Case Comment
Basic Structure tendencies
in the UK Parliament Prorogation
Judgement
M Jashim Ali Chowdhury
PhD Candidate
(Parliament Studies)
King’s College
London
Abstract
The recent
Parliament Prorogation Case (Cherry-Miller II) of the United Kingdom Supreme
Court is being seen as a remarkable development in the constitutional system of
United Kingdom. Though the UK started its journey towards a formal system of
Separation of Power since 2005, a ‘weak form’ of judicial review in the nature
of constitutional dialogue started since the 1998 Human Rights Act. The UK
Supreme Court has shaped the system of judicial review significantly since
2017. The Gina Miller I (2017) was successful in
asserting the sovereign parliament’s say in the Brexit process and thereby over
the foreign affairs power of the executive. With the Supreme Court as an umpire
in the power struggle between the legislature and executive, Gina Miller I
marked the beginning of judiciary’s crippling into a tacit scheme of checks and
balances. If Gina Miller I was a silent beginning, the recent Parliament
Prorogation Case (Cherry-Miller II) perhaps constitutes a vocal articulation of
judicial guardianship over the UK’s now-not-invisible scheme of checks and
balances. This short analysis tries to argue why and how this is the case.
1. Introduction
Recent Parliament Prorogation Case
in the UK has done more than annulling a Royal prerogative of prorogation.
Mindful of the significant structural and doctrinal questions of constitutionalism
involved, it is perhaps rightly asserted that it marks “the most significant
judicial statement on the [UK] constitution in over 200 years”.[1]
Implications of the decision are so conspicuous that critiques brand it as a “novel
elevation of very general constitutional principles into actionable
propositions of law” and also a “politically contestable” reach of judicial power.[2] Before attempting the doctrinal aspects of the case, a
brief account of recent structural adjustments in the UK’s constitutional
system is necessary. A brief case history would then be followed by an
elaboration of the constitutional principles surrounding the case. The case
comment would then conclude by hinting some future implications of the
decision.
2. The Institutional Context
The Westminster system of the United
Kingdom is popularly known as a system of fusion, rather than separation, of
executive, legislative and judicial powers. It is only in 1998 that the Human
Rights Act marked the judiciary’s entry into an era of ‘democratic dialogue’[3]
where the court would convey a signal of any other statute’s inconsistency of with rights protected by the Act.
Next, the Constitutional Reform Act of
2005 initiated a drastic structural realignment between the executive, legislature
and the judiciary. House of Lords lost its Highest Court of Appeal status.
Instead, framework for a separate Supreme Court was laid down. Lord
Chancellor’s tripartite role of Justice Minister, Chief of the Judiciary and
Speaker of the Lords was curtailed down to Ministry of Justice only. A separate
Judicial Appointments Commission was established. Speakership of the House of
Lords was assigned to an elected Lord. If the Constitutional Reform Act 2005
stands for the UK’s transformation from a system of Fusion of Powers towards
one of Separation of Powers,[4]
the recent Parliament Prorogation Case, it
may be argued, might have initiated the system Checks and Balances there.
3. Case History
In 2016, British people voted by a very
narrow margin for UK to leave the European Union. Soon after the referendum, a
civil rights activist Gina Miller approached the court seeking a declaration
that the government of UK may not leave the EU with or without a negotiated
deal unless the deal or no-deal is explicitly endorsed by the Parliament. By
now known as Gina Miller I, the case was successful in establishing that
government’s unilateral move with the Brexit process would affect the
parliament’s pre-established say under the European Communities Act 1972 (Miller
v Secretary of State for Exiting the European Union [2017] UKSC 5).
Parliamentary participation in the Brexit
process being settled,[5]
the European Union (Withdrawal) Act 2018 fixed April 12, 2019 as the exit date
for Britain. Later, parliament rejected Prime Minister Theresa May’s negotiated
Brexit Deal thrice. It also twice disapproved the option of leaving EU without
any deal. Theresa May’s failure to deliver Brexit within April 12, 2019
resulted in the passage of European Union (Withdrawal) Act 2019 which called
for extension of Brexit date beyond April 12, 2019. Consequently, UK and the EU
agreed on October 31, 2019 as the new deadline for Brexit. By the law,
Britain would move out of EU on October 31 if nothing otherwise is done by the
government or parliament in the meantime.[6]
Assuming the premiership, Boris Johnson, a staunch
Brexiteer, started preparing for a Deal or No-Deal Brexit on October 31, 2019.
On 28 August 2019, reckoning a parliamentary revolt against his plan, Johnson
chose a rather bold path and advised the Queen to prorogue parliament.
Accordingly, the parliament was prorogued from 9 September to 14 October 2019. Such a
sudden and unusually long prorogation was considered a move to thwart the
parliamentary stance against No-deal Brexit. MPs across party line, civil
society and mass media were outraged by the prorogation and felt betrayed.
Speaker of the UK House of Commons, John Bercow, decried the move as a ‘constitutional
outrage’[7]
and officially noted it in the parliamentary proceedings as a ‘not normal,
typical and standard’ prorogation.[8]
Even before the formal prorogation, Joanna Cherry and 77
other MPs sensed the government’s intention and initiated a Scottish court
proceeding to stop such a course. After the prorogation, Gina Miller and
ex-Conservative Prime Minister John Major joined a Queen’s Bench Division case
in London. Joanna Cherry’s argument was rejected in preliminary hearing before
the Lord Ordinary (Lord Doherty) in Scottish Court of Sessions. The Inner House
of the Court however overturned the decision in favour of Cherry and MPs (Joanna
Cherry and others v. The Advocate General [2019] CSIH 49, hereinafter
referred to as CSIH within the parenthesis). Gina Miller’s case, on the other hand, was rejected by
the High Court of Justice in London (Gina Miller and others v. The Prime
Minister [2019] EWHC 2381 (QB) hereinafter referred to as EWHC within the
parenthesis). Appeals
from both the decisions reached the UK Supreme Court (Gina Miller v. The Prime
Minister & Advocate General v. Joanna Cherry [2019] UKSC 41
hereinafter referred to UKSC within the parenthesis).
4. On Justiciability of Prorogation
The very first question of the case was
whether the Royal prerogative of prorogation stood justiciable by the court.
The government side, Lord Doherty in Court of Sessions in Scotland and the
Queen’s Bench Division in London viewed the prerogative of prorogation as a
matter of “high policy” and/or “politics” not measurable against legal
standards (UKSC, para 31-34; CSIH, para 18; EWHC, para 42 and 51). This side of
the argument however acknowledges some “circumstances” or “subject matters”
beyond “high policy” or “politics” as justiciable (CSIH, para 18; EWHC, para
34). The Inner House of Scottish Court of Sessions and the UK Supreme Court, on
the other hand, note the ‘high policy’ and/or ‘politics’ argument but refuse to
accept it as “sufficient reason for the courts to refuse to consider” a
prerogative (CSIH, para 24-46, 91 and 104; UKSC, para 31). For this side of the argument, exercise of prerogatives power,
involving politics/high policy or not, must be tested for its legality,
propriety
and reasonableness (CSIH, para 91, 103 and 104).
Secondly, the Court
refused to accept the executive’s political accountability to parliament as an
absolute bar to judicial prove into the prerogative of prorogation (UKSC, para
33).[9]
While political accountability of the executive has been traditionally
considered a barring factor for judicial inquiry (UKSC, para 47), a prerogative
exercised to the detriment of parliament’s political accountability functions
will be untenable (UKSC, para 50). Similarly, the Supreme Court refused to
endorse the concept of separation of power as a bar to judicial review of
prorogation. The Supreme Court rejected the Separation of Power based
hesitation of the Queen’s Bench Division (EWHC, para 60)[10]
by holding that the court will in fact be upholding separation of power by
involving in this type of executive subjugation of the parliament (UKSC, para
34). Lord President of the Scottish Court of Sessions added to the argument by
holding that court’s meddling into the prorogation was not a dictation
over the sitting of parliament. It was rather curbing an attempt to restrict
the parliament’s sitting days (CSIH, para 58).
Thirdly, the Supreme
Court did not give in to the government ‘blunt argument of no-go area’[11]
based on the doctrine of internal proceedings of parliament (UKSC, para 63). It
rather proceeded to weigh the matters on merit. Relying in the MPs’ Expenses
Case (R
v. Chaytor [2010]
UKSC 52), the Court held that it is upon the court to decide
whether a particular matter is covered within the internal proceedings of
parliament. It
was a Royal Commission issued under Royal prerogative exercised pursuant to a
Prime Minister's advice and imposed upon the parliament from outside. Seen from
this perspective, prorogation is not an internal proceeding of parliament (UKSC, para 66-68).
The argument is even stronger in case in hand where a prorogation is imposed
upon an otherwise unwilling parliament, a protestant Speaker and a rebellious
majority of members. Here again, the Court has expressed its readiness to pitch
the constitutional principle of internal proceedings against the principle of
parliamentary sovereignty and found that the alleged prorogation put one
principle in sharp contrast with the other. Such an “unlimited power of prorogation
would therefore be incompatible with the legal principle of Parliamentary
sovereignty” (UKSC, para 42).
5. “Actionable” Constitutional Principles
Apart from test of
legality and propriety and reasonableness of prerogatives, the UK Supreme Court
in this case introduced a novel test of consistency with other constitutional
principles like parliamentary sovereignty and executive accountability to the
parliament (CSIH, para 51 and 91; UKSC, para 41, 48 and 50).[12]
This requirement of compatibility with other ‘fundamental principles of [our]
constitutional law’ (UKSC, para 41) is of great significance at least for two
reasons.
First, justiciability
doctrine in the UK so far maintained a distinction between the existence of
prerogative and exercise of the prerogative. Here in this case the Supreme
Court considered the compatibility with other constitutional principles like
parliamentary sovereignty and political accountability of the executive to
parliament as a limit on the power. Those constitutional principles were not
used as a tool of judging how the power was exercised. This being the case, the
ambit of justiciable prerogatives stands wide opened and non-justiciability is
effectively “jettisoned”.[13]
Secondly, the Supreme
Court seems to develop an ‘adverse impact test’ for adjudicating the principles
of accountability and sovereignty. The Queen’s Bench Division did not find ‘any measurable
standard’ of determining the parliamentary time required for holding the
government to account over Brexit (EWHC, para 57). It also argued that relations between the executive and legislature is a ‘territory into which
the courts should be slow indeed to intrude by recognising an expanded concept
of Parliamentary Sovereignty’ (EWHC, para 64). The position of law expressed by
the Queen’s Bench Division is apparently not at odds with the so far held
position of law in the UK. If the position was not a misstatement of law, then
the Supreme Court’s adverse impact test should be an innovation over the
existing law. By seeking to judge a Royal prerogative by reference to its
adverse impact on some other constitutional principles, the Supreme Court has
supplied the ‘measurable standard’ so far missing in the UK.
6. The
Decision
The only reason
offered by the government for prorogation was the time required for preparation of a
new legislative program to be outlined in the Queen’s speech in Mid-October
2019. This however could not hold ground on the face of an unchallenged evidence
of ex-Prime Minister John Major who testified that it usually does not take
more than four to five working days to devise a legislative program (CSIH, para
55-57 and 123; UKSC, para 58-59). While the judiciary is not supposed to second
guess any other reasons, no-deal Brexit, for example, not offered by the
government, the Supreme Court rested its observation to this: “It is impossible for us to conclude, on the evidence which has been put
before us, that there was any reason - let alone a good reason – for the
prorogation. It follows that the decision was unlawful” (UKSC, para 61).
7. Conclusion
Beside the first ever nullification of parliament prorogation in the UK history, the decision has signalled an ostensible endorsement of Basic Structure tendency in judicial review. With this, the UK Supreme Court has taken judicial review power far beyond the constitutional dialogue model sanctioned through the Human Rights Act of 1998. The UK Supreme Court is now effectively placed in guardianship of the UK’s unwritten constitution and separation of powers. Also, a tacit system of checks and balances among the executive, legislature and judiciary appears to be in place. In doing so, the Supreme Court rejected the call for separation of power based judicial restraint. The unanimous judgement of the eleven Supreme Court judges is quite unequivocal in claiming the alleged guardianship: “[E]very prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie” (UKSC, para 38). This position of the Supreme Court is an apparent reversal of the so-far practised rule of weighing ‘institutional and constitutional competence’[14] before adjudicating a Royal prerogative.
While the above claim that the United Kingdom has entered into an era of judicial guardianship of the constitution through this judgment is not unlikely to be contested, it would perhaps not be unsafe to conclude that the Parliament Prorogation Case represents the UK’s ‘complementary constitutionalism’ where the courts, legislature and the executive cooperate in strengthening political accountability.[15] At least, the then Speaker of the House of Commons Rt. Honourable John Bercow would have known this five days before the Supreme Court judgment was delivered.[16]
References
[1] Poole, Thomas, “Understanding what makes “Miller & Cherry” the most significant judicial statement on the constitution in over 200 years”, The Prospect Magazine, September 25, 2019; available at: https://www.prospectmagazine.co.uk/politics/understanding-what-makes-miller-2-the-most-significant-judicial-statement-on-the-constitution-in-over-200-years (Last Accessed on September 19, 2019).
[2] Ekins, Richard, “Why the Supreme Court should reverse the Scottish Court’s prorogation ruling”, The Spectator Blog, September 11, 2019; available at: https://blogs.spectator.co.uk/2019/09/why-the-supreme-court-should-reverse-the-scottish-courts-prorogation-ruling/ (Last Accessed on September 28, 2019).
[3] Norton, Philip, “A Democratic Dialogue? Parliament and Human Rights in the United Kingdom”, Asia Pacific Law Review, 21:2 (2013), pp. 141-166.
[4] Masterman, Roger, The Separation of Powers in the Contemporary Constitution, Judicial Competence and Independence in the United Kingdom, Cambridge University Press, 2013, pp. 275.
[5] Barber, Nick; Hickman, Tom and King, Jeff, “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role”, The UK Constitutional Law Association, June 27, 2016; available at: https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/ (Last Accessed on September 27, 2019); See also – Pannick QC, David, “Why giving notice of withdrawal from the EU requires act of parliament”, The Times, June 30, 2016, https://www.thetimes.co.uk/article/c8985886-3df9-11e6-a28b-4ed6c4bdada3 (Last Accessed on September 27, 2019).
[6] The European Union (Withdrawal) Act 2019, Section 1
[7] The Guardian, “Boris Johnson’s move to prorogue parliament ‘a constitutional outrage’, says Speaker”, 28 August, 2019; available at: https://www.theguardian.com/politics/2019/aug/28/boris-johnsons-move-to-prorogue-parliament-a-constitutional-outrage-says-speaker. (Last Accessed on September 26, 2019)
[8] Hans, Gursimran, “Chaos in the Commons: Mayhem as MP throws himself at Bercow to protest prorogation”, The Express, September 10. 2019; available at: https://www.express.co.uk/news/politics/1175977/Brexit-news-prorogue-scuffle-Labour-Tories-Commons-John-Bercow-no-deal-eu-exit-latest (Last Accessed on September 27, 2019).
[9] The UK Supreme Court held: “[T]he Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play…… [T]he courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.”
[10] Facing a call for enforcing the Parliamentary Sovereignty, the Queen’s Bench Division shielded behind the Concept of Separation of Power: “In the first place, alongside the principle of Parliamentary Sovereignty, the separation of powers, reflecting the different constitutional areas of responsibility of the courts, the Executive and Parliament, is also a fundamental principle of our unwritten constitution. As we have said earlier, the line of separation is set by the courts in the present context by reference to whether the issue is one of “high policy” or “political” or both. In the circumstances and on the facts of the present case the decision was political for the reasons we have given.”
[11] Mance, Lord, “Justiciability”, The 40th Annual FA Mann Lecture at Middle Temple Hall, London, November 27, 2017, at p. 22; available at: https://www.supremecourt.uk/docs/speech-171127.pdf (Last Accessed on September 29, 2019).
[12] The Supreme Court held: “[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” (UKSC, para 50).
[13] Poole, Thomas, Op cit.
[14] Mance, Lord, Op cit.
[15] Taylor, Robert Brett, “The prorogation ruling has strengthened the political accountability of those in power”, The Brexit Blog, LSE, London; available at: https://blogs.lse.ac.uk/brexit/2019/09/26/the-prorogation-ruling-has-strengthened-the-political-accountability-of-those-in-power/ (Last Accessed on September 29, 2019).
[16] Speaker John Bercow endorsed the Supreme Court’s involvement in the process as a desirable alternative for addressing constitutional gridlocks like this while answering to a question during his lecture at the Harvard Kennedy School’s Institute of Politics on 19 September 2019. See – from 0h33m55s to 0h35m04s of “A Public Speech by The Rt Honourable John Bercow”, Harvard Kennedy School’s Institute of Politics, September 19, 2019. Available at:
https://www.youtube.com/watch?v=YIQHsCxlFYY&list=PLN7pt7TRcJOXqFe8uqEI59athzJ-oBeit&index=35 (Last Accessed on September 29, 2019).
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