Brexit Institute News

‘We, the Court’ or ‘We, the people?’

Massimo Fichera (University of Helsinki)

N.B. This article is part of a wider and broader debate over the consequences on Brexit of the landmark UK Supreme Court prorogation judgment. The discussion hosted by the Brexit Institute Blog about the judgment can be found here.

On 24 September 2019, the UK Supreme Court delivered a landmark ruling on the (confirmed) justiciability and (denied) legitimacy of the Government’s decision to prorogue the Parliament. The decision touched upon many well-known classics of both UK and Western liberal democracy, including the scope and definition of parliamentary sovereignty, the rule of law and the relationship between Parliament and the executive. Several scholars have already intervened in the debate, both on this blog (see e.g. S. Usherwood, A. Greene, G. Zaccaroni) and on other platforms.

The ruling

Among the most notable conclusions by the Court, one could point out that the Court, in a delicate balance between law and politics, clarified that the ruling does not concern the lawfulness of the exercise of the prorogation power, but the issue of the scope and limits of such power (par. 52). The Court found prorogation to be an ultra vires activity, or, more precisely, it stated that there is no sufficient power to prorogue Parliament in the first place when doing so would interfere with fundamental constitutional principles without a reasonable justification (par. 50) and, in this specific case, Government was simply unable to justify its action.  Finally, the Court conferred upon its ruling ex tunc effect by relying upon a step-by-step reasoning. In other words, just as the Prime Minister’s advice was unlawful, so was the Order in Council. As a result, the prorogation was unlawful, null and of no effect, i.e. tamquam non esset: ”it was as if the Commissioners had walked into Parliament with a blank piece of paper” (par. 69).

The debate

As noted by earlier commentators, once again we can identify a neat opposition between the ”Whitehall view” and the ”Westminster view” , according to whether the Crown and the executive or Parliament is placed at the center of the system. Just as the former may find it problematic to reconcile its emphasis on popular sources of legitimacy with its Crown-oriented understanding of the UK Constitution, so the latter must resolve the discrepancy between the “will of the people” as expressed by the 2016 referendum and the “will of the Parliament”. To be sure, neither “will” is easy to fathom, despite all the interpretive efforts made by several political leaders.  However, the debate on the ruling of the Supreme Court may also be seen as yet another contest between political and legal constitutionalism. Critics unsurprisingly either denounce the political character of the judgement and argue that it was not in the Court’s power to convert conventions about prorogation into justiciable legal rules, or claim that the Supreme has taken the Constitution away from the people and misunderstood parliamentary sovereignty (see e.g. here and here). Supporters, equally unsurprisingly, either refresh foundationalism or in any case extol the transformation of the Supreme Court into a proper Constitutional Court, acting as guardian of the UK Constitution – especially as regards fundamental tenets such as the rule of law, parliamentary sovereignty and the separation of powers (see e.g. here, here, here and here). Indeed, upon further reflection, there are reasons to believe that recent events – starting from the adoption of the Human Rights Act (1998) and the creation of the UK Supreme Court (2009) indicate a shift of the UK Constitution towards continental models – although this transformation is still fluid and contested.

Leaving aside the question of the interpretation of Article IX of the Bill of Rights of 1688 and the extent to which prorogation amounts to “proceeding in Parliament”, if we look at the debate surrounding the judgement more closely, we may find some inspiration for the more general debate about populism, the rule of law and the role of counter-majoritarian institutions. In fact, aside from the well-known dichotomy between legal and political constitutionalism, I would distinguish at least two other forms of constitutionalism: identitarian and democratic/participatory.

Just like political constitutionalism, identitarian constitutionalism believes that there are no questions that can be legitimately excluded from political debate. However, it does not contend that there are fundamental disagreements at the heart of societies. All questions and issues are simply answered in identitarian terms and, consequently, courts are only able to address them appropriately as long as their rulings reflect or are compatible with the executive agenda, which is itself an expression of the “will of the people”. Trust and identity are essential components of this relationship of immediacy between people and Government. By way of contrast, participatory constitutionalism does not believe in final answers. Rather, while not dismissing completely the foundational nature of a Constitution, it supports the idea of Constitution as an open-ended, contested process. Emphasis is thus placed both on the autonomy of Parliaments and on a more direct participation of citizens in the democratic process of decision-making. Now, the controversy surrounding Brexit signals that these two other forms of constitutionalism are becoming more prominent also in the UK. The role of courts (including supreme/constitutional courts) should certainly be reviewed and redefined in this new context. Given the difficulty of contemporary legislatures to generate consensus when dealing with controversial issues, and the inability of majoritarian politics to meet complex social demands, the possibility to have these issues addressed in a more reflective manner should be welcomed. In other words, the increased role of courts is sometimes a reaction to the crisis of legitimacy and representativeness of parliaments and the simultaneous strengthening of the executive. At the same time, once we recognise that courts inevitably play a political role, we should also be prepared to admit that they, too, may become a vehicle for populist agendas. We should also not forget that courts must be responsive to civil society and other institutions, rather than closed and self-centred. Be it as it may, the fact that they sometimes turn into a sort of “majoritarian” institutions, thus reflecting major societal needs, should be considered more carefully as a starting point for further reflection in the aftermath of the Cherry/Miller No.2 judgement.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog

Massimo Fichera is Academy of Finland Research Fellow and Adjunct Professor of EU law at the School of Law, University of Helsinki

Photo credit: UK Parliament via a BY-NC-ND licence