The current dramatic interaction between the Government, Parliament and the courts means that we are witnessing one of those formative moments in the evolution of our constitution of which there have been many over the course of centuries. The attention that is paid to the checks and balances of the US written constitution has tended to overshadow the fact that a much more interesting confusion and separation of powers has been at the heart of the dynamic development of our unwritten constitution.

In the present struggle, the sovereignty of Parliament has been invoked.  Monarchical ambitions have been detected in the executive. The spectre of the politicising of the courts has been raised.  It may be helpful to re-state as calmly as possible the underlying and enduring structure.  You do not have to be Edmund Burke to believe that it is a remarkable achievement of subliminal collective intelligence over the course of fifteen centuries.

The sovereignty of Parliament merely expresses the legal fact that Acts of Parliament override the common-law, and hence are in that sense supreme, subject now to the effect of EU law within UK law. The powers of Parliament are themselves legal powers which the courts respect and assert and protect.  The Bill of Rights of 1689 says that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place outside of parliament’.

There is no particular magic in the term ‘prerogative power’. The few remaining prerogative powers are common-law powers in the sense that they are not conferred by statute, and in the sense that they are powers whose existence and conditions of application are matters to be determined by the courts. They are also common-law powers in the sense that they may be abolished, abridged, supplemented or temporarily superseded by statute.

The whole of our sophisticated system of public law consists in the review by the courts of decisions made by all levels of the executive branch of government in the exercise of legal powers. Of course, the decisions will often have been made on political grounds, but it is the job of the courts to determine the limits of the powers, given that their exercise abridges the legal rights and freedoms of particular citizens, and in some cases the legal rights and freedoms of all citizens.

All of these things are simply manifestations of the principle of the Rule of Law.  It took centuries of struggle to establish the Rule of Law as the ultimate principle of our constitution, so that it could become an ultimate principle of liberal democracies across the world.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

(Suggested citation: P. Allott, ‘On the Merits of Constitutional Struggle’, U.K. Const. L. Blog (14th Sept. 2019) (available at https://ukconstitutionallaw.org/)

A central theme of the High Court judgment in Miller v Prime Minister  is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court to assess by any measurable standard how much time is required “to hold the Government to account”’ (at [57]). Is that accurate?

Arguably the proper approach to this question was set out in R (UNISON) v Lord Chancellor. There it was held that an Employment Tribunal fees order was ultra vires, taking into account the effect of fees in deterring claimants from accessing a public system of justice, a fact which itself affected the rule of law. According to Lord Reed, ‘the degree of intrusion [on access to justice] must not be greater than is justified by the objectives which the measure is intended to serve’ (at [88]). This principle was one of common law, but also ‘an analogy’ to the principle of proportionality. International law, in this case the case law of the European Court of Human Rights, was ‘revelant to the development of the common law’ (at [89]).

This suggests that the proper ‘legal measure’ flows from the government’s own objectives. So, in the case of prorogation of Parliament, does the prorogation intrude no more upon a constitutional principle than is justified by the objectives which it is intended to serve? Here it is plain that the relevant constitutional principle is Parliamentary sovereignty, ‘a fundamental principle of the UK constitution’ (R (Miller) v Secretary of State for Exiting the EU, [43]). It also affects the right to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’ found in the International Covenant on Civil and Political Rights 1966 article 25(a).

It follows that the established approach since UNISON is probably to ask:

• What is the government’s aim in proroguing Parliament? If that aim is legitimate, then ask…
• Is the government’s progrogation appropriate to achieve the aim?
• Does the government’s prorogation go further than is necessary to achieve the aim?
• Does the government’s prorogation strike a reasonable balance between its interests and society’s as a whole?

At each of these steps there is room for debate. It is first debated whether the government’s aim is in fact to prepare for the Queen’s speech, or whether its true motive is to frustrate the attempt of Parliament to block the government’s option of a ‘no deal’ Brexit. As the Queen in Parliament is ‘the great corporation or body politic of the kingdom’ (William Blackstone, Commentaries on the Laws of England (1765) a useful analogy in another kind of corporate law is found in Howard Smith Ltd v Ampol Petroleum Ltd. This held that company directors issued shares for the improper purpose of blocking a takeover bid, despite their claim that they aimed to finance the completion of tankers (approved in Eclairs Group Ltd v JKX Oil & Gas plc, [23] per Lord Sumption, the ‘leading modern case’). What is the true aim is an evidential question. Cherry v Advocate General, [53]-[58] has held that the true aim of prorogation is to ‘stymie’ Parliamentary scrutiny.

If, however, it is accepted that there is a legitimate aim, the court should then ask whether action taken is appropriate, necessary and reasonable. Here the clinching factor is likely to be ‘necessity’. Despite the High Court’s opinion that there is no ‘legal measure’, it would appear that the measure is precisely the government’s stated aim. It would seem not to be beyond the capacity of the court to determine whether time to prorogue Parliament is excessive or not, taking into account past practice. In this, it is up to the government to show that the ‘degree of intrusion [is] not be greater than is justified by the objectives which the measure is intended to serve’.

This is all the more important because the Bill of Rights 1689 article 1 states that ‘the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.’ It is an inherent part of logic, including in law, that reasoning ‘from the lesser to the greater’ (a minori ad maius) what is illegal in a minor way, must also be illegal when done in a major way. If a government purports not merely to suspend laws or their execution, but suspends the entire lawmaking body of Parliament, there must be good justifications. In this way, it is not clear why prorogation of Parliament should be considered a matter of ‘politics’ as ostensibly distinct from law.

Ewan McGaughey, Senior Lecturer, School of Law, King’s College, London

(Suggested citation: E. McGaughey, ‘Is There a “Legal Measure” to Judge Parliament’s Prorogration?’, U.K. Const. L. Blog (14th Sept. 2019) (available at https://ukconstitutionallaw.org/))

Constitutional lawyers often point to key cases as milestones in public law. Recently, the Supreme Court decision in Privacy International joined the ranks of leading public law cases, adding to the cases discussing ouster clauses and the extent to which courts can review decisions of inferior courts and tribunals in Anisminic and Cart. As Privacy International also demonstrated, milestone cases often take on a life of their own. The judges in Anisminic may be surprised at how the case was later interpreted. But this is how the common law works. Anisminic was interpreted in a series of later cases to demonstrate that all legal errors are jurisdictional errors. This then became part of the common law.

CCSU (or the GCHQ case) has long been regarded as a milestone case regarding judicial control over prerogative powers. In R (Miller) v Prime Minister, (Miller 2) the High Court interpreted CCSU as marking a sea change in how we review prerogative powers. Courts no longer look at the source of a power but its subject matter when determining whether it can be subject to judicial review. Post CCSU it was no longer the case that prerogative powers could not be reviewed because their source was the common law as opposed to legislation. Rather, courts look to see if the subject matter of that prerogative power is justiciable. Is it suited to judicial control by the court?

This blog post will make two arguments. First, it will argue that the High Court’s reading of CCSU in Miller does not provide the full story. As such, it fails to provide an accurate account of when prerogative powers are justiciable. Second, it will argue that, given the current constitutional circumstances, there are strong constitutional reasons for the Supreme Court to build on CCSU and recent case law developments which recognise the principle of legality as a constitutional principle and not just a principle of interpretation. As such, it, or a sister principle, can and should also apply to prerogative powers. The seeds of this form of control were already planted in R (Miller) v Secretary of State for Exiting the European Union (Miller 1), which confirmed that the common law restricts the scope of broad prerogative powers in a similar manner to the principle of legality.

Justiciability

To read CCSU as merely exchanging source for subject matter does not tell the full story. There are many nuances to the judicial approach to controls over prerogative powers. First, it fails to distinguish between controls over whether a purported prerogative power exists, and judicial review over the exercise of a prerogative power. As Miller 1 recognises, controls over whether a prerogative power exists are not confined to an historical analysis. The common law and legislation restrict the scope of prerogative powers. In Miller 1, the Case of Proclamations, combined with the Bill of Rights 1688/9 and the Claim of Rights 1689 in Scotland, provided authority that prerogative powers could not be used to change domestic law. The Supreme Court drew on Laker Airways and Fire Brigades Union to conclude that prerogative powers cannot be used to frustrate the will of Parliament as expressed in legislation, either by frustrating specific statutory provisions or by rendering it devoid of purpose. Whilst these look like cases concerned with the exercise of prerogative powers – because we refer to them as restricting the use of these powers – they are better understood as controls over the existence or scope of prerogative powers. The Supreme Court in Miller 1 did not ask whether the prerogative power of withdrawing from a Treaty was justiciable, despite the clear argument that it was a non-justiciable matter of high policy –  the merits of Treaty withdrawal are a matter of politics, not law. Rather, the Supreme Court considered the matter differently. It limited the scope of the prerogative power of entering into and withdrawing from Treaties so as not to include a specific power to unilaterally withdraw from a Treaty where to do so would modify domestic law or frustrate legislation.

Second, as the High Court recognises in Miller 2, the law has moved on from CCSU. Lord Roskill’s list of non-justiciable prerogative powers has modified over time, with the court recognising that prerogative powers that previously looked to be too political could be subject to legal controls. Lord Roskill’s judgment is not the only judgment in CCSU. The other judgments provide further justifications for the ability of the courts to review prerogative powers. There is a clear role of the court to review those prerogative powers that harm individual rights. We can see this not just as a concern for protecting human rights, but also a broader concern for legitimacy. Moreover, there are suggestions in CCSU and later cases that prerogative powers are justiciable when there are legal standards by which their use can be assessed – as accepted by Lord Drummond Young in Cherry v The Advocate General (at [102]).

This is not, as the High Court in Miller 2 suggested,  to stand justiciability on its head, forgetting that ‘the question of justiciability comes first, both as a matter of logic and of law’. (at [41]). Justiciability can still come first. As Lord Pannick argued, greater caution is exercised over those prerogative powers that are more political. In other words, subject matter can be used as a prima facie indication of justiciability. If a prerogative power is an exercise of high policy, for example, it would suggest either that it can be reviewed on fewer grounds of judicial review, or that the court scrutinises the use of this prerogative in a less stringent manner. Subject matter is still important, even if courts focus on an examination of possible legal grounds of review to determine justiciability. More ‘political’ prerogative powers could, for example, only be unlawful if they breached the rule of law, or failed to follow clear principles of natural justice, rather than being struck down as irrational. Moreover, such ‘political’ prerogative powers might only be unlawful where the use of the prerogative was so absurd that there were no possible rational justification for its exercise.

All of these elements were arguably accepted by the Inner House in Cherry. Lord Carloway concluded that control over the prorogative power of prorogation was justiciable when the prerogative undermines or attempts to undermine a ‘central pillar’ of the constitution – ‘the central pillar of the good governance principle’ (at [50]). Lord Brodie accepted that, whilst it was not for the court to determine the length of prorogation, nevertheless the control of the prerogative was justiciable as the use of the prorogative in this case was ‘so blatantly designed to frustrate the will of Parliament at a critical juncture in the history of the UK’ (at [91]).

Furthermore, as the High Court itself accepts in Miller 2, when it comes to determining justiciability ‘the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action’ (at [47]). This too appears to merge subject matter and the nature of the challenge when determining justiciability.

Principle of legality

I argued above that Miller 1 concerned the scope of prerogative powers. Whilst the Government enjoyed a broad prerogative power to enter into and withdraw from Treaties, this did not include a specific power to withdraw from the EU Treaties because the consequences of doing so would mean that the prerogative would frustrate legislation and modify domestic law, removing individual rights. When expressed in this manner, the reading down of a broad prerogative power is parallel to the way in which courts use the principle of legality to read down broad statutory provisions to protect fundamental rights. In UNISON, for example, the statutory power granted to the Lord Chancellor to set court fees did not extend to include a power to set fees for employment tribunals that undermined access to justice by making it practically impossible for many who used employment tribunals to afford the fees. If, as CCSU suggests, there is a move from source to subject matter, then it is also possible to argue that a principle similar to the principle of legality applies to prerogative powers. Both are executive powers that should be subject to analogous judicial controls, despite having a different source.

The obvious objection to the above argument is that the principle of legality is a principle of statutory interpretation. Yet, when dealing with most prerogative powers – and particularly the prerogative power of prorogation – there are no statutes to interpret. So how can it apply to prerogative powers? There are two main arguments in response to this objection.

First, the principle of legality is not just a principle of statutory interpretation. It is also a constitutional principle establishing the limits of executive power. As Lord Hoffmann recognises in Simms, its application means that the UK courts, whilst accepting parliamentary sovereignty ‘apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document’ (at [131]. See also the argument of Fordham QC, at [31] of Miller 2). Moreover, later case law recognises sister principles to the principle of legality, applied to the interpretation of Henry VIII clauses in Ingenious Media and the interpretation of ouster clauses in Privacy International. In addition, if the principle of legality were just a principle of statutory interpretation, we would expect to see the courts looking for evidence that the legislature was aware of the fundamental principles of common law it was presumed not to legislate against. But this is not the case. Rather, courts determine the content of fundamental principles of the common law. When the intention of Parliament is used by the courts, it is as evidence of an express intention to limit a common law right, or to demonstrate that a fundamental right has been established through legislation and so may not be fully regarded as a fundamental common law right.

The courts adopt a contextual approach to the principle of legality, influenced by the importance of the fundamental common law right or constitutional principle at stake. In particular, the court is more likely to read down provisions of legislation which restrict individual liberty or which undermine a structural aspect of the constitution designed to protect rights, such as access to the courts. Moreover, courts are more likely to read down legislative provisions when determining the scope of powers granted to executive bodies. The principle of legality’s status as a constitutional principle is reinforced by the way in which the courts will allow express words in legislation to empower the executive to restrict fundamental common law rights, but only to the extent that this any restriction on fundamental rights is as narrow as possible, almost akin to an application of the principle of proportionality (see UNISON).

Second, CCSU demonstrates the ability of the courts to draw on fundamental common law principles to control actions of the executive. If judicial review is no longer restricted to the review of powers granted to the executive by legislation, then this means that courts must be able to assert their own controls over executive power, drawing on principles of the common law. This is true regardless of whether we see this as an inherent common law power of the courts, or because we presume the legislature has delegated this function to the courts. Whilst the wording of legislation may place limits on the extent to which the court can use the common law to restrict executive powers, it is no longer the case that only the legislature can place limits on the powers of the executive. As such, a principle akin to the principle of legality could and should apply to prerogative powers. Indeed, this is tacitly recognised by Lord Carloway in Cherry, where he argues that the control of the court over the use of the prerogative power to stymie the will of Parliament ‘follows from the application of the common law, informed by applying “the principles of democracy and the rule of law”’ (at [51]), citing Moohan v Lord Advocate.

In Miller 1 the court drew on earlier case law to explain how the common law restricts the scope of broad prerogative powers. The time is right for the Supreme Court to build on these earlier cases, recognising a further sister principle to the principle of legality, restricting the scope of all prerogative powers so that they do not extend to undermining fundamental constitutional principles – including democracy and the separation of powers. To do so is not to interfere with a political decision as to the timing or length of prorogation. Rather, it is to accept that a broad prerogative power does not extend to include the use of that prerogative to undermine fundamental principles of the constitution. Political choices are bound by legal limits. The courts are both constitutionally and institutionally suited to determine the limits of the law.

I would like to thank Paul Craig and Hayley J. Hooper for their excellent comments on earlier drafts.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘Prorogation, Politics and the Principle of Legality’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is the representatives of the people (and the people themselves in an election) who ought to have, and to exercise, responsibility for holding the Prime Minister to account for misconduct in proroguing. If the judges were to accept the novel claims in Petition of Cherry and other/s [2019] CSIH __ and R (Miller) v Prime Minister No 2 [2019] EWHC 2381 (QB), and forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility.

And the present political crisis is no time to be changing the constitution. It would be better for the courts to adhere, in spite of the worst of political machinations, to a structure that is more sustainable and robust than people tend to remember. This is no time to panic, and judicialize the operations of Parliament.

Are these claims really novel?

The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law. And in the days before the Fixed Term Parliaments Act, it was never held to be unlawful for the government to stymie Parliament by a dissolution. But the claimants in the Cherry case and Miller No 2 (‘the claims’) rely on the most orthodox propositions of administrative and constitutional law (‘ordinary public law principles’, as the claimants put it in Miller No 2 [23]): that executive power cannot lawfully be used for improper purposes, and that Parliament is sovereign. The two arguments connect, of course: it is because of the sovereignty of Parliament, according to the claimants, that it is improper –and therefore unlawful– to stymie Parliament.

There is a strong allure in these arguments for judicial action against abuse of power. But I will argue that they only misapply the principles that demand judicial interference in the great improper purposes cases such as R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 and Padfield v Minister of Agriculture [1968] AC 997. To Professor Paul Craig and to others, it seems deeply unattractive to say that an abuse of power should not be subject to judicial control. But it is no accident that there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament.

The Inner House in Cherry held that the judges must prevent the Prime Minister from using prorogation to stymie Parliament. The English Divisional Court (like Lord Doherty in the Outer House of the Court of Session) held that the judges cannot do so: ‘that is not territory in which a court can enter with judicial review.’ [55] Suppose, as Nicola Sturgeon put it, that ‘The prime minister’s behaviour has been outrageous and reckless, and has shown a complete disregard for constitutional rules and norms.’ Or that, as Lord Brodie put it in the Inner House in Cherry, it was ‘…an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. Then what the Prime Minister has done is worse than many unlawful uses of executive power. You see the attraction –we can all feel it– in thinking that the judges must be prepared to step in.

But ‘executive power’ is not a thing that is subject to uniform judicial supervision. Lord Doherty at first instance in the Outer House in Cherry got the most important point on the table when he said that the judges’ role depends on the type of executive power: ‘The court’s role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise’ [13]. That dependency is at the heart of this case.

In Miller No 2, the claimant’s counsel, Lord Pannick, offered an account of the dependency: the courts have reason to be more or less cautious (and sometimes very cautious) in concluding that a power has been exercised for improper purposes [27], [37]. The Divisional Court held, instead, that ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts’ [68] (cf ‘the decision of the Prime Minister was not justiciable.’ [1]). And Lord Doherty ruled in the Outer House that ‘the claim is non-justiciable’ [13].

Justiciability and non-justiciability in administrative law are, primarily, properties of issues or questions, rather than of exercises of power, or of claims. In GCHQ [1985] AC 374, for example, the judges decided that they could not answer the question of whether there would be a serious risk to national security if the Prime Minister consulted the applicant Union. The Union lost because in order to decide in the Union’s favour, the judges would have needed to answer that non-justiciable question.

The ‘non-justiciability’ here is a different matter: it is a property of the decision to prorogue, according to the Divisional Court in Miller No 2 [1], [68]. Lord Doherty treated it as a property of the claim [26], [27]. It may be the case that non-justiciable political questions would need to be answered in order for the judges to say whether the Prime Minister’s purposes were proper. The judges of the Divisional Court in Miller No 2 certainly considered that such questions arose in the case; this would have been enough to justify their decision to reject the claim (as in GCHQ). But they held something stronger: that ‘The question of justiciability comes first, both as a matter of logic and of law.’ That is, it seems that they would not be prepared to pass judgment on the propriety of the Prime Minister’s purposes, regardless of the facts. Imagine that an alleged improper purpose involved no political question that judges cannot appropriately answer. There would still be no judicial review, on the Divisional Court’s approach. It is not just that the judges should be very cautious; they should not even ask, for the purpose of a challenge to the lawfulness of a prorogation, whether the Prime Minister’s purposes were proper.

That result –which seems intolerable to some lawyers, and to the claimants– is, with respect, exactly right. In the great cases on improper purposes in administrative law, Lord Pannick’s approach is a sound approach to the dependency of judicial review on the nature of the case: the judges should be more or less cautious, in answering questions that are less or more ill-suited to judicial decision. But in those cases, the power in question (to initiate a statutory inquiry; to spend overseas development money…) is not the Prime Minister’s power to regulate a Parliament that is responsible for his tenure in office, to which he is accountable, and on which he is utterly dependent. The dependency of the judicial role on the nature of the power is more radical than Lord Pannick’s argument suggests. It is a matter of constitutional principle that the House of Commons should have responsibility for responding to wrongdoing in the exercise of the Prime Minister’s power over its own proceedings.

The Divisional Court’s term, ‘non-justiciable’, needs disambiguating; lawyers use it both when it is more or less unsatisfactory for judges to base a decision on their own answer to some question, and also when it is unsatisfactory for judges to hear a claim, or to interfere with a decision. The Divisional Court’s reasoning in Miller No 2 is justified; the justification could alternatively be expressed accurately without using the word ‘justiciability’. It could be expressed by saying that the common law does not regulate the scheduling of parliament proceedings. As a result, the case that the prorogation was unlawful lacks its very first premise.

It would be an inauthentic contribution to democratic politics, if judges gave the Prime Minister their seal of approval for his truthfulness and for his purposes in a prorogation. Likewise, if they inflicted on the government their adverse take on this political move. It is not merely that the judges would have difficulty answering the questions at stake; it would be inauthentic because while any of us can pass judgment on a Prime Minister’s truthfulness and his purposes, the judges would be giving the binding authority of their court to their own answers to these questions of parliamentary politics. This form of ‘non-justiciability’ –as the Divisional Court called it– arises because the judges’ supervision would diminish Parliament’s responsibility for its own operation.

Extreme prorogation

Here is one potentially good argument for judicial interference: that it might be necessary in the interests of constitutional governance, where the Prime Minister is able to prevent the House of Commons from exercising the very form of control that, I have said, it ought to exercise. The argument is, as Jake Rowbottom has put it, that:

‘the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.’

That is not this case. Parliament was not stymied by the prorogation; it was energised. It legislated in three days to require the Prime Minister –against his headline policy– to seek an Art 50 extension. The House of Commons could have thrown his government out. It could have done so after the legislation was passed. The House could have agreed to either of the Prime Minister’s proposals for an early general election. There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct.

Now what if we imagine the worst: a prorogation sine die (perhaps to avoid a vote of no confidence). Do we need the courts to protect us from that? The government would run into the buffers of its own need, in the 21^st century, for frequent parliamentary sessions, and eventually the Fixed Term Parliaments Act would require a general election. But it would never come to that; ordinary day-to-day politics prevents prorogation sine die. No Prime Minister could hold together a party while doing that. There isn’t actually a need for judges to be on standby to fill in for a House of Commons that is prevented from discharging its own responsibility.

Conclusion

The House of Commons does not need the courts to take over its responsibility for holding the Prime Minister to account for scheduling sessions. The courts and the politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of Parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of Parliament’s proceedings.

In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford and Fellow in Law, Balliol College

(Suggested citation: T. Endicott, ‘Don’t Panic’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

In R (Miller) and Others v The Prime Minister (hereinafter Miller No.2), the High Court of England and Wales found that the decision of the Prime Minister to advise the Queen to prorogue parliament was non-justiciable. In doing so, the judgment reveals the propensity of the judiciary to be much more protective of its own empire than that of the legislature. Ultimately, however, it is an approach that undermines both due to the creation of a legal black hole.

Legal holes and Miller No.2

Legal black holes are zones formally created by law within which, no recourse to the law can be made. A legal black hole is thus created when there is no legal control on the body exercising the power in question, leaving the decision-maker free to exercise their absolute discretion. At best, all the judiciary can ask is whether the legal black hole was validly created. There is therefore a close link between legal black holes and non-justiciable or political questions. Legal black holes should be distinguished from what David Dyzenhaus refers to as legal grey holes—questions of law which courts state that they do have the capacity to review; however, the review exercised is so light touch that it is essentially meaningless. Dyzenhaus contends that legal grey holes are more dangerous than legal black holes as the former cloak the decision with a thin veil of legality, thus legitimising them in a way that a finding of non-justiciability does not.

In Miller No. 2 the approach of the Court is to essentially create a legal black hole regarding the exercise of the prerogative power to prorogue Parliament. The Court found (at [51]) that:

The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.

Ostensibly, this appears to be an exercise in judicial restraint albeit one that creates a legal black hole. What Miller No. 2 shows, however, is how a finding of non-justiciability can, nevertheless, legitimise a decision. Even such a thin conception of the rule of law such as that deployed to create a legal black hole can add a degree of legitimacy to a decision. This thin veil of legitimacy, however, is further compounded when the court accompanies its finding of non-justiciability with an implicit endorsement of the reasons given by the decision-maker. This is essentially what the Court does in Miller No. 2 (at [51]):

The evidence shows that a number of considerations were taken into account. We have summarised them extensively already. They included the need to prepare the Government’s legislative programme for the Queen’s Speech, that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations, that a number of days falling within the period of prorogation would ordinarily be recess for party conferences, and that the current parliamentary session had been longer than for the previous 40 years…

Miller No. 2 is thus an example of the negative effects of a legal black hole and a legal grey hole. If the risks of a legal black hole are to be mitigated, their inherent illegitimacy must be acknowledged. Courts must therefore refuse to look at the decision-maker’s reasoning out of risk of endorsing this reasoning— explicitly or otherwise. For this reason, the courts were correct (at [41]) to reject Lord Pannick’s submission that the court should:

…explore the facts first, for the purpose of deciding whether there has been a public law error, and then turn to justiciability; and then in the limited sense of deciding whether “caution” should forestall intervention.

Lord Pannick’s suggestion would have the benefit of gaining some sort of judicial disapproval in a case which was ultimately lost on the justiciability question; however, the opposite occurs in the instant case where no error has been identified.

The consequences of legal black holes

It may be that the Court implicitly acknowledged the Government’s case regarding the purpose of prorogation in order to reassure itself of the ramifications of its judgment. This too can be seen by the Court (at [66]) downplaying hypothetical arguments pertaining to the consequences of a finding of non-justiciability:

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.

The difficulty with this argument, however, is that the doctrine of non-justiciability necessitates extreme hypotheticals due to its ‘all or nothing’ quality. If a five week prorogation is non-justiciable, then so too is a five month prorogation or longer. The question is non-justiciable in all instances, not just on the facts presented before the court. Indeed, it is these very extreme hypotheticals that assist in distinguishing a legal black hole from the even more sinister zone beyond law, the latter of which resemble Carl Schmitt’s contention that sovereign power exists prior to the legal order and thus cannot be constrained by law. While most legal black holes do not give rise to this risk, those that have the potential to usurp fundamental constitutional norms do.

At the time of writing, the Scottish Court of Session’s judgment in Cherry on this same issue was not available; however, the court summary does suggest that it took this question of the constitutional ramifications of prorogation much more seriously:

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law.

In contrast, the Court in Miller No.2 took a narrow reading of the principle of parliamentary sovereignty, rejecting (at [63]) ‘Lord Pannick’s formulation of a wider legally enforceable concept of Parliamentary Sovereignty, distilled to its essence as an ability to conduct its business unimpeded’ on the basis that it runs into ‘difficulties in identifying measures against which allegedly offending action may be judged.’ Equally, however, similar criticisms could be levied at the concept of the rule of law developed and applied in seminal cases such as Anisminic, Evans, and more recently, Privacy International.

Conclusions

It would appear therefore that while courts have jealously guarded their own jurisdiction, should the Supreme Court follow the judgment of the High Court, they would not have afforded Parliament the same courtesy they afford themselves. Thus while a finding of non-justiciability may ostensibly appear the court to be exercising judicial restraint, it is done so in a highly problematic manner, opening up the aforementioned judgments to further accusations of judicial activism.

Ultimately, when there is a clash between the legislature and the executive, it is inevitable that the judiciary gets asked to adjudicate. I would contend that abandonment of non-justiciability in favour of a spectrum of deference is a more nuanced and flexible approach. Such an approach would avoid the aforementioned risks of a legal black hole and take proper account of high political issues that courts may not be suitable for a court to second-guess. It remains to be seen what approach the Supreme Court takes.

Alan Greene is a Senior Lecturer in public law and human rights at Birmingham Law School.

(Suggested citation: A. Greene, ‘Miller 2, Non-justiciability and the Danger of Legal Black Holes’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

Introduction: extension and the Rule of Law

On 9 September, the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Extension Act’) received Royal Assent.  The Benn-Burt Extension Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period under Article 50(3) TEU.  However, the Prime Minister has repeatedly stated that he will not request such an extension, ostensibly in clear conflict with the statutory obligations in the Act.

This reticence has prompted criticism over the Government’s commitment to the Rule of Law, and has given rise to speculation as to whether the obligations of the Benn-Burt Extension Act can be circumvented legally.  The Foreign Secretary has even stated that the Government will ‘test the law to the limit’.  Boris Johnson faces a trilemma: (1) avoiding an extension to Article 50; (2) remaining Prime Minister; and (3) not violating the Rule of Law.

This post argues that no legal interpretation of the Benn-Burt Extension Act can reconcile the Government’s position with the obligations under the Act. The Act places control over avoiding a further extension in the hands of the House of Commons.  This can be realised through the House of Commons approving a Withdrawal Agreement under section 1(1), or approving withdrawal without an agreement under section 1(2) before 19 October. This post highlights a third, less obvious scenario whereby the UK could find itself back on the road to a ‘no deal’ exit on 31 October: if the House of Commons decides, under section 3(3) of the Act, to reject an extension proposal from the European Council to a date other than 31 January 2020.  It is therefore crucial that both the European Council and the House of Commons understand the implications of section 3 for a no deal Brexit in making their respective decisions on extension.

The third scenario and operation of the Act

This third option depends on the following scenario: the conditions under section 1(1) and 1(2) have not been met; therefore the Prime Minister is obliged under section 1(4) to send the extension request letter in the form mandated by Schedule 1 of the Act.  This is predicated on the position that, before 19 October, the Prime Minister may not rely upon any executive power outside the scope of section 1(4) in order to request an extension that does not comply with the form detailed in Schedule 1. The next step of the scenario would be for the European Council to propose an extension to a date other than 31 January 2020 (the date specified in section 1(4)) in response to this request.

This would trigger the conditions in section 3(2) and section 3(3) of the Benn-Burt Extension Act.  Section 3(1) holds that if the European Council were to grant an extension to 31 January, the Prime Minister must immediately accept it. By contrast, if another date is proposed, then section 3(2) introduces a dual temporal condition: acceptance must occur either (1) within two days, or (2) before the end of 30 October, depending on whichever is sooner. Section 3(3) then provides an exception to this condition that empowers Parliament to decide upon the new extension date: if the House of Commons were to decide not to pass a motion within the section 3(2) time-period, then the obligation for the Prime Minister to accept does not apply.

In this scenario, an executive discretion for the Prime Minister, provided for in section 3(4), becomes operative. The provision states that “[n]othing in this section shall prevent the Prime Minister from agreeing to an extension…otherwise than in accordance with this section”.  The House of Commons Library explains the effects of these words: ‘If the House of Commons “decides not to pass” a specifically worded motion approving the extension, the Prime Minister then has a free choice whether or not to agree to the extension under subsection 3(4)”.

On this reading, any pre-existing executive power to request extension for a different period, as exercised by the previous Prime Minister Theresa May on 20 March and 5 April 2019, has been limited by the provisions of section 1 and section 2 of the Benn-Burt Extension Act. This raises an important distinction between the Benn-Burt Extension Act and the first EU (Withdrawal) Act 2019 (‘Cooper-Letwin Extension Act’). Section 1(6) of the Cooper-Letwin Extension Act states that ‘nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension’ (emphasis added). The Prime Minister had already requested a second extension on 5 April 2019, before the Cooper-Letwin Extension Act received Royal Assent on 9 April. But if Theresa May had only sought the extension after the Act had come into force, she would have been able to request an extension to a date other than that passed in a House of Commons motion under section 1(2) of the Act, provided that this extension would have ended later than 22 May 2019. By contrast, the present Benn-Burt Extension Act does not permit the Prime Minister to seek any extension other than one which conforms to the terms of the Act.

The crucial point is that, within this scenario, any executive discretion for the Prime Minister is limited to the acceptance of any extension offered by the European Council. The Prime Minister would only be free to accept or reject an extension offer from the European Council upon the fulfilment of the very narrowly defined circumstances detailed above. Crucially, the House of Commons remains in control, as section 3(3) of the Benn-Burt Extension Act requires the House of Commons to reject the extension before the Prime Minister’s discretion is activated.

Conclusion: the responsibility of the European Council and the House of Commons

Significantly, the scenario outlined above depends entirely upon the European Council. Subject to the unanimous agreement of the 27 heads of state or government, the institution enjoys discretionary power under Article 50 TEU over whether to grant a request for an extension, up to what date, and subject to what conditions. The United Kingdom retains the power, under Article 50(3) TEU, to agree to these conditions, a power which in domestic law has now been regulated by the Benn-Burt Extension Act.

It is paramount, therefore, that the European Council is aware that the consequences of a decision to set an extension date other than 31 January 2020 could set in motion events that may lead to the United Kingdom withdrawing without agreement on 31 October. This would arguably even be the case if the European Council grants a ‘flextension’, with different dates dependent upon different conditions, as it did for the first extension Decision of 22 March 2019, and the second extension decision on 11 April 2019.  In turn, the House of Commons must be aware that a decision under section 3(3) not to accept a different date or dates would hand power back to the Prime Minister to reject an extension. The Act has severely restricted the road to a no-deal Brexit on 31 October, but it has not entirely blocked it off.

The author would like to thank Jack Simson-Caird, Paul Craig, and Graeme Cowie for comments upon earlier drafts of this piece.

Oliver Garner is a Brexit Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, and a Ph.D. candidate in the Law Department of the European University Institute.

(Suggested citation: O. Garner, ‘The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

This post follows on from a previous piece where I attempted to set out the general rules, and a flowchart, to create a route map in the event of a vote of no confidence. This post seeks to address the narrower question of what could happen if the Prime Minister (‘PM’) refused to send the letter to extend the Article 50 process and instead decided to announce the resignation of the Government before the deadline. This post assumes that the resignation would be by the whole Government on the grounds that collective responsibility on its central policy would apply in all the circumstances.

The deadline for sending the letter under the Benn-Burt Bill (now European Union (Withdrawal) (No. 2) Act 2019 (‘EUW2’)) is 19 October 2019 which is a Saturday.

It is a convention that prime ministers should, where possible, give sufficient notice of their resignation so that an alternative prime minister can be identified. In those circumstances, let us suppose that the PM announces to the House of Commons on its return on Monday 14 October that the Government will formally resign on the morning of Friday 18 October rather than send the letter under the Act.

The Queen must have a Government

One of the most central rules of the constitution is that the Queen must have the benefit of ministerial advice. Such an announcement by the PM would thus require that a new PM be chosen to form a new government. In my previous post I argued that the new PM would normally have to be nominated by the largest party or grouping in the House of Commons in order for the candidate to be clearly best placed to command the confidence of the Commons. It is a matter of numbers.

The rule that a new PM must come from the largest party or grouping is universally agreed if the largest party or grouping has an overall majority. My view, as argued before, is that the starting point should be the same in situations where there is no overall majority because such a rule would be clear, simple and rational. It is also arguably the best way to ensure that the Queen is never drawn into the political arena.

Others disagree, however, and argue that where there is not an overall majority for any party or grouping, then there must be negotiations between the major parties until a settlement is reached. Of course this increases the possibility that the Queen could be drawn into the situation in extremis – indeed some commentators would defend that option as a last resort. The author respectfully demurs from the latter view as incompatible with a modern democracy.

My own view remains that if, for some reason, the largest party or grouping cannot, or will not, nominate a new PM, then, if all else fails, the Commons must decide  who is best placed by a vote or votes on motions in the Commons for that purpose. Such motions could possibly be drafted along the lines of “This House believes [X] is best placed to command the confidence of the House of Commons”. Other commentators may have alternative potential solutions to suggest.

Immediate steps after announcement of imminent resignation as PM

The first point to note is that the PM, and the Government, has the absolute right to resign at any time. The Government cannot be forced to stay in office. The convention that the PM waits for a successor is important, but ultimately cannot trump the right to resign.

It is important to note that Mr Johnson could remain as the leader of the Conservative Party even after the Government resigns, unless he is brought down within his party by Conservative MPs. If he was deposed as leader, a temporary replacement would be likely pending a full Conservative party leadership election. This post assumes Mr Johnson would continue as leader of the Conservative Party.

The second point is that the scenario explored in this post could create exactly the unusual circumstances that were suggested above where the largest party or grouping cannot, or will not, nominate a new PM. Mr Johnson could announce that no Conservative MP is permitted to accept any offer to be PM and keep the whip. That would rule out 288 Conservative MPs from being PM unless they resigned the party whip. (It would also circumvent my suggested rule – to recap, my suggested rule is that a new PM must normally be called from the largest party or grouping because, as a matter of pure numbers, no one else is likely to command greater numerical support).

Who then would be best placed if all whipped Tory MPs refuse to be PM?

There is a long-standing traditional answer as to who should be called in these kinds of situations. The next in line to be PM in such circumstances is the Leader of the Opposition (‘LOTO’). LOTO is currently Mr Corbyn. He is supposed to stand ready, constitutionally, to step in, if necessary, as PM.

Mr Corbyn, as the leader of the largest party outside the Tory/DUP grouping would therefore appear to be the default option to be called by the Queen in these circumstances. If there was any other opposition grouping that formed which somehow outnumbered Mr Corbyn, the leader of that grouping could claim to be best placed to command the confidence of the Commons. It is fair to say that this possibility seems quite unlikely but if it happened, it might well involve negotiations between the smaller parties and some Labour MPs, and if necessary votes in the Commons as previously discussed. The rest of this post will assume, however, that Mr Corbyn would be called to the Palace and become PM.

Recommending a successor?

Suppose the PM and the Government therefore formally resigns on the morning of Friday 18 October. It is sometimes argued that the incumbent PM has a duty to ‘recommend’ a new PM. This is mistaken. Of course giving formal advice would frequently be entirely illogical because such formal advice by the PM to the Queen is predicated on having the confidence of the Commons. If a PM loses confidence and someone else is best placed to command confidence, how can the incumbent have the standing to advise who else has confidence?

The manufacturing of a duty to ‘recommend’ who to appoint, has somehow been distinguished from formal advice by some commentators. On close examination, it is suggested that the idea is equally hard to follow as a matter of logic. Why is the former PM’s opinion relevant or probative? It is the Commons that has the duty to identify a successor, through the party system or otherwise. A former PM may be asked his or her opinion out of courtesy, but equally, it would be no problem if they were not.

In the current case, therefore, Mr Johnson would be under no duty to recommend a successor. Nor would he be likely to want to make any recommendation in these circumstances. He would be under no obligation to do so.

Sending the Letter

One of the first acts of Mr Corbyn, as the new PM, would be to send the letter mandated in s 1(4) of EUW2 and set out in the Schedule to the Act. Presumably this would happen later on Friday 18^th October to meet the deadline of Saturday 19 October. No doubt any new exit date could be swiftly agreed with the EU27, unless the extension was refused, and the relevant statutory instruments under the European Union (Withdrawal) Act 2018 to change the exit date in domestic law could be laid immediately – possibly over the weekend.

New Prime Minister and new Leader of the Opposition

If he remained leader of the Conservative Party, Mr Johnson would then become the new Leader of the Opposition. Mr Corbyn would be the new Prime Minister. The next steps would appear to follow logically. As the new Leader of the Opposition, Mr Johnson would have the right, by convention, to seek and obtain the parliamentary time to bring a statutory vote of no confidence (‘VoNC’) `in Her Majesty’s Government, led by Mr Corbyn, under the Fixed-term Parliament Act 2011 (‘FtPA’). He might well bring a VoNC at the earliest opportunity.

Two outcomes are possible. If Mr Corbyn were to win the VoNC, he would stay on as the new PM and take over negotiations with the EU27 over Brexit. The numbers would appear to be against him, however. He has only 247 MPs in his party. The possibility cannot be ruled out, however, especially in these febrile times.

If Mr Corbyn were to lose the VoNC, a 14 day period would be triggered under the Act. The most likely subsequent outcome would be that the 14 day period simply runs out and an election ensues with Mr Corbyn as the new PM and Mr Johnson as the new Leader of the Opposition.

Alternatively, Mr Corbyn could win a subsequent a vote of confidence under the FtPA. This is a separate procedure to the VoNC procedure. Such votes of confidence can be brought in the 14 day period by Her Majesty’s Government. They require 50%+1 of the vote in the Commons.  If Mr Corbyn won such a vote of confidence within the 14 days, he would then stay on as PM.

There is another possible outcome, although it would seem quite unlikely. If, within 14 days, Mr Johnson were to be able to demonstrate that he could form a government and that he was in fact clearly best placed to command the confidence of the Commons instead of Mr Corbyn, he might argue that Mr Corbyn would have a duty to offer his resignation to the Queen, or be dismissed. The Queen would then have a duty to reappoint Mr Johnson as PM. This potential pathway would face the same difficulties as discussed above where there is no grouping with an overall majority. There are no circumstances, it is suggested, where the Queen could ever be involved.

Mr Johnson’s next steps if he is reappointed by the Queen as PM

If reappointed, Mr Johnson would then have two choices. He could bring a vote of confidence under the FtPA. Mr Johnson now has only 288 MPs plus 10 DUP MPs so there is no way to know if he would succeed in passing a vote of confidence. If he did succeed, he would continue as PM and the situation would in effect return to the status quo ante save that there would be a new date for Brexit, agreed by Mr Corbyn.

Alternatively, Mr Johnson could choose not to bring a vote of confidence under the Act (it is not obligatory). Or he could lose the vote of confidence, if he brought one. After 14 days an election would then be triggered and would follow under the normal procedures of the FtPA but with Mr Johnson as PM.

Conclusion

Mr Johnson has said he will not send The Letter mandated in EUW2 and he wants there to be an election. He may yet achieve both goals – and might even fight an ensuing election as Prime Minister.

The author would like to thank Gavin Phillipson, Alison Young and Peter Ramsay for their helpful comments on a previous draft.

Robert Craig, AHRC Doctoral Researcher, University of Bristol

(Suggested citation: R. Craig, ‘What Could Happen Next If the Government Resigns Rather than Send the Letter to the EU?’, U.K. Const. L. Blog (11th Sept. 2019) (available at https://ukconstitutionallaw.org/))