second is central to the workings of our political constitution.  But the Court construes both principles in a novel and misleading fashion, which does not support judicial intervention.

 

Misstating parliamentary sovereignty

 

  1. Parliamentary sovereignty is a rule about the authority of the Queen-in-Parliament and the authority of Acts of Parliament.  Parliamentary sovereignty is not abandoned, or somehow qualified, when Parliament is not in session.  A prorogation does not terminate parliamentary sovereignty; neither does recess, during which the Commons may only be recalled by the Government, or a dissolution.  The Court implicitly understands parliamentary sovereignty to be a principle requiring the maximisation of practical opportunities to legislate, including legislation that is procured in breach of established parliamentary procedure and principle and which takes over government in a way that is unconstitutional.  In our constitution, the Government has never been required to maximise the parliamentary time available to its opponents, especially if the legislation they seek to advice is, in the Government’s judgment, unconstitutional or injurious to the national interest.  Prorogation to forestall enactment of such legislation is a course of action open to the Government.  The Court’s tacit assumption that this would violate parliamentary sovereignty is ahistorical and unsound.

 

  1. The Supreme Court recites various statutes that have required regular sittings of Parliament and concludes that their existence confirms there must be legal limits on the power to prorogue.  With respect, this is a non sequitur, especially since the Court’s next step is to note that none of these limits apply in this case such that the Court must itself devise a further limit which Parliament has not enacted.

 

  1. Parliament legislated as recently as July this year about the effects of a prorogation in the autumn: see the Northern Ireland (Executive Formation etc) Act 2019.  The Government’s prorogation complied with the terms of that Act of Parliament, which made specific provision for prorogation in autumn.  It is extraordinary that the Supreme Court chose to impose further limitations in addition to those which Parliament had enacted.  Its judgment does not address this argument, which the Government made and the Divisional Court accepted.  This Act was the relevant exercise of parliamentary sovereignty from which the Supreme Court had no authority to depart.  The Supreme Court did precisely what the Divisional Court had refused to do: that is, adopt an inflated, novel idea of parliamentary sovereignty, the point of which was not to vindicate the authority of the Queen-in-Parliament but was to invite and justify judicial interference in the relationship between Government and Parliament.

 

Judicialising parliamentary accountability

 

  1. The Supreme Court’s reliance on the principle of parliamentary accountability is no better.  The principle underpins a range of conventions and practices which make up our political constitution, in which the Government is formed by and accountable to the Houses of Parliament, especially the Commons.  The principle is sometimes noted by courts but it is not a legal principle and cannot justify novel judicial intervention.  On the contrary, the principle is a reason for courts to avoid intervention, precisely because the proper control on the abuse of some powers (like prorogation) is political rather than legal.  The Supreme Court turns the principle on its head by invoking it as a ground for judicial intervention.  The judgment, written by Lady Hale and Lord Reed, flouts Lord Reed’s warning, in the first Miller judgment, that the “the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary”.  Lord Reed was right then. 

 

  1. The Court seems to have justified its decision to break new legal ground – to invent a new legal limit on prorogation – on the grounds that this prorogation had “an extreme effect upon the fundamentals of our democracy”.  This is not a legal judgment.  It is a political judgment which the Court had neither the competence nor the authority to make.  The proper place for the controversy about prorogation to be settled was in the political process. 

 

  1. The Court may have been inclined to intervene in this case not only because of its overstated and contestable political evaluation of the effects of this prorogation, an evaluation that turns on the Court’s understanding of Brexit politics and timing.  That is, the Court may also have been concerned to arm itself to quash other controversial prorogations in future cases, perhaps when prorogation did not leave parliamentary time for a confidence vote.  But it is not for the Court to change the law to compensate for the deficiencies it believes exist in the political process.  The problem is not just that the Court has no authority to change our constitution in this way, nor that it made a radical change in the constitution on the basis of limited argument after a process in which few could participate.  The problem is also that the standard the Court imposes cannot be applied without political judgment.

 

The uncertainty of the law the Court has made

 

  1. It must at best be uncertain when in future cases prorogation will be lawful.  The Court’s judgment is radically deficient as a lawmaking act, which is what in practical terms it was.  It makes unlawful prorogation that has a significant effect on Parliament’s functions, when the Prime Minister fails to provide the courts with a satisfactory reason.  This might seem to make a long prorogation presumptively unlawful.  But it might also make unlawful a prorogation that has the effect of preventing enactment of some Bill.  This is a traditional reason for prorogation, but the Supreme Court’s judgment will at a minimum invite legal challenge to prorogation in these circumstances.  The Court has not introduced a workable legal standard.  It has invited the Government’s political opponents to disarm it by way of judicial review rather than to challenge it politically as our constitution requires.  Strictly, the Court’s ruling authorises every court in the country to hold that prorogation is unlawful.  In practice, the Supreme Court will require such judgments to be speedily appealed so that it may resolve them itself.  This is a dangerous move towards a kind of constitutional court, which Parliament did not choose to introduce in creating the Supreme Court. 

 

  1. The Supreme Court may have reasoned that it could protect the Queen from controversy by dispensing with any need for Her to exercise a reserve power to refuse to prorogue Parliament.  If this is how the Court in fact reasoned, it was a mistaken chain of reasoning.  It distorts the relationship between Sovereign and Prime Minister and substitutes the Court’s judgment about constitutionality for the Queen’s judgment. 

 

  1. The Court has invented a new legal standard, which is deeply uncertain but which clearly imposes far-reaching limitations on Government action, most obviously in relation to prorogation, but quite possibly in relation to other prerogatives or public action.  The Court’s standard in no way replaces the grounds on which Her Majesty might have been entitled to refuse advice to prorogue Parliament.  Instead the judgment sweeps away not only the reserve power but also the political controls that are the main constraint on misuse.  This invites the further judicialisation of politics.  It also threatens the balance of the Westminster constitution, disarming the Government from using a power which, for so long as it enjoys the confidence of the Commons, it is entitled to use in an attempt to govern well.  The Court’s judgment contributes, in the present context, to the intensification of our present political-constitutional crisis, in which the Commons is unwilling to withdraw confidence or enable an early election yet is willing to legislate to compel executive action

 

The relevance of the Bill of Rights 1689

 

  1. The Prime Minister’s advice to Her Majesty to prorogue Parliament was non-justiciable.  The prorogation itself was also non-justiciable.  This conclusion follows not only from several centuries of unbroken constitutional law and practice, as well as the absence of standards the court might apply other than by exercising controversial political judgment.  It is also established, conclusively and authoritatively, by Article 9 of the Bill of Rights 1689, which provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court.  The Supreme Court avoids this stricture by taking proceedings to be tantamount to decisions and to construe the Commission that prorogued Parliament, and by implication the Queen Herself, to be an outside force acting on Parliament rather than operating within it.  But in truth the Crown acts within Parliament, both in giving assent to legislation (the same Commission that prorogued Parliament also signified royal assent to the Parliamentary Buildings (Restoration and Renewal) Bill), and in opening and closing sessions of Parliament.  The authorities of both Houses recognised the prorogation as a prorogation, recording as much, and understanding themselves to be prorogued until the Supreme Court’s declaration to opposite effect.  If anything was an outside force in this context it was not the Crown but the Court, which has wrongly taken over responsibility for questioning and quashing a proceeding – prorogation – in Parliament.

 

Parliament should correct the Supreme Court’s judgment

 

  1. The Supreme Court’s prorogation judgment has changed the law of the constitution without justification.  It invites further politically motivated litigation to challenge lawful actions of the Government, actions which should be subject to political controls but which may in future be determined by the political judgments and perceptions of our judges.  This is a very serious change in the constitutional law and practice of the United Kingdom, which may also destabilise the law of other Westminster jurisdictions (although their judges may firmly reject the Supreme Court’s judgment on the grounds that its reasoning is weak).  The process by which the Supreme Court has decided to make this change is obviously an unsatisfactory way to make law.  It is designed to conceal the change made, it is retrospective change, which intensifies political conflict rather than resolves it, and it fails to articulate a clear standard that is capable of guiding the behaviour of future Prime Ministers or courts.  Parliament would rightly be condemned for making law in such slapdash fashion.  The Court’s lawmaking act should not be immune from challenge or correction.  On the contrary, the constitutional duty of Parliament is to act decisively to reverse the Court’s cavalier intervention.

 

  1. Parliament should legislate to specify that prorogation is a proceeding in Parliament to which the Bill of Rights 1689 applies and to make clear that courts cannot impugn advice to prorogue or any other advice to Her Majesty relating to the Queen’s action in Parliament.  This would reverse the narrow effect of the Supreme Court’s judgment. However, there is also a need to undo the premises of the judgment, including its inflated account of parliamentary sovereignty and its understanding of parliamentary accountability as a ground for novel judicial intervention.  Parliament should enact legislation that specifies that the Supreme Court’s judgment does not form part of the law of (any part of) the United Kingdom.  The point would not be to revive the prorogation of 10 September, but to avoid future courts, including the Supreme Court, relying on the authority of the Cherry/Miller judgment.  Enacting such an Act of Parliament would help restore the political constitution by specifying that Parliament has set its face against the Supreme Court’s wayward judgment. 

 

October 2019