The Supreme Court's ruling on prorogation

You can find the judgment here. It's fairly short and punchy so you should read it if you're at all interested. If you want some temperate and balanced comments from me then read on. Warning: there is nothing about the Establishment below, very little relevant to the prospects for Brexit and something about James I.


1. In broad terms, the first question for the Court was whether the prorogation was justiciable, i.e whether it was open to the Court to rule on its lawfulness or not. The Government's position, which was also the view taken by the Lord Chief Justice, the Master of the Rolls and the President of the Queen's Bench division (see here) - i.e. not a stupid thing to think - was that it was not justiciable. But you can well understand the difficulties with that view. Let us take some extreme examples: imagine that Parliament were to be prorogued for years with a view to preventing an Act of Parliament being passed that would have some negative impact on the Prime Minister's personal wealth. Is there really no remedy in the Courts for such an egregious abuse of power? The High Court said "We do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples, not least because it is impossible to predict how the flexible constitutional arrangements of the United Kingdom, and Parliament itself, would react in such circumstances". Once upon a time, that would have been the conventional view and even today you might consider it the better view (see here for a learned view as to why, recommended). But, speaking as a lawyer, you never want to be in the position of telling the Court 'you do not have that power' - judges tend not to like that. So it's not a surprise that the Supreme Court (the clue is in the name - Supreme) thought that it did have the power to act, at least in theory.

2. So the Court can act. But when? The High Court said that there are "difficulties in identifying measures against which allegedly offending action may be judged". Put shortly: when we are talking about prorogation, how long is too long? The Supreme Court goes about answering this question in a superficially plausible way. The constitutional principles in play are parliamentary sovereignty and parliamentary accountability. So it follows that the test is 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." (Para 50.) Nothing wrong with that, you might think. It certainly seems to catch the idea of a rogue PM proroguing Parliament for 4 years for some ulterior purpose.

3. The difficulty for the Court's reasoning, it seems to me, comes when it applies this test to the facts of the case. So the question is this: did the Government act so as to have the "effect of frustrating or preventing, without reasonable justification, the ability of Parliament to [do its job]"? That question is answered in paragraph 56: "The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that."

There is a mismatch between question and answer. The question is about grand constitutional principles of sovereignty and accountability: it's a big question. But the answer is small: the answer is about 5 of weeks in the 8 week period between the summer recess (voted for by Parliament) and 31 October. Why do these 8 weeks matter? Why is the test not by reference to, say, the number of weeks remaining before the next election under the Fixed Terms Parliament Act?

Clearly, you might say, that is because "exit day" - i.e. Brexit day - is important. Now, one could get into lots of details about how much extra work Parliament could realistically do in the sitting days lost by prorogation, especially given that the European Union (Withdrawal) (No 2) Act 2019 (the Act which, at the risk of inciting violence, I would remind you has been called the 'surrender act') had already been passed. (And don't even look at what Parliament has done since it came back.) But before we get to these details, there is a more fundamental question. How did a Court of law come to decide that "exit day" was big and important? Is that a question for the Courts? How did the Court come to decide that the UK is in an "extraordinary situation"? How extraordinary is it on a scale of 1-10? How is it legally extraordinary?

Let's step back a bit. The only reason that anyone other than constitutional law geeks is at all interested in this case is because of Brexit. The Supreme Court starts its judgment by stating "It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union". But the only political or parliamentary events of any importance in the judgment are to do with Brexit. The Court has not decided "when and on what terms" the UK is to leave the EU - but it has got into the business of deciding how those decisions are to be made.

Now I am not disputing that Brexit is important. This is perhaps an example of how easy cases make bad law: of course Brexit day is a big day. But there is a sliding scale: any number of political events are big days too. Take, for example, a General Election. Parliament is dissolved for a General Election but "dissolution is usually preceded by a short period of prorogation" (para 4)? Is the precise timing of a General Election and its effect on political machinations now a matter for the Courts to assess? If the Fixed Term Parliament Act were repealed, why would the Courts not weigh in on the date of a General Election?

Or what about some other controversial Act that is to come into force on a particular day? (Insert Act of your choice: nationalising independent schools; re-introducing bear-baiting; etc.) Parliament could, if not prorogued, pass another Act to repeal the first Act. Is the Government allowed to prorogue? Does it depend on precisely how controversial the first Act is, or precisely how important it is, or precisely how likely Parliament is to repeal it? I hope you see the concern here: any prorogation prevents Parliament for acting for X days. The Court then compares that X against some number Y that is the days left until the 'big day'; so how do Courts get to choose their 'big days'? X is X, but why is Y Y?

I feel the Court should have stopped with making the statement that it can review prorogations in extreme cases. Then it should have said that it would need far more evidence that Parliament was frustrated or prevented from carrying out its functions, that this was just a 3 week prorogation and not so obviously an abuse of power of the kind as to justify the extraordinary remedy of an intervention by the Court. That would have been a victory for everyone (not least for the Court itself). But 'twas not to be.

4. The question that the Court will ask itself in the next such case is whether "the prorogation has the effect of frustrating or preventing, without reasonable justification, [etc]" (emphasis added). What counts as a reasonable justification? Is the desire of the Her Majesty's Government to get a free hand in negotiations with foreign powers without interference from an obstructive Parliament a reasonable justification? I don't think it was argued that way. But what if it were argued that way next time? After all, Parliament has not voted that it has no confidence in the Government. Isn't it implicit in such confidence (or lack of no-confidence) that Parliament trusts the Government to carry out the business of the executive, including its negotiations with foreign powers?

5. This is what paragraph 57 states: "A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019. Whether or not this is a good thing is not for this or any other court to judge. The people have decided that." Has the Supreme Court now decided, 11-0 and with no possibility of reversal, that "the people" (whoever they are) have decided that the UK is leaving the EU? Again, I hope you see the problem. Once the Courts get sucked into questions of this kind, they will end up making findings of this kind. All those people who say that we should respect Court judgments - do they agree with the Supreme Court that the "people have decided"? Do they agree that the only question left to Parliament is when and on what terms the UK is to leave?

6. Finally, and I am not the first to observe this, note that the overall effect achieved by those people who are using every means to keep the UK more closely aligned with the EU is to make our law and politics more similar to that of the US. We do not have a Constitutional Court of the kind that some of our European friends have. Instead we have something called the "Supreme Court", whose sources of law and forms of reasoning are recognisable to those familiar with the other, older and more famous Supreme Court across the Atlantic. Let me give you one vivid example: at paragraph 32 of the judgment, our own Supreme Court refers to the "Case of Proclamations (1611) 12 Co Rep 74". If you were to read the statement of Scalia J, in which Thomas J concurred, in the US Supreme Court case of Whitman v United States (2014), you would find this: "When King James I tried to create new crimes by royal command, the judges responded that “the King cannot create any offence by his prohibition or proclamation, which was not an offence before.” Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611)." This is not the only occasion on which the US Supreme Court has referred to this case in recent years. But I have not noticed the European Court of Justice taking much interest in James I's litigation.