Supreme Court: prorogation unlawful

25 Sep 2019 | by Steven Gee QC

The case before the Supreme Court will not determine whether the UK should remain in or leave the EU, or the terms on which it should leave. It is not about the competing arguments about Brexit. It is a case about the Constitution of the United Kingdom. Much of it is unwritten, but it exists. It is the same whatever a person’s views are on Brexit. This is a case about the Rule of Law. It concerns principles of fundamental importance in a Constitutional Democracy.

The United Kingdom operates through Parliament, the Executive and the Courts. The advice on prorogation , and the Order in Council resulting from it, produced for a period, an empty Parliament. Parliament questions the Executive, holding it to account, considers whether to pass legislation and to approve statutory instruments. A driver needs time to react and stop. Parliament needs adequate time to consider and react to current events, and especially so when parliamentary time is not readily yielded by the Government.

Power corrupts and absolute power corrupts absolutely. The Rule of Law in a constitutional democracy requires a functioning Parliament. Where Parliament has no ability to perform its functions for a period the Government is unchecked. What happens during that period may be irreversible. If a Government is in fact the only body holding itself to account during that period, it has absolute power.

The case before the Supreme Court had three issues: (A) Could the court review judicially advice on prorogation by the Prime Minister and the Order in Council? Were there standards which could and would be applied by the Court in a judicial review? (B) What were the facts? (C) What remedy could and should be granted?

Issue (A)

The Government argued that prorogation necessarily involved a “political decision” unsuitable for Judicial Review. The Court could not intrude into the political arena and examine matters to be determined by politicians. Gina Miller argued that where the motive behind prorogation, or its practical effect, was to prevent Parliament discharging its functions, there had to be justification for this. What was to stop the Government proroguing Parliament again after 17th October? The justification could not be that Parliament might disagree with the Executive and exercise its constitutional functions. It had to be a justification both of its timing and length.

The Government argued that it had left sufficient time to Parliament to react to Brexit developments after 17th October, the date of a meeting of EU leaders. This argued that prorogation would not cause irreversible consequences. A week is a long period in politics. Judging the risks resulting from an empty Chamber of irreparable consequences, does not answer whether Parliament could be prevented lawfully from discharging its functions for that period. If Parliament could sit and decide what it wishes to do as events unfolded, then matters are not left in the sole hands of the Executive. It is Parliament which holds to account the Executive, and not the Executive which has the right to control Parliament.

The words “political decision” might cover any decision taken for political reasons. Many decisions are affected by political considerations. But the fact that a decision is “political” does not immunise it from judicial review. The Government may wish to purchase houses under statutory compulsory purchase powers to build a hospital, so that its MP has a better chance of being re-elected. This would be a “political decision” ripe for judicial review as an improper use of statutory powers. By “political decision” the Government argued that a decision taken to bring about its political aims was not reviewable because those aims were themselves a matter of political judgment and could not be reviewed by the court. It had the power to prorogue to achieve its political aims. It argued that prorogation was to allow for the Party Conferences, and to prepare for a Queen’s speech to set out those aims.

The Queen’s role is not that of an arbiter between rival political views. It is not right for the Queen to be given the burden of involvement in politics, or deciding what is lawful. There are many judicial precedents at the highest levels for exercises of the Royal Perogative powers being reviewed by a court. The Government argued that Parliament would have to be recalled to approve funds for the standing army. This did not address the possible consequences in a Constitutional Democracy of allowing the Executive power to suspend Parliament without proper justification.

To allow the Executive the power to disable Parliament from exercising its functions for a limited period chosen by the Executive opens the door to the suspension of Constitutional Democracy. If the exercise of the power were not reviewable by a court, the Government could take for itself for a period of its own choosing, absolute power.

Issue (B)

Facts are decided by evidence. The timing and length of prorogation had to be justified by the evidence considered as a whole including what is said and what is not said. In this case there was a partially redacted memorandum written by a Government assistant, and a short note from the Prime Minister approving it. It is expected practice on judicial review that the decision maker provides an affidavit setting out the reasons for the decision. No affidavit was made. The absence of an affidavit was itself evidence to be taken into account. The relevant facts include the context in which a decision is taken. That included the Bills going through Parliament which would be lost through prorogation, what was the position on statutory instruments being considered for the Brexit process, the imminence of a possible no deal Brexit and whether the stated aims of prorogation required the particular period for prorogation chosen by the Government.

Issue (C)

Gina Miller argued that the remedy should be limited to a declaration that the advice had been unlawful, leaving events to unfold and a decision to be taken on the lawfulness of the Order in Council to be deferred. This limited submission was in the context that the courts do not interfere with proceedings in Parliament, for example what Parliament should debate, and what votes it should take. The contrary argument is that for the purpose of deciding the court’s power to intervene, the Order was a prelude to proceedings in Parliament and not proceedings themselves. That course would have involved adjourning the appeal brought by the Government from the order made by the Inner House of the Court of Session quashing the Order in Counsel.

The questions from the Supreme Court raised whether a definitive urgent answer was needed to provide certainty and avoid argument about what should be done.

The Decision

It is said that what is sovereign is only “the Queen in Parliament”, and not the House of Commons on its own. This makes the point a Bill has to be passed by both Houses and receive Royal Assent, before it becomes law. The words understate the functions of the House of Commons.

The decision to declare unlawful and void both the advice and the Order in Council, will be read by students politicians and judges from all over the world for many years into the future, as a precedent on a fundamental Constitutional issue, to be afforded the respect due to an unanimous reserved decision of a Bench of 11 Supreme Court Justices, reached after arguments of the highest quality, on the Rule of Law.

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