Prorogation, “justiciability” and the role of the Supreme Court

What’s at stake in this week’s Supreme Court appeals against the prorogation of parliament?

The background is the government’s decision in August to prorogue parliament for several weeks over September and October. Ostensibly this break, which partly covers time when parliament is normally in recess for party conference season, is to prepare the ground for a Queen’s Speech to start a new session of parliament. But it’s a longer gap than usual for this purpose; and many suspect that the real purpose is to prevent parliamentary scrutiny or objection to the government’s Brexit policy.

The Supreme Court isn’t asked to decide whether the prorogation is a good idea; its task is to consider whether prorogation is legal. There are some Acts of parliament which regulate prorogation: for instance, if the government thinks there’s an emergency, and uses special emergency powers under the Civil Contingencies Act, that law then cuts short any prorogation of parliament in place at the time, so that MPs can come back and control the government’s use of those powers. However, in general the decision to prorogue is a “prerogative” power. That means, in effect, it’s a power of the executive; while officially the Queen prorogues parliament, she acts on advice from ministers.

Executive powers are usually less controversial when a government has a majority in parliament. They are more problematic in the current political situation, when the government not only has a minority in parliament, but also is pursuing a policy (potential a no-deal Brexit) which is opposed by a parliamentary majority, and there is limited time for MPs to intervene. Since the subject of Brexit is as controversial as it is endless, and the parliamentary majority and the executive have opposing views on whether Brexit should happen on 31^st October even without a deal with the EU, the background for this litigation is highly political.

The approach of the English High Court last week in its Miller 2 judgment was to leave it to politics. For the English judges, although (as case law has established) the use of the prerogative is sometimes reviewable in courts, sometimes it is not. (In legal jargon, the latter cases are “non-justiciable”). In this case, there were no standards which could easily be defined in order to judge whether a decision to prorogue parliament could be reviewed by the courts. In other words, the government could not have broken the law when proroguing parliament, because the law (other than where parliament has legislated on the issue) does not restrain when parliament is prorogued.

In contrast, the Scottish appeal court in the Cherry judgment said that the government advice to prorogue could be legally reviewed—and then struck it down. For the Scottish judges, not every prorogation decision could be reviewed, but this one could be, as it was for an “improper purpose” and was an “egregious” exercise of power.

The Supreme Court could choose to support either one of these two approaches—but it could also choose a “third way.” It would be possible to rule that the case was justiciable, but that the limits on the exercise of the government’s power to prorogue parliament were not exceeded in this particular case. With great respect to the English judges, the argument that it is impossible to define standards to judge this issue is unconvincing. The law is full of abstract tests applied on a case-by-case basis to concrete situations: the “best interests of the child,” for example. For this case, the test could be “frustrating the essential functioning of parliament,” for instance.

Legal arguments aside, there’s a further argument of deep constitutional principle why the approach of non-justiciability should not be followed. The current government has signalled its disregard for many of the conventions governing the UK political system, for instance hinting that it might prorogue parliament again or that the prime minister might not resign after a vote of no confidence. Many of these issues are not regulated by statute precisely because parliament has assumed that political conventions would be followed; and the abuse of such conventions is hard to control if parliament is not sitting. Expecting the monarch to enforce them would in turn place under strain a convention central to our constitutional monarchy: that the monarch follows advice of her ministers.

Deciding that the matter is not justiciable might be seen as a green light to further prorogation and breach of political conventions, while ruling that the government has abused its power to prorogue in this case would be perceived by some as excessive interference in politics by the courts. A better course would be for the Supreme Court to rule that the courts would review the exercise of the prerogative in cases where it frustrates the essential functioning of parliamentary democracy, while finding that the recent prorogation fell (just) below this threshold. That would put the government on notice that the UK’s parliamentary democracy is subject to the rule of law—not the rule of Dominic Cummings.