The Supreme Court has done lasting damage to our constitution

The Supreme Court’s prorogation judgment proves that it is not just hard cases that make bad law. If the Court had faithfully upheld the law of the constitution, it would have ruled that UK courts had no jurisdiction to quash advice to prorogue parliament, let alone to declare that a prorogation carried out in parliament was null and of no effect.

Unfortunately, the Court did not uphold the law of our constitution. The Supreme Court worked a radical change in our law, one that makes significant inroads into the political constitution. Many who defend, or otherwise welcome, the judgment openly admit this but argue that the change was justified by the supposed outrageousness of the government’s tactics. Even former Supreme Court Justice Jonathan Sumption, whose 2019 Reith lectures rightly lament the rise of the courts and the decline of politics and who argued a month ago that prorogation was outrageous but lawful, now says something similar, asserting that the Supreme Court was right to change the law.

Note how radical the Court’s action was. No other court in the Westminster world has ever quashed advice to prorogue parliament, let alone prorogation that has been carried out. This is not because prorogation is usually routine. Prorogation always requires political judgment because it curtails the parliamentary timetable and terminates unfinished parliamentary business. Other Westminster systems, including in Australia and Canada, have more recent experience than the UK with politically controversial prorogation. These controversies were settled politically; the intervention of the courts was not contemplated. On the contrary, the common law, reinforced in our country by Article 9 of the Bill of Rights 1689, forbids judicial intervention in this domain.

In the landmark case of GCHQ, Lord Roskill explained that while the exercise of some prerogative powers might be amenable to judicial review (or “justiciable,” to use the legal term), the exercise of some clearly would not, including dissolution, foreign affairs, and defence of the realm. He did not mention prorogation but it fell within this list—like dissolution it is a prerogative concerning the relationship between the Crown and the Houses of Parliament, the exercise of which is for ministers accountable to parliament and the electorate. The Supreme Court’s judgment last week abandons the principled limitations Lord Roskill articulated.

The power to prorogue can of course be abused, most obviously to avoid losing a vote of no confidence in the House of Commons or to remain in office after such a vote has been lost. The Queen may be entitled to refuse to prorogue parliament in these circumstances. But it would be a mistake to think, as the Supreme Court justices may have, that the Queen is the main constraint on abuse of the prerogative, such that the Court should attempt to protect Her Majesty by taking over responsibility for preventing abuses. The main control on the prerogative is political, with the government risking withdrawal of confidence and having to answer for its exercise to the Commons in due course and ultimately to the electorate. The spectre, conjured up across the court hearing, of a very long prorogation was unreal. Not only because this would be political suicide, but also because it would not be possible to govern without regular resort to parliament.

The Court does not openly admit—rather it takes pains to obscure—that it is making new law. The Court relies on the distinction between the scope of the prerogative and its manner of exercise, noting that there is no principled objection to the courts determining the former. True enough. But the Court collapses the distinction in practice, asserting that the scope of the power to prorogue does not now include prorogation that unreasonably prevents parliament from discharging its constitutional function. This amounts to policing the manner of exercise of the power and does so in a remarkably intrusive way, asserting that prorogation will only be lawful if the prime minister persuades the courts that he has a reasonable justification.

No constitutional principle justifies this intervention into high politics. The Supreme Court calls in aid the principle of parliamentary sovereignty, which is legal bedrock in this country, but which the Court glosses, asserting that it is not only a rule about the lawmaking authority of the Queen in Parliament, but also requires maximisation of practical opportunities to legislate, by implication otherwise than on the initiative of the Crown. Relatedly, some lawyers and scholars now argue that every prorogation qualifies parliamentary sovereignty, but the qualification is justified if the prorogation is short. With respect, this is a reductio ad absurdum. Parliamentary sovereignty has never been understood to be qualified when parliament is not in session. Acts of Parliament remain law and the Queen in Parliament’s legislative authority remains inviolate. The same is true both during a recess, when the Commons may be recalled only on the initiative of the government, and during a dissolution. The Supreme Court’s use of parliamentary sovereignty is simply unconvincing, failing even to attempt to answer the English Divisional Court’s reasoning to the contrary.

The second principle the Supreme Court invokes is parliamentary accountability. This is, of course, central to our constitutional order. But it is not a rule of law. It has never before been a ground on which to quash what would otherwise have been lawful action. When courts have recalled the importance of parliamentary accountability, they have done so to recall that not every control on public power is legal. It is a reason for courts not to intervene, rather than a reason for them to change the law, displacing political dynamics, in an attempt to promote such accountability. The Supreme Court’s judgment cannot be squared with its ruling in the first Miller case (on whether a new Act of Parliament was required to authorise triggering Article 50) that courts cannot lawfully enforce constitutional conventions. The Court was right then (on this point) and wrong now, which is not to concede that this prorogation flouted a constitutional convention.

Why then did the Supreme Court make the ruling it did? The heart of the judgment is the assertion that this prorogation, in view of the Brexit timetable, had an extreme effect on the fundamentals of our democracy. This is not a legal argument. As a political evaluation of a perhaps imprudent prorogation, it was not only outside the Court’s jurisdiction, but also grossly overstated: the prorogation was clearly calibrated with an eye to its political defensibility and left time for parliamentary power over the government to be brought to bear, as indeed it was. The Court’s intervention is likely to do lasting damage to the political constitution and was neither justified nor permitted by the law that it was the Court’s duty to uphold.

Richard Ekins is Professor of Law, University of Oxford and Head of Policy Exchange’s Judicial Power Project; Stephen Laws is Senior Research Fellow, Policy Exchange and former First Parliamentary Counsel