Giovanni Zaccaroni (DCU Brexit Institute)
Today, 24 September 2019, the UK Supreme Court released an historical and unanimous judgment on the justiciability and legitimacy of the Government decision to prorogue the Parliament (see our previous coverage on the matter here and here). This judgment has a far reaching echo and potential that is likely to impact on UK constitutional law as well as (although merely indirectly) on the procedure on the withdraw of the UK from the European Union. The judgment was handed down as a response to two different appeals. The Miller case is originated from proceedings in the High Court in England and Wales, seeking a declaration that the Prime Minister’s advice to her Majesty was unlawful. Those proceedings were heard by a Divisional Court on 5th September and their judgment was delivered on 11th September and subsequently appealed in front of the Supreme Court. The second case, coming from the Inner House of the Court of Session in Scotland, was initiated by a cross party group of 75 members of Parliament and a QC on 30 July 2019 because of their concern that Parliament might be prorogued to avoid further debate in the lead up to exit day on 31 October 2019. The Scottish court declared the prorogation unlawful and the Advocate General sought an appeal against the decision in front of the Supreme Court.
The decision of the UK Supreme Court could be partitioned in three parts. In the first part (i) the Supreme Court reviews the justiciability of the decision. In the second part (ii) the Court assesses the lawfulness of the prorogation and in third part (iii) the Court clarifies if any consequences for the proper functioning of the Parliament is stemming from the judgment.
The decision to prorogue is justiciable
The Supreme Court, before going to the heart of its reasoning, has faced a number of different questions. First, as a preliminary argument, the Supreme Court made clear the difference between a prerogative versus a statutory power. While in UK constitutional law the majority of the powers of the government are statutory (and consequently codified in the statute), many of them are prerogative powers, recognised by the common law and exercised by the Crown (Para 30). Second, the fact that a decision is political does not necessarily means that it is to be regarded not justiciable (Para 31). The justiciability, in this case, is the possibility to review a decision of the government, and most of the governmental decisions are, although political, subjected to judicial review. Third (Para 33), the mutual and exclusive relationship between the Parliament and the Government (Parliamentary accountability) does not exclude the review of the courts, and fourth (Para 34) the decision of the justiciability does not impinge on the principle of separation of powers, for the obvious reason that judicial review is applied for the purpose of ensuring that same separation of powers.
To answer the question of justiciability, in sum, the Court has to review if the decision of the Government has in any way undermined the powers that the UK constitution confers on the Parliament. In the heart of this first part the judgment, the Supreme Court reflects on the meaning of two fundamental constitutional principles that are part of the unwritten UK constitution (Para 39-40) and that are distinctive of the Parliament. The first is Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in the UK legal system (Para41). The sovereignty of Parliament would, according to the UK Supreme Court, be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased (Para 42). This would not be the case, according to the Court, of a short prorogation. However, a longer prorogation would be likely to undermine the Parliamentary Sovereignty as well as the Parliamentary accountability. The latter principle represents, undoubtedly, “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament” (Para 46). The Court, to analyse the extent of the impact of the decision of prorogation makes the following consideration (Para 48):
“The longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model. So the same question arises as in relation to Parliamentary sovereignty: what is the legal limit upon the power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions?”
Accordingly, in holding that the decision of prorogation is likely to impinge on the constitutional powers of the Parliament, the Supreme Court has held that the prorogation decision is justiciable (Para 52).
The decision to prorogue is unlawful
The decision on justiciability leads the Court in answering also on the lawfulness of the prorogation. In this case the Court recalls the centrality of the Parliament in the UK representative democracy, and asks whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account and thus violating the law. All of this turns around a fundamental Paragraph of the judgment of the Court, where the relationship between the Parliament and the Government is clearly outlined (Para 50):
“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”.
As already previously stated, this would not be the case, in the Court’s opinion, of a particularly long prorogation. In exceptional circumstances like the ones leading to the exit of the UK from the European Union (Para 57):
“Parliament, and in particular the House of Commons as the democratically elected representatives of the people, has a right to have a voice in how that change comes about is indisputable. And the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons”.
The Supreme Court however states that, under certain circumstances, a prorogation of this duration might be justified. However “It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks. Everything was focussed on the need for a new Queen’s Speech and the reasons for holding that in the week beginning the 14th October rather than the previous week. But why did that need a prorogation of five weeks?” (Para 58)
This leads the Supreme Court to maintain that the decision to prorogue the Parliament has no justification, and should be judged as unlawful. “It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful” (Para 61).
The consequences for the UK Parliament and for the legal and political debate
What are the legal consequences of this judgment on the current functioning of the British Parliament? The Supreme Court analyses also if the parliamentary activities should be resumed without further notice, or if a subsequent act or decision of the Court is needed. As it is apparent in Paragraphs from 63 to 70, the Supreme Court maintains that an unlawful prorogation should be regarded as null and of no effect. The Parliament, according to the Supreme Court, should behave as not prorogued and act accordingly.
This part of the decision has relevant consequences for the Government in charge and for the UK political and legal situation. First, the Government will be likely to face a vote of no confidence from the Parliament to show that he does not enjoy the support of the House of Commons (the Labour leader, Jeremy Corbin, has already called for the resignation of Boris Johnson in the aftermath of the judgement). Second, the Parliament has a considerable amount of time to prepare a bill to force the Government to request an extension of the Brexit deadline in case an agreement is not reached in time. Third, the Prime Minister might be able to convene a general election before the Brexit deadline.
This judgment has clarified the extent of the powers of the UK Parliament in an event of an institutional clash between the legislative and the executive. It has reminded to us, scholars and observers of parliamentary issues, the importance of the connection between the two powers and produced enough material to foster the debate on the matter for weeks, if not months. However, this is eminently an internal political and legal debate, and it should not be forgotten that if the (this or another) Government and the (this or another) Parliament will or not agree on a No-deal Brexit, on the extension of the Brexit final deadline, or even on a new referendum is an entirely different matter.