Error of judgement

How the Supreme Court got an issue of great constitutional importance so wrong

This article is taken from the July 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

The decision of the Supreme Court in the Prorogation case — R(Miller) v Prime Minister or “Miller 2” — is the most important constitutional law case of this century. No court had previously exercised control over the relationship between Crown and Parliament in the way the Supreme Court did when it held that Her Majesty’s decision on prime ministerial advice to prorogue Parliament was “unlawful, null and of no effect”, with the legal consequence that the Commissioners who entered the House of Lords were to be treated as carrying “a blank piece of paper”.

It is true that, as the court said, the circumstances that arose in September 2019 were exceptional. Parliament was deadlocked and the two-year negotiating period allowed by Article 50, as extended, was shortly to expire. It does not follow, though, that Miller 2 will be treated as a special case decided on its own facts. It will be cited by advocates retained by politically active litigants: “If the court were able to intervene in those circumstances, notwithstanding the intensely political nature of the underlying issues, then … .”

The case is of great constitutional importance because of the court’s determination that the matter was justiciable. If a matter is justiciable, it is amenable to judicial control by the application of legal rules or standards.

Johnson’s Limited Options

Defining the boundaries of what may be referred to as the zone of non justiciability is an exercise that can only be carried out by the courts. It is an exercise of great constitutional delicacy.

In October 2016, the prime minister, Theresa May, announced her intention to give notice under Article 50 of the Treaty on European Union. Gina Miller and others brought legal proceedings, asserting that notice could not be lawfully given without the authority of an Act of Parliament.

These proceedings (“Miller 1”) did not raise any issue of justiciability. The courts were bound to answer the question raised. The Divisional Court held unanimously that legislation was required before an Article 50 notice could be served. The individual judges were, outrageously, the subject of vituperative personal criticism in the press. The Supreme Court upheld the decision by an 8-3 majority.

The practical effect of Miller 1 was negligible

The practical effect of Miller 1 was negligible. Within a few weeks Parliament passed the European (Notification of Withdrawal) Act 2017, which received Royal Assent on 16 March 2017. Notification of withdrawal was given two weeks later.

In May 2017 Theresa May chose to call a general election and lost her majority. On 26 June, 2018, the European Union (Withdrawal) Act 2018 came into force. It defined “exit day” as 29 March 2019, but this could be (and in due course was) extended by statutory instrument. Section 13 of the Act required parliamentary approval of any withdrawal agreement between the UK and the EU.

MPs who refused to accept the referendum result as final alongside those who regarded May’s withdrawal agreement as “Brexit in name only” combined to vote down that agreement three times, in January 2019 and twice in March 2019. Pursuant to Article 50, the UK would exit the EU on 29 March, 2019. May secured extensions to 31 October, 2019, but her inability to pass her withdrawal agreement through Parliament led to her resignation on 7 June, 2019.

Boris Johnson succeeded her as prime minister. He made it clear that changes to the withdrawal agreement were necessary; and that the EU would only agree to appropriate changes if it seemed that there was a real risk that the UK might leave without a deal. In the absence of a withdrawal agreement or a further extension beyond 31 October, 2019, the UK would therefore exit the EU on 31 October.

The majority of parliamentarians in both houses were strongly opposed to a no-deal exit. Some had a more ambitious objective: to maintain the stalemate until there was no alternative to a second referendum requiring the electorate to choose between an unsatisfactory withdrawal agreement and a reversal of the original vote.

The Prime Minister did not have many cards in his hand in August 2019, lacking control of the Commons and unable to secure the necessary two thirds majority required under the Fixed Term Parliaments Act 2011 to dissolve Parliament. But he could ask the Queen for a prorogation.

On 28 August, 2019, an Order in Council was made ordering that Parliament be prorogued on a day not earlier than 9 September and not later than 12 September to 14 October, 2019; for a period, therefore, of about five weeks. The order was made at a meeting of the Privy Council held by the Queen at Balmoral Castle.

Acting with great speed, Parliament passed the European Union (Withdrawal) (No 2) Act 2019 on 9 September, 2019, which required the prime minister to seek a further three-month extension of the Article 50 period on 19 October unless Parliament had by then approved either a withdrawal agreement or a no-deat exit. There was no attempt to legislate to stop the prorogation.

The prorogation litigation in the lower courts

In Scotland, the SNP MP, Joanna Cherry, and others had already brought proceedings challenging the lawfulness of an anticipated prorogation. On 4 September, 2019, in the Outer House of the Court of Session, Lord Doherty held that the matter was not justiciable. But on 11 September the Inner House of the Court of Session granted a declaration that the prorogation was unlawful, null and of no effect. It held that the prorogation was motivated by an improper purpose, namely to “stymie” Parliament. (A golfer lays a stymie when his ball blocks the path of the opponent’s ball to the hole, a ploy that was outlawed in 1952.)

The court granted permission to appeal to the Supreme Court. In England, Gina Miller and other claimants brought judicial review proceedings challenging the lawfulness of the decision to prorogue. The case was argued in the Divisional Court, with judgment on 11 September.

The importance of the case was reflected by the constitution of the court: the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. Their judgment was that “The Prime Minister’s decision to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts.”

The court’s reasoning was that whilst executive decisions were not immune from judicial review simply because they are carried out pursuant to an exercise of the royal prerogative (decisions which directly impinge on individual rights and interests are now usually justiciable), some prerogative powers relating to matters of high policy, including a decision to dissolve Parliament, remained immune from judicial review and were “clearly not justiciable”.

The issue of justiciability must be taken first, as a threshold objection, prior to any exploration of the facts. The court cited several cases considering the non-justiciability of political questions, including: Gibson v Lord Advocate (1975) in which Lord Keith stated “the making of decisions upon what must essentially be a political matter is no part of the function of the court, and it is highly undesirable that it should be”; the GCHQ case (1985) in which Lord Roskill had observed that a dissolution of Parliament would be non-justiciable; A v Secretary of State for the Home Office (2005) whereby Lord Bingham stated “it is the function of political and not judicial bodies to resolve political questions”; as well as Robinson v Secretary of State for NI, (2002); Wheeler v Office of PM (2008); and McClean v First Secretary of State (2017).

One of the reasons why prorogation was non-justiciable was that there were no legal standards or criteria which would enable the court to adjudicate whether the length of the prorogation (five weeks) was excessive. The purpose of prorogation is not limited to preparing for the Queen’s Speech. The Meeting of Parliament Act 1797 and the Prorogation Act 1867 contemplate that an existing prorogation can be lengthened by proclamation. Accordingly: even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the EU rather than preparations for the Queen’s Speech, that is not territory in which the court can enter with judicial review.

The Cherry and Miller 2 appeals were argued in the Supreme Court on 17, 18 and 19 September. Judgment was given on 24 September, less than a month after the meeting of the Privy Council at Balmoral.

The Supreme Court judgment

The Supreme Court’s judgment described the case as a “one off” before continuing “but our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution”. The judgment of the Divisional Court was referred to, briefly, at paragraph 29. At paragraph 35 the analysis which leads to the conclusion that there is no issue as to justiciability

In the case of prerogative powers, it is necessary to distinguish between two different issues. The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept The distinction is thus drawn between issue A, concerned with the existence/extent of the power; and issue B, concerned with the mode of exercise of the power. The court found that the question of justiciability simply cannot arise in relation to issue A: the existence/extent of a prerogative power and whether “it has been exercised within its limits”. The court is always able to review whether a prerogative power has been exercised within its limits.

At paragraph 38, the court establishes the standard by reference to which the lawfulness of the prime minister’s advice is to be judged. Two fundamental constitutional principles are identified. First, parliamentary sovereignty: the principle that laws enacted by the Crown in Parliament are the supreme form of law. The second principle is perhaps less familiar, though undoubted: the principle of “parliamentary accountability”. Ministers are accountable to Parliament through various mechanisms. None of those mechanisms can operate while Parliament stands prorogued.

Paragraphs 42 to 44 contemplate the possibility of an indefinite prorogation. The need for the government to obtain parliamentary authority for the use of public funds, and in respect of the maintenance of the armed forces, is mentioned, but the court observes tersely: “Those practical constraints offer scant reassurance.”

This leads to the construction at paragraph 50 of a set of conditions defining the limits of the power to prorogue (issue A):

… 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.

It appears that the court is saying that the prorogation will be unlawful if it frustrates or prevents Parliament from carrying out its constitutional functions unless there is reasonable justification for the prorogation. A prorogation automatically frustrates/prevents Parliament from carrying out its constitutional functions. The formulation of the conditions entails the conclusion that a prorogation is unlawful unless there is reasonable justification for it. The formulation is incomplete, because the judgment does not at any point seek to identify the criteria that would enable the court to test the reasonableness of any justification that might be advanced.

This is a very material and alarming omission. Was it fair to expect the Prime Minister’s lawyers to satisfy a test — “Prove reasonable justification for the prorogation” — which was first formulated in the Supreme Court’s judgment and, even then, was formulated in terms that provided no guidance as to what would amount to reasonable justification?

Where does all this leave the issue of justiciability? Paragraph 52 provides the answer, which had been foreshadowed by the earlier discussion of the distinction between issue A (existence/ extent) and issue B (mode of exercise). The answer is that the set of conditions identified at paragraph 50 are concerned with “the extent of prerogative powers”; not with “the mode of exercise of the prerogative power within its lawful limits”. It follows, it is said, that the matter is by definition justiciable. It is an issue A point; not an issue B point. No examination of the Prime Minister’s motives is required. It is, so the court implies, a sharply defined point of law.

The case law concerning the non-justiciability of high prerogative powers and of political questions is therefore not addressed. The Divisional Court’s analysis is not addressed. None of that is relevant, the court holds, because there is no issue as to justiciability.

The court then draws the threads together. Does the prorogation frustrate or prevent the constitutional role of Parliament in holding the Government to account? “The answer is that of course it did” (paragraph 56). Is there a reasonable justification for taking action which “has had such an extreme effect upon the fundamentals of our democracy”? The documentary evidence is briefly reviewed, and then the court concludes:

It is impossible to conclude, on the evidence which has been put before us, that there was any reason — let alone a good reaso — to advise Her Majesty to prorogue Parliament for five weeks … It follows that the decision is unlawful.

The final conclusion of the court resonates:

[The] advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect: see, if authority is needed, R (Unison) v Lord Chancellor, paragraph 119. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

Sidestepping the justiciability issue

The analysis which led the court to hold that there was no justiciability issue rested on the distinction drawn in paragraph 35 between two questions:

(A) Does the power exist (and if it does exist, what is its extent)? This is the court marking out the boundaries, and then patrolling the boundaries. Anyone purporting to exercise the power when outside the boundary will be acting unlawfully by definition. There is no issue as to justiciability.

(B) If the power exists and it has been exercised within its limits, is the exercise of the power open to challenge? This is the court accepting that the power has been exercised within the relevant boundaries; and then evaluating a challenge to the exercise of the power on familiar grounds; irrationality; improper purpose; taking irrelevant matters into account; etc.

At first sight, there is a clear distinction between an issue as to the existence of the power, and an issue as to the way in which the power (which exists) has been exercised. But the court blurs the distinction when it defines the first issue as “whether a prerogative power exists, and if it does exist, its extent.” The word “extent” introduces ambiguity. If the “extent” of the power is defined by reference to the mode of exercise of the power, then one must carry out an issue B enquiry (has the power been exercised well/properly?) in order to answer the category A question.

This is what the court has done. By placing the question “Is there a reasonable justification for the decision to prorogue” at the centre of the test which is supposed to answer issue A: “Does the power to prorogue exist in these circumstances”, the court has collapsed the distinction between the issue A enquiry and the issue B enquiry. What is supposed to be an issue A enquiry, and therefore a matter that is necessarily justiciable, has become an issue B enquiry, focused on the reasons why the power is being exercised: the concept of “reasonable justification”.

Monarchs have been proroguing Parliament for centuries

The collapse of this distinction destroys the court’s analysis of the justiciability issue. The judgment rests on a false premise: namely, that there is no justiciability issue. If one tries to apply the (collapsed) distinction drawn between non-justiciable issues about extent/existence of a power and justiciable issues about the exercise of a power to the act of proroguing Parliament, the unreal nature of the court’s approach is obvious. Monarchs have been proroguing Parliament for many centuries; in modern times, on prime ministerial advice. Parliament has been prorogued in the 20th century for periods well in excess of five weeks (in 1914 and 1930). In 1948 there was a sequence of short prorogations for tactical reasons.

There is no rule or convention that the only legitimate purpose of a prorogation is to prepare a new legislative programme to be set out in the Queen’s Speech. It is obvious that the Prime Minister had the power to advise (cause) the monarch to prorogue Parliament. Did he act properly when exercising that power? The central issue in Miller 2 was (or should have been) whether it was constitutionally appropriate for the court to address that question.

It is respectfully suggested that the rule of law requires that courts, like Parliament, should squarely confront the constitutional implications of what they are doing. In Miller 2 that fundamental principle should have required the court to recognise that the Prime Minister was exercising a power to prorogue (or was advising the monarch to exercise a power to prorogue) that had existed for many centuries, was subject to no relevant statutory constraint, and had over time been used for many purposes and in relation to varying periods of time, sometimes exceeding five weeks. The Crown, acting on ministerial advice, was on well-trodden constitutional ground.

The real question that arose was whether the court could intervene on the ground that the Prime Minister had caused the Crown to exercise the power improperly (in some relevant sense of that word). In answering that question, it was necessary for the court to address, squarely and comprehensively, the case law and the books and the historical events which had informed the Divisional Court’s unhesitating decision that the prorogation was not justiciable in Her Majesty’s courts.

The court did not do that. On the contrary — and this is one of the most immediately striking things about the court’s judgment — the case law on justiciability which lay at the centre of the Divisional Court’s judgment is not mentioned. The relevant cases appear at the start of the report, under the heading “The following additional cases were cited in argument”, but not in the body of the judgment. The reasoning of a Divisional Court constituting the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division is not mentioned.

Treating the Divisional Court’s decision as being of no account could only be justified by the application of the Issue A/B distinction. If that distinction collapses upon itself, then Miller 2 falls. It would be authority for no proposition, because the court has failed to answer the question that arose on the threshold of the case: was the Prime Minister’s decision to advise the Queen to prorogue Parliament justiciable in Her Majesty’s courts? The Supreme Court’s judgment would be — to borrow a metaphor from its judgment — a blank piece of paper.

Why it was non-justiciable

The prime minister chose not to give evidence. The documentary evidence as to the reasons for the prorogation was sparse. It was obvious that Brexit considerations lay behind the prorogation. The Supreme Court did not say this in terms in the judgment, but in oral argument it seemed that the Justices regarded the Prime Minister’s coyness as to the true reasons for the prorogation with disfavour.

But what if Boris Johnson had made a witness statement in which he gave evidence candidly about all aspects of the difficult negotiations with the EU; of the consequences of failing to persuade the EU to change its negotiating stance; of his perception of the way in which parliamentary activity was damaging the UK’s negotiating position; of the difficulties in negotiating while kept in position as a “zombie” prime minister by a House of Commons which refused to permit a dissolution; of the balance he was designedly striking by proroguing for about five weeks, thereby sending a message to Europe while preserving Parliament’s ability to hold the government to account in the period immediately before exit day?

What if such an account had been placed before the court? How, then, could it be appropriate for the court to adjudicate whether this was “reasonable justification” for the decision to prorogue. The logic of the judgment compels the conclusion that the court would be obliged to adjudicate on that issue. It is unthinkable that the court would in fact have been prepared to do so. It would have recognised that the issue of reasonable justification was nakedly political, and was terrain on to which the court could not possibly travel.

The court was wrong

The court was wrong to place weight on the absence of a witness statement from the Prime Minister. He was engaged in negotiations with 27 other sovereign states concerning a matter of great importance to the nation. Foreign policy, and dealings with other states, are squarely within the zone of non-justiciability.

There are compelling practical reasons why that should be so. What principle of law or politics makes it obligatory for the Prime Minister to provide a full explanation of the steps that he has taken to improve the country’s negotiating position? Effective international negotiation may not be compatible with the duty of candour that is owed by public authorities in public law cases which raise justiciable issues.

Further, answering the question whether the prorogation had frustrated Parliament’s ability to discharge its constitutional functions to a sufficiently serious extent to justify the intervention of the court was far from straightforward. The Supreme Court treated the answer to this question as obvious. It was not obvious.

There is no evidence that the return of Parliament in late September as opposed to mid-October made any real difference at all. Of course, the Supreme Court did not have the benefit of foresight, but with hindsight one can see that talk of the prorogation having “an extreme effect on the fundamentals of our democracy” was hyperbolic.

The Fixed-term Parliaments Act 2011 placed very significant constraints on the previously unfettered prerogative power to dissolve Parliament. Parliament clearly could have chosen to impose what it considered to be appropriate constraints on the power to prorogue; instead, it provided expressly that the Act did not affect prorogation. In 2019, Parliament had legislated on two occasions in circumstances in which the possibility of a tactical “Brexit prorogation” was contemplated and addressed: the Northern Ireland (Executive Formation) Act 2019 and the European Union (Withdrawal) (No 2) Act 2019. The Supreme Court ehould have hesitated long and hard before imposing additional judge-made constraints.

Counsel for the claimants pressed home an argument based on what might be called the Armageddon scenario. What if a prime minister prorogued Parliament indefinitely? That would suspend parliamentary democracy, and might bring it to an end. The court attached weight to this argument (paragraphs 42-45). It was wrong to do so. The argument had been demolished by Lord Reed in Miller 1:

Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declaration of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.

The court failed to recognise, first, that there were very substantial constraints making the subversion of democracy by means of an indefinite prorogation a practical impossibility. The court regarded the fact that the executive needs Parliament to authorise it to draw on public funds, and to maintain the armed forces, as “scant reassurance”, but it did not say why. The court failed to have regard to the operation of powerful (though legally unenforceable) constitutional conventions.

Further, as the Divisional Court said, it was wrong to speculate as to how the courts and the constitution would react in the event of the Armageddon scenario. For instance, the Crown might decline to follow the constitutionally improper advice.

The Prime Minister’s decision to prorogue for five weeks in September/October 2019 may well have been unwise, but it was not a coup and “the argument from Armageddon” was irrelevant to the issues that arose.

The dangers of political litigation

Judges should be very wary of political litigation which travels to court at breakneck speed at a time of intense political controversy. Miller 2 was wrongly decided. The central flaw in the Supreme Court’s decision concerned the issue of justiciability. That was an issue of enormous constitutional importance. It was answered correctly by a powerfully constituted Divisional Court on the basis of an orthodox and careful examination of the relevant case law.

The Supreme Court held that the issue did not arise, and therefore did not answer it and, remarkably, did not refer to the content of the Divisional Court’s judgment or to the cases on which that court had relied. The distinction on which the Supreme Court founded the conclusion that there was no justiciability issue is hopelessly unstable and cannot begin to bear the weight that the court placed upon it.

Justice Oliver Wendell Holmes was right when in 1904 he suggested:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

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