The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Millercase ([2019] UKSC 41) reached its zenith on Tuesday morning, with a most newsworthy outcome; a unanimous decision that Prime Minister Johnson's Prorogation of Parliament was unlawful, thus a legal nullity and of no legal effect (at para. 69 of the judgment). The UK Parliament, having been put illegally to sleep, awoke on Wednesday morning with collective amnesia, and emerged refreshed from a dreich shower like Bobby Ewing, to get back to work and to normality.

The timing of the judgment couldn’t have been more fortuitous for purveyors of constitutional law idioms, anecdotes and folklore - thousands of law freshers at dozens of university law schools across the four nations of the UK will be treated to a plethora of twitter feeds, bad puns and embarrassing GIFs of politicians by law lecturers trying to make sense of it all, all of them feeling a bit smug and secretly delighted that constitutional law is at last hip, happening and dare say, even sexy.

As I have discussed previously, (here, hereand here) the Scottish courts and the English High Court received applications from aggrieved members of the public, legal experts and politicians, extremely worried about Prime Minister Johnson's received wisdom to prorogue Parliament for 5 weeks through September and October 2019, at a time of immense constitutional upheaval and crisis, given the impending deadline of Halloween and the horror of a No-Deal Brexit. At first instance in Scotland, the petitioners in Cherry lost, Lord Doherty in the Outer House of the Court of Session deferring to the Prime Minister and the UK government's lawyer in Scotland view that the matter of prorogation was a matter of high politics, not law and thus beyond the purview of the courts. Similar sentiments furth of the Forth, led the English High Court, unanimously, to hold that Gina Miller's Judicial Review application was also asking an impertinent, essentially non-justiciable question.

Legal orthodoxy seemed to point to these claims being closed down on this well-established maxim of non-justiciability. Case(s) closed.

On appeal in Scotland to the Inner House of the Court of Session, the triumvirate of Lord Carloway, Brodie and Drummond-Young, (now colloquially known in legal circles as the Inner House 3) unanimously overturned the opinion of Lord Doherty in the lower Outer House. The egregious nature of the Prime Minister's decision meant that the matter was justiciable. It was a legal question: The questioning of an improper use of the royal prerogative.

The Supreme Court has largely vindicated the view of the Inner House 3, albeit with some differences of opinion (see Professor Mark Elliot's blog here). The Supreme Court, in a very rare show of absolute solidarity, made all the more amazing by the fact that the decision was made by an 11-strong bench, decided unanimously that the Prime Minister had acted unlawfully in advising the monarch to prorogue Parliament.

It is fair to say that the judgment, like Brexit itself (although the case is only indirectly concerned with Brexit), has divided the legal community, the general population and the politicians. It has polarised opinion like no other case before it.

At any level, the judgment is a remarkable one. However, its remarkableness is difficult to define and pin down, however the main reasons the opinion is remarkable are as follows.

First, as mentioned already, the judgment was a unanimous decision by 11 of the most eminent justices this country has produced. In the only other 11-strong bench case, the related case of Miller 1 ([2017] UKSC 5), the best the judges could agree on was an 8-3 split, with the dissenters even divided on their reasons for dissenting. In the Torture Evidence case (A (FC) v Secretary of State for the Home Department ([2005] UKHL 71), a seven strong bench of the House of Lords came close to being unanimous on all aspects of that case. The ability of Lady Hale to get another 10 strong willed, independent jurists to coalesce around a particular view of the facts and of the law is indeed remarkable.

Second, the judgment is a document of elegance, clarity and brevity, with a distinctly narrative feel. For such a constitutionally significant case, the text is remarkably light in size and in deployment of weighty legal justifications. The judgment is only 24 pages long and constitutional law academics, if marking this legal script, would berate the authors for only using the bare bones of the vast corpus of judicial precedent that was available. The Inner House 3 and the advocates before that house (and when in the Supreme Court), conversely, drew on a vast well of legal authorities to justify their stance. That judgment extended to 68 pages and was replete with judicial and historical precedents. The Supreme Court was content to produce a narrative judgment, drawing on grand constitutional principles and expectations.

The question beget by this brief, elegant and decidedly law-free judgment is why is it structured so?

The answers are not hard to discern and determinedly lie in the political sphere.

The Supreme Court, almost contemporaneously with the Cherry/Millercase, will celebrate its 10th anniversary in the next few weeks. It began life on the 1st of October 2009. It is fitting that the Supreme Court made such a historic judgment on the eve of its 10 year anniversary, for the judgment is a fine example of the court flexing its constitutional muscles. The Supreme Court is transforming itself into a Constitutional Court and with the Cherry/Miller case, the court has burnished its constitutional court credentials.

A defining feature of any constitutional court is that it decides decidedly political cases that deal with high politics and the inner workings of the constitution of that state. To that extent, the Supreme Court of the United Kingdom, absolutely performed a constitutional court function on Tuesday morning.

The judgment had to have the look and feel that it did for a number of important political reasons.

The judgment had to be unanimous because in this febrile environment, any dissent in the Supreme Court would be seized upon by Brexiteers and detractors that the decision was legally uncertain, incorrect and the will of arch Remainers. Thus, the justices were determined to present a united front that sent a powerful message that the highest members of the judiciary were at one on this matter, irrespective of their political views, of their particular areas of legal expertise and their longevity on the highest court of the land. The judges chose to put forward a coherent, decisive legal view to try and provide legal certainty for the whole country.

Further, these two cases that were sent to the Supreme Court posed an existential threat to the United Kingdom. The Scottish Court had unanimously held that the matter was justiciable and that on forensic investigation, the Prime Minister had acted unlawfully. Diametrically opposed to that, the English High Court refused to adjudicate on the matter, citing classic cases on non-justiciability. Scotland overwhelmingly voted to Remain in the 2016 referendum and England narrowly voted to Leave. These facts would have played heavily on the minds of the 11 justices. To simply dismiss the Inner House unanimous decision, expressly overrule that decision and affirm the English High Court view would be to imperil the unity of the United Kingdom. In such a situation, Scottish politicians, jurists and the general Scots populace writ large would arguably be more empowered and more likely to question their place in the United Kingdom. Remarkably, the Supreme Court drew heavily on the original view of the Inner House 3, simply stating that the advice of Boris Johnson to the Queen to prorogue Parliament…' was unlawful, null and of no effect and should be quashed.' (para. 69 of the judgment). Implicitly, the UK Supreme Court was simply endorsing the view of the Inner House and adopting the extensive legal declaratory power and jurisdiction of the Supreme Court of Scotland. The judgment, in so doing, managed to cleverly bring the UK jurisdictions closer together, neatly avoiding legally complex and technical questions on the nature of remedies north and south of the border.

The narrative nature of the judgment was also remarkable but entirely reasonable given the unique background to the case. The three day legal hearing from last week was eagerly watched by people across the globe and the judgment has been downloaded thousands of times and it made global news headlines. It was obvious that people were immensely interested in the case, and as such the justices would have been keen to make the law as accessible as possible, and the most obvious way to do so would be to demystify the law and use everyday, ordinary language. Alongside this imperative, the immense pressure to resolve the case quickly meant that the justices were under great time constraints, resulting in a pared down judgment that merely discussed the nub of the arguments. Further, the fact that the judgment would be desired to be read way beyond Westminster, Whitehall and the Windsor family, necessitated the rejection of excessive legalese and obscure references to historical events and laws.  The judgment is a masterful, accessible constitutional lecture on the grand overarching themes, laws, rules and conventions that constitute the living UK constitution.

The judgment has its detractors from all sides. It is too simplistic. It is too political. It is too lite on the law. It is too glib. It is interfering in politics. All of these criticisms can be legitimately levelled at the judgment. The strongest criticism is that of interference in politics. However, the judgment can be defended exactly on that basis. Parliamentary sovereignty was placed at the apex of the judgment. Alongside parliamentary sovereignty, the court was concerned to place parliamentary accountability at its side, an equal partner in the UK constitutional framework. In so doing, the court thus justified its interference in questions of politics. The current political impasse has illustrated the ineffectiveness of the parliamentary accountability process in holding the Prime Minister and the wider executive to account. Therefore, for the court to simply defer to parliamentary accountability would be a dereliction of duty, particularly in a situation where it is clear that these political mechanisms, both currently and in the near future, would manifestly fail to produce a satisfactory resolution. The court was thereby forced to act to restore equilibrium to the tripartite separation of powers, the central tenet of the UK constitution. In so doing, the court also gave powerful effect to a central tenet of the Leave campaign from 2016: the Supreme Court of the UK took back control and gave Parliament back its sovereignty.

Barnard & Peers: chapter 27

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Continue reading The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Prorogation of Parliament: Conflicting judgments in England and Scotland

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The A-Z of Scots Law: From Avizandum to the Zany Antics of Boris Johnson

The recent, zany antics of Prime Minister Boris Johnson are being subject to intense interrogation by the Scottish legal system. The case of Cherryhas seen the decision to prorogue the UK Parliament declared unlawful and the Prime Minister’s reported defianceto refuse to comply with the specific terms of the European Union (Withdrawal) (No.2) Act2019 will be litigated upon in the Scottish courts next week. This new statute is designed to avoid a No-Deal Brexit on Halloween. It requires the Prime Minister to send a letter to the European Council requesting an extension to the Article 50 TEU negotiating period by the 19th of October 2019 if there is no deal in place (or no vote by parliament approving a no deal outcome) between the UK and EU by that date. 

These developments have exposed non-Scots lawyers and the general public in the UK to a whole new lexicon. In the Cherry case, they were treated to the terms ‘Avizandum’ and ‘stymie’ and in the prospective case forcing Boris Johnson to comply with the 2019 law, the general populace encountered the Latin term ‘nobile officium’.

The term ‘Avizandum’ is a Scots law term of art indicating that the court will take time to consider its judgment and deliver its reasoning at a later date. The word ‘stymie’ has been used in the case of Cherry to refer to the fact that proroguing Parliament will frustrate Parliament’s ability to scrutinise the work of the Executive while it is suspended. The etymology of ‘stymie’ is Scottish and refers to someone who can’t see very well and it was adopted as a golfing term to refer to a ball that prevents their opponent from having a clear shot at the hole. Thus, it is an apposite term for the actions of a Prime Minister attempting to deflect Parliament’s attention away from a No-Deal Brexit.

The ‘nobile officium’ is an ancient power of the supreme court of Scotland (the Court of Session) to offer an equitable remedy for pursuers when there is a perceived deficiency in the law.

This blog will discuss the significance of the unanimous decision of the Scottish judges in Cherry to declare the Prime Minister’s prorogation of Parliament unlawful, compare and contrast this with the English High Court’s decision to refuse to rule on the matter in Miller 2 and the potential ramifications of these cases for the Supreme Court hearing on Tuesday the 17th of September 2019. (For an overview of the prorogation case law with links, see here).

The original Cherrycase (discussed here) was the first legal test of Boris Johnson’s decision to prorogue Parliament. At first instance, Lord Doherty roundly rejected the petitioner's pleas, holding that the decision to prorogue was an exercise of prerogative power (ie non-statutory) by the executive (the Government) that was non-justiciable (ie not amenable to review by a court), since it involved matters of high policy and political judgment. Thus, such matters were best left to be resolved in the political arena, primarily by the Prime Minister being held accountable for his actions by his equals in Parliament and subsequently by the electorate at the ballot box.

South of the border, Gina Miller, Shami Chakrabarti and Sir John Major instigated a similar claimagainst prorogation in the English High Court. At this level, both courts were at one on this point: the decision of the Prime Minister to prorogue was a classic exercise of prerogative power that was non-justiciable, since it involved matters of high policy and political judgment (see the Miller justifications at paras. 38, 42 and 60, the dicta of Lord Doherty in Cherry 1 at paras. 25 and 26 and the Scottish case law of MacCormcick v Lord Advocate 1953 SC 390, Gibson v Lord Advocate 1975 SC 136 and Lord Gray’s Motion 2000 SC (HL) 46). In their view, there were no legal standards from which to judge the legitimacy of the decision to prorogue (para. 51). The justifications for such an approach are plentiful and eminent. The long line of judicial precedent confirming such an approach stretch from de Freitas v Benny ([1976] AC 239), R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1975] 1 QB 811 the GCHQ case through to A v Secretary of State for the Home Department [2005] 1 AC 68 (aka the Belmarsh case) and the case of Shergill v Khaira [2014] UKSC 33.  In the Belmarsh case, Lord Bingham famously declared that:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.”

Further, as I discussed last week, the dissenting judges in Miller 1offered a stark warning to judges willing to embark on evaluations of matters involving high policy. Lord Reed expressed the view that:

“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 English High Court heeded such warnings and tersely stated in the first paragraph of its judgmentin Miller 2 that:

“It is not a matter for the courts.”

The non-justiciability argument appeared to have won the day north and south of the border. And further, to the west, beyond the Irish Sea, the High Court of Northern Ireland in Belfast decided not to rule on the prorogation issue at all, in a case brought by Raymond McCord.

Further, the English High Court also considered at the same time that, even if the contested order to prorogue had been reviewable, a number of legitimate and plausible reasons had been put forward by the Prime Minister that supplied sufficient reasoning for the prorogation (para. 51). Primarily, it is entirely normal and expected that a new Prime Minister would desire a Queen’s Speech in order to give legal effect to their policy priorities. Further, in the present instance, even with prorogation, there would still be time to debate and scrutinise Britain’s withdrawal from the EU; there would already be reduced Parliamentary time to scrutinize, given that the prorogation would fall in the middle of the traditional  party conference season when Parliament is recessed; and finally, the previous Parliamentary session had been one of the longest in living memory.

In the face of such insurmountable odds, it appeared that all was lost for the Remain Alliance. The activities of the Prime Minister were beyond legal reproach, even if not beyond political or ethical reproach. And yet...

The original decision of Lord Doherty in the Outer House of the Court of Session in Scotland was immediately appealed against. On Wednesday the 11th of September 2019, the three judges of the Inner House dropped their bombshell unanimous decision – the decision of the Prime Minister to prorogue Parliament was justiciable and upon subsequent forensic examination it had been found wanting.

The Scottish judges did not hold back, using rather forceful language to condemn the events laid before them. Lord Brodie found that the decision to prorogue was an ‘egregious case’ of improper behaviour (para. 91) falling well below the generally accepted standards of behaviour expected of public authorities and figures.

At first glance, the remarkable decision of the Scottish Supreme Court flies in the face of received legal orthodoxy. Proroguing Parliament is a classically political act, thus protected from legal challenge. So how do lawyers, north and south, square this circle?

The answer comes down to one of approach and the classification of the question that came before the courts in the three jurisdictions of the UK. As I discussed earlier, the question of the justiciability of royal prerogative powers is no longer a binary one, ever since the GCHQ case. Now, the test for justiciability rests on the nature of the prerogative power in question. The more legalistic in nature the power is, the easier it is for the courts to assume jurisdiction. Conversely, the more political or non-legal the power, the harder it is for the court to assume jurisdiction over that decision-making power. However, this sliding scale argument just outlined, does not help much in explaining the diametrically opposed judgments north and south of the border. Indeed, on this view, the English and Scottish courts should have been at one.

Legal clarification to this confusing situation may come, ironically some may say, from eminent Sassenach(used here in a non-pejorative sense) legal jurists, Professor Paul Craig and Professor Mark Elliott. Both Professor Craig and Elliott have cogently and eruditely explained the constitutional dilemmas borne out of Boris Johnson’s premiership. From their perspective, for the courts to absolve themselves from adjudicating upon a matter of such momentous proportions would be a gross dereliction of judicial duty (See Professor Craig’s view on this in his blog Prorogation: Three Assumptions of the 9th of September). The dangers to the UK constitution posed by the behaviour of Boris Johnson both necessitate and justify judicial involvement. This situation is such a singular affront to the democratic principles of the UK’s unwritten constitution that a judicial response is both right and necessary (See Professor Craig’s blog Prorogation: Constitutional Principle and Law, Fact and Causation, of the 31st of August).

To provide for no legal redress in this pivotal moment would create a legal vacuum and indirectly give succour and implicit legitimation to the decision of the Prime Minister (see the discussion of these matters by Alan Greene in his blog Miller 2, Non-justiciability and the Danger of Legal Black Holes, available here). For Professor Elliott, the sweeping, blanket refusal of the English High Court to entertain any possible review of the decision to prorogue is legally suspect on two main grounds. First, because the refusal to adjudicate goes against the liberalising tendency of the extant judicial precedence on non-justiciability, which is incrementally lessening the scope and reach of the non-justiciability barrier and, secondly, and in my opinion more forcefully, the judgment in Miller 2 misconstrued the legal question before it (see Professor Elliott’s blog Prorogation and justiciability: Some thoughts ahead of the Cherry/Miller (No. 2) case, available here).

Thus, the argument for intervention can be justified by looking at the questions before the UK courts from a slightly different perspective. The argument runs that the English High Court focussed, incorrectly, on the evaluation of the exercise of the discretionary power to prorogue. From this perspective, the English High Court fixated on the practical aspects of the decision to prorogue, asking itself questions about the justifications offered for the prorogation and the reasonableness of the length of time of the prorogation.  Therefore, the purpose of the judicial review appears to be one of substitution, that is the court is putting itself in the shoes of the Prime Minister and declaring whether it is reasonable for the Prime Minister to have asked for such a long period of prorogation. If that is so, then traditional legal orthodoxy kicks in: courts are not there to be a substitute for a bad decision maker, particularly when that decision is not made according to legal principles or considerations but rather, is a decision based on pure politics. Such decisions, rightly, cannot and should not be subject to supervision and substitution by the courts. The Inner House of the Court of Session chose another path for adjudication.

The Inner House, having reviewed the legal authorities, considered that the prerogative power to prorogue Parliament was justiciable (para. 31). The Court of Session approached the question from first principles of the UK constitution. The Court of Session asked a different question to that of the English High Court, namely does the legal power exist and if so, what are its boundaries? Questions about the scope of legal powers are classic judicial review questions that need resolution. Indeed, the fundamental grundnorm of the UK unwritten constitution is observance of the rule of law.

Lord Drummond Young, at para. 102, summed up this fundamental truth concisely when he said:

“The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised.”

In applying this principle to the present case, the Scottish court was being asked if the exercise of the prerogative power to prorogue Parliament was being used for a purpose that was objectively outwith its scope (para. 104). This question could be answered by the Scottish court since the UK case-law evidenced a great deal of judicial flexibility in responding to these types of questions (see the case of Pham v Home Secretary [2015] 1 WLR 1591). In answer to this question, given the voluminous redacted information submitted to the court by Her Majesty’s Government, the answer must be yes: the Prime Minister had prorogued Parliament for an improper purpose, namely to stymie Parliamentary debate, oversight and scrutiny of the UK’s withdrawal from the European Union.

Regardless of their view on the justiciability and merits or otherwise of the case, the seriousness of the case, according to the Scottish judges, absolutely required a robust judicial response in any case. The actions of the Prime Minister had been an egregious case where there had been a clear failure to comply with generally accepted standards of behaviour of a public authority (see para. 91). The exceptional seriousness of the case would require the court to act.

It can be argued that the Scottish judges were not engaged in usurping power from Parliament. On the contrary, the Scottish judges, rather than emasculating Parliament, were, by delivering judgment, empowering Parliament.

The finding of the Inner House means that the decision to prorogue Parliament was illegal and as such the Order in Council is of no legal effect, that is the decision is void ab initio. However, given the constitutional significance of the case and its brethren cases in Belfast and London, the Lord President declined to enforce the judgment at once, given that all these judgments were the subject of an appeal to the Supreme Court of the UK. If the Supreme Court were to ultimately follow the dicta of the Inner House, then the judgment in Cherry 2 would be fully enforced and applied at that date.

The outcome of the conjoined appeals at the Supreme Court of the UK on Tuesday the 17th of September is far from certain. The Scottish judgment is a constitutional first: the first time a serving Prime Minister has been found guilty of acting illegally in relation to the proroguing of Parliament.

What is certain is that the 11 justices of the Supreme Court will once again make UK constitutional history after the hearing on Tuesday week.

Barnard & Peers: chapter 27

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Continue reading Prorogation of Parliament: Conflicting judgments in England and Scotland

Who takes back control? Parliamentary prorogation in the courts

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

Lord Doherty, gave his eagerly anticipated judgment on Wednesday morning in the Outer House of the Court of Session. The judgment in Cherry [2019] CSOH 70 was a legal blow for the 79 petitioners and the wider Remain Alliance. Lord Doherty had been asked by the petitioners to rule on the legality or otherwise of Prime Minister Johnson's advice to the Queen to Prorogue Parliament sometime between the 9th and 12th of September. Lord Doherty roundly rejected the petitioner's pleas, holding that the decision to prorogue was an exercise of prerogative power that was non-justiciable, since it involved matters of high policy and political judgment.

It is supremely ironic that the Scottish court, at the heart of Remain Scotland, delivered a conservative judgment, albeit with a small c. However, the judgment was not altogether unsurprising. As I have argued previously, the main obstacle for the petitioners was the justiciability question (ie whether the issue should be decided by courts, or left to politics) and this is where the case fell. Lord Doherty inclined towards the traditional dichotomy between prerogative powers that are reviewable and those which are not ((R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697, de Freitas v Benny [1976] AC 239 and the dicta of Lord Roskill in Council of the Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case)).  

Famously, Lord Roskill in the GCHQ case observed, obiter dicta, that certain executive powers were not amenable to judicial review. For the present case, the main executive power excluded from judicial review is the power to dissolve Parliament. Thus, according to Lord Doherty's view, decisions of a Prime Minister, or the wider Privy Council, to advise the Queen to prorogue Parliament are matters of high policy and involve highly politically sensitive assessments, decision making which is generally beyond the purview of the courts.

However, notwithstanding the terse rejection of their claim, the petitioners have indicated their intention to appeal. At first light, this may appear like clutching at straws, however, it is at least arguable that the original decision could be reversed. In these topsy-turvy times of Brexit, anything is indeed possible and perseverance has served the Good Law Project well during Brexit - the Wightman case (discussed here) was seen by some as a hopeless case without merit and yet they were fully vindicated at the European Court of Justice. In a similar vein, the Miller (No 1) case (Miller v S. of S. for Exiting the EU [2017] UKSC 5]) also confounded some experts with its surprising inroads into the exercise of royal prerogative.

For the petitioners, the need for prerogative powers to be subject to oversight, be it legislative or judicial, is absolutely fundamental to the proper functioning of the modern United Kingdom, a state governed by an overriding adherence to the rule of law (Teh Cheng Poh v Public Prosecutor [1980] AC 458, per Lord Diplock at p 473, as discussed by Lord Doherty at para. 6).

This is invariably true and the UK courts are understandably somewhat wary of the royal prerogative as a 'relic of a past age' (as per Lord Reid in Burmah Oil).  As such, as I have argued in a previous blog...'the royal prerogative is a diminishing executive power, subject to ever more control and supervision by the legislative wing of the state. The status quo pertaining to the exercise of the royal prerogative is under attack on two fronts: replacement of the amorphous executive power with a statutorily defined, controlled and exercised power and judicial and democratic supervision of the remaining executive powers of prerogative.'

Nevertheless, it would be a mistake to simply assume that the judges' wariness of the exercise of prerogative power and its potential to be abused will translate, further up the court hierarchies in Scotland the rest of the UK, to a willingness to intervene in such affairs. Rather, Joanna Cherry, the other 78 petitioners and the Remain Alliance may face an uphill battle in reversing the traditional view of the royal prerogative espoused by Lord Doherty.

The GCHQ case was a watershed case, carving out exemptions to the absolutist view that any use of the royal prerogative was beyond the purview of the courts ((R (Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs[2016] UKSC 35) as discussed here. However, the common law develops incrementally and carefully and it is still the case in the second decade of the 21st Century that the UK courts show a great deal of deference to the UK Executive and its prerogative powers. This judicial reasoning is not hard to fathom. Prerogative powers are the engine of Parliamentary democracy in the UK, even if they are anachronistic and diminishing in scope and number and as such they are still given a surprising degree of deference by the judiciary.

For example, in Shergill v Khaira [2014] UKSC 33, the UK Supreme Court opined that the courts would decline to interfere with prerogative powers in the domestic plane when the issues relate to the separation of powers and executive powers. Lord Reed, one of the dissenters in the Millercase, has some pronouncements that may provide a foretaste of the challenges that face the petitioners in Cherry.

For example, Lord Reed made much of the extant political accountability mechanisms that are integral to the UK constitution. He stated, at para. 240 of Miller, that the 'controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character'. He went on to warn that:

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.

His reason for judges exercising caution in this area is the well-established principles of Executive accountability to Parliament and Parliament's sovereignty, which includes Parliament's power to govern itself, free of outside influence and interference. Indeed, he stated, at p. 249

It is wrong to see this as a simple choice between Parliamentary sovereignty, exercised through legislation, and the “untrammelled” exercise of the prerogative by the Executive. Parliamentary sovereignty does not begin or end with the Tin Council principles. No less fundamental to our constitution is the principle of Parliamentary accountability. The Executive is accountable to Parliament for its exercise of the prerogative, including its actions in international law. That account is made through ordinary Parliamentary procedures. Subject to any specific statutory restrictions (such as under the Constitutional Reform and Governance Act 2010), they are a matter for Parliament alone. The courts may not inquire into the methods by which Parliament exercises control over the Executive, nor their adequacy."

Further, Lord Reed then quoted Lord Mustill's view of the separation of powers doctrine. Lord Mustill's view is that:

It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, not only to verify that the powers asserted accord with the substantive law created by Parliament, but also, that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended. Concurrently with this judicial function Parliament has its own special means of ensuring that the executive, in the exercise of delegated functions, performs in a way which Parliament finds appropriate. Ideally, it is these latter methods which should be used to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to govern the country …

These views accord closely with those of Lord Doherty. His view was that political not legal accountability is the proper approach and remedy for any alleged wrongdoing of Prime Minister Johnson in advising the Queen to prorogue Parliament. On such a view, Boris Johnson will be, in due course, held accountable by his Parliamentary colleagues and by the electorate at the ballot box.

In a perverse way, the fact that the case failed may help the petitioners in their bid to stop a No-Deal Brexit. The longer Boris Johnson continues with his No-Deal plan, the more he will face political and reputational consequences of his actions. The court case had one serious political consequence - the release of documentation undermining the Prime Minister's assertions as to when the decision to prorogue Parliament had been taken. This factor, more than the arcane legal arguments over the justiciability or otherwise of exercises in Royal Prerogative, may seal the fate of Boris Johnson.

The reluctance of judges to interfere with executive power is a high barrier to a successful outcome for the petitioners in Cherry. However, on appeal, the Inner House of the Court of Session might be convinced to go against the dissenting view of Lord Reed, one of the two Scottish judges in the Miller case, however it is a big ask, but not insurmountable. Alongside the ongoing Cherry case, south of the Scottish border, Gina Miller and and Sir John Major will have their day in court this week as well. They have engaged Lord Pannick QC to also seek a judicial review of the decision to prorogue in the English High Court, starting on Thursday the 6th of September. A day later, over in Belfast, Raymond Mccord, will start his actionagainst prorogation, alleging that imposing a No-Deal Brexit on Northern Ireland will breach the Good Friday Agreement.

These three cases illustrate the strength of feeling against Boris Johnson's plans to prorogue Parliament and ensure a No-Deal Brexit. However, given his political defeats in the Commons this week, which mean laws attempting to stop No-Deal Brexit can progress through Parliament and an imminent general election looks to be ebbing away, the political arena seems to be a more fruitful area for challenging the Prime Minister than through the courts of the three jurisdictions of the UK. 

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Barnard & Peers: chapter 27 

Continue reading Who takes back control? Parliamentary prorogation in the courts

The Remain Alliance Strikes Back? Background to the legal challenge to the prorogation of Parliament

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

(Update: since this blog post was published, Parliament has been prorogued. The blog post explains the background to the Scottish challenge to prorogation, but this first para will be regularly updated as regards this and other legal challenges to prorogation. August 30: a request for interim measures in the Scottish challenge (Cherry and others) was dismissed (although the ruling did not determine the merits of the case). A hearing in this case will be held Tuesday Sept 3rd. In addition, a hearing will be held before Friday Sept 6th in a Northern Ireland case brought by Raymond McCord. A hearing will be held Thurs Sept 5th in a case brought by Gina Miller. John Major has requested to be added as an intervener to this case. August 31: for documentation on the Cherry case, see the Good Law Project blog. September 2: the note of argument for the Cherry case. The Welsh government has intervened in the Miller case. September 4: the Cherry case was unsuccessful at first instance. An appeal has been requested. September 6: the Miller case was unsuccessful at first instance. See the skeleton arguments of Miller and the government.) September 7th: the appeal in the Cherry case was heard on the 5th and 6th September. The judgment will be delivered on Sep 11th. See the summary of the appeal hearing.) September 11: the appeal judgment in the Cherry case found that prorogation was unlawful (see the summary of the judgment). The High Court judgment ruling against Miller's challenge to prorogration was published. September 12: the Scottish appeal ruling in the Cherry case was published. The McCord ruling (which deals with issues other than prorogation) was released; the challengers lost. September 16: An appeal in the McCord case was heard in the Northern Ireland Court of Appeal. The Supreme Court will hear the appeals in Cherry and Miller, with McCord intervening, from Tuesday 17th September to Thursday 19th September. The cases of some of the parties in the Supreme Court appeal are available.)

In 2018, Scots law was thrust four square into the legal maelstrom that is Brexit. The Court of Session in Edinburgh, and latterly the European Court of Justice, were the scene of intense legal wrangling over the intricacies of the UK's departure from the EU. The Wightmancase (discussed here), ultimately resolved that Article 50 TEU, the lex specialis for a member State of the European Union to extricate itself from the EU, was unilaterally revocable at the suit of the withdrawing member State. Contemporaneously, the UK's Supreme Court also had to grapple with the Scots law and rest of the UK legal implications of the UK's exit from the EU in the snappily titled case of The UK Withdrawal From the European Union (Legal Continuity) (Scotland) Bill -  A Reference by the Attorney General and the Advocate General for Scotland ([2018] UKSC 64)(discussed here).

The first half of 2019 was a more sedate legal period, with limited Scots law pronouncements on Brexit. The second half of 2019 looks set to be as entertaining as the latter half of 2018. Now that Boris Johnson is fully ensconced in Number 10 Downing Street as the UK's Prime Minister, the likelihood of a No-Deal Brexit appears a near certainty, particularly with the installation of the Brexit clock in No. 10 and hard-line pronouncements emanating from the No. 10 Press Office. 

For Remainers, the coronation of Boris Johnson is of grave concern. The primary reason for their nervousness is the limited time left available to arrange for a managed exit of the UK from the EU. The economic impact of No-Deal Brexit may be extreme. The Office for Budget Responsibility considersa No-Deal Brexit at Halloween to be economically catastrophic, with a forecasted resultant 2% reduction in the economy, a 5% rise in unemployment and a 10% drop in house prices by 2020. Thus, the Remain Alliance is looking to prevent No-Deal Brexit at all costs.

As things stand, the UK will leave the EU, 'come what may', on Halloween, by automatic operation of both UK law(European Union (Withdrawal) Act 2018) and EU law (Article 50(3) TEU). The only way to avoid a No-Deal Brexit is to arrange for Theresa May's Withdrawal Agreement to be approved by both the UK and EU Parliaments, for the UK to seek, and the EU-27 to agree, to a further extension of the Article 50 TEU process or to unilaterally revoke the Article 50 TEU notification, as confirmed by the ECJ in Wightman. An extension of the time period available under the Article 50 TEU process, could then be used to hold a Second Referendum on UK membership of the EU (which Remainers would hope would reverse the original slim majority to leave), to hold a General Election, which would (hopefully for the Remainers but by no means certain) return enough MPs to Parliament who would definitively want to hold a second referendum, revoke Article 50 TEU or seek a managed softer Brexit with the EU. In a similar vein, Remainers hope that a vote of no confidence under the Fixed Term Parliaments Act2011 would allow a unity government to be installed, appointed to ensure at the least, a softer Brexit with an agreement in place between the UK and the EU.

The one thing that unites all these various permutations is that they would all take time to achieve. The UK Parliament is in recess until the Autumn. Once Parliament returns on the 3rd of September 2019, there are only 10 days until the Conference Season startswith the Lib Dems Conference in Bournemouth, and then Parliament is again suspended.

Prime Minister Johnson, buoyed by positive affirmation from various ERG members, is seriously contemplating proroguingParliament as a mechanism to ensure that the UK exits the European Union, come what may, on Halloween. Under this scenario, Parliament could be prorogued, meaning that virtually all Parliamentary business ceases, in mid-October just before the Brexit Doomsday clock counts down to zero. Thus, Parliament would be unable to make any Brexit pronouncements or laws until the State Opening of a new Parliament, perhaps on the 1st of November 2019.

This stance is legally uncertain, hence the need for legal clarification, clarification which can be provided by the eminent Senators of the College of Justice of the Court of Session, in Edinburgh.

Thus, the complexities and intricacies of Brexit have led to yet another Scots law conundrum.

The legal team behind the successful Wightman case, have been called back into service. A large cross-party group of MPs and Peers have joined forces to seek a declaratorfrom the Court of Session that proroguing Parliament to simply ensure that Parliament cannot sit, and thus deliberate and enact laws concerning Brexit, would be unlawful.

The legal action is an attempt to delineate the exact legal contours of the scope of the UK Prime Minister's executive prerogative power to prorogue Parliament.

Proroguing Parliament is a well-established feature of the UK constitutional landscape. In the annals of history, proroguing of Parliament, for reasons other than the ending of a session of Parliament or for the holding of a General Election, has taken place only sporadically and in response to various affronts against democracy and constitutional norms.  The choice of Scotland and Scots law for another legal determination is by design, not by accident. First, the most practical reason for electing to go to the Court of Session in Edinburgh, is that that court is in sessionthroughout the summer, in contrast to the position of the courts south of the Border, which are now past the Trinity term, the final term of the judicial calendar. Indeed, the English courts are not due to be back in session before the 1st of October 2019, at Michaelmas.

Lord Doherty, sitting in the Outer House of the Court of Session on Tuesday the 13th of August 2019, has agreed to hear the substantive case on the 6th of September 2019.

Secondly, the Scottish courts may generally be more receptive to the claims pronounced by the pursuers. The system of judicial review furth of the Forth is rather different to that of England. In particular, the judicial review procedure in Scotland is often less formalistic than its English counterpart. Indeed, judicial review in Scotland is often quoted as being generally available as of right (Eba v Advocate General for Scotland (2010 [CSIH] 78)) rather than as a discretionary option in the gift of the English court. However, given this significant legal distinction and the obvious danger of the floodgates argument, Scottish rules as to standing were traditionally rather restrictive, with the pursuer needing to prove both title and interest to sue. Such rules thus limited access to the courts (D & J Nicol v Dundee Harbour Trustees1915 SC (HL) 7 and Swanson v Manson 1907 SC 426). However, this limitation on access to justice was swept away by the Supreme Court in AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 and given statutory backing via the Courts Reform (Scotland) Act 2014, thus now making Scotland an attractive jurisdictional choice, albeit with the anglicised innovation that leave must be granted by the court.

Additionally, the procedure and remedies available to the Scottish courts under judicial review are commonly agreed to be less formalistic than those pertaining south of the border. One unique feature relied on in the current case is the remedy of declarator.  

A declaratory action is a unique Scots law action before the Scottish courts which simply seeks a declaration from the court that the pursuer has a right (or does not have a right). In the case, the pursuer is simply seeking clarification as to the legal position. As such, the type of legal questions apt for a declaratory action are multifarious (Macnaughton v Macnaughton's Trustees1953 SLT 240, at p. 244). The main bar to the Scottish courts entertaining a declaratory action is that there would be no legal consequence's flowing from the court's pronouncement (Aberdeen Development Co. v Mackie, Ramsay & Taylor 1977 SLY 177). Thus, the admissibility criterion for the action is that there is a clear, pressing need for the court's decision and that the ruling will have real consequences for the parties. For Continental lawyers, an analogy could realistically be made between this Scottish action and the Article 267 TFEU Preliminary Ruling Procedure, whereby the European Court of Justice will refuse to determine questions of EU law unless the dispute is a real and genuine one between the parties (Foglia v Novello; Wightman). 

The remedy of declarator is a routine request in judicial review cases north of the border.

The present action will seek a declarator that it would be ultra vires for any Minister of the Crown to seek to advise Her Majesty to prorogue Parliament just before the intended date of departure of the UK from the EU, with the sole purpose of ensuring that there is no Parliamentary consideration of No-Deal Brexit. The argument that such an action by Prime Minister Johnson or members of his cabinet would be ultra vires rests on two propositions. First, that in doing so, proroguing Parliament would frustrate both the government's political accountability to Parliament and its legal accountability to the courts and secondly, that the will of Parliament, as expressed in sections 13 and 20 of the European Union (Withdrawal) Act 2018 and the desire to resurrect devolution in Northern Ireland via the passingof the Northern Ireland (Executive Formation) Bill, would be frustrated. As regards the withdrawal legislation, it is argued that the law requires that Parliament needs to approve a deal between the UK and the EU (section 13 of the 2018 Act). 

The main issue facing the pursuers in September may well be the justiciability or otherwise of the question posed. When the substantive arguments are duly aired in court, the UK Government's legal representatives will undoubtedly argue that the exercise of prorogation is a prerogative power unsuitable for judicial pronouncement, as classically set out in de Freitas v Benny [1976] AC 239. In response a number of arguments will no doubt be raised by the pursuers. First, the pursuers will argue that this traditionalist view of the non-justiciability of exercise of Crown prerogative is inappropriate, ever since the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9) created inroads to the absolutist approach to the immunity of Crown decision making (R (Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35). Indeed, the pursuers may make much of the fact that the process of prorogation is now set out in statutory terms, namely the Prorogation Act 1867, and might argue that the process has been affected by virtue of the Fixed Term Parliaments Act 2011. As such, once a prerogative power is placed on a statutory footing, or at least reference to a prerogative power is made in statute, then that power is, in principle, amenable to be judicially reviewed.

It can reasonably be argued that the prerogative power to prorogue Parliament is a two-stage process. First, the Prime Minister and members of the Privy Council provide advice to the Queen on the need to prorogue Parliament and then the Queen formally accedes to that request. It would of course be entirely within the gift of the Queen to refuse to prorogue Parliament, even where the advice of the Privy Council has been to prorogue. To do so, would of course trigger a constitutional crisis, the likes of which the UK has never witnessed for over three centuries. This is a highly remote possibility, however the former aspect of the process is much more likely.

Since prorogation is a two-stage process, it is entirely possible that the courts could hold that one, both or none of the sections of the process could be judicially reviewable. That is, the prorogation process is legally divisible.

The actions of the Queen in the process of prorogation are a classic non-justiciable example of the exercise of the Royal Prerogative. However, the real issue of concern in the present case is the first limb of the process, namely the proferring of advice by Ministers of the Crown, including the Prime Minister. That aspect of prorogation may well be capable of being judicially reviewed, and, fortuitously for the pursuers, the remedy of declarator may well be apposite for just such a claim for they are seeking in essence a simple statement from the court that the Prime Minister can (or cannot) advise the Queen to prorogue Parliament.

However, as stated above, the biggest problem for Remainers is the effluxion of time. Even if the Court of Session were to adjudicate in favour of the pursuers, the judgment may well become a Pyrrhic victory. The UK Government would invariably appeal such a judgment to the Outer House and then to the Supreme Court, freeing the Prime Minister to prorogue Parliament when he sees fit. Additionally, other political events may conspire against Remainers, such that prorogation is the least of their worries.

Barnard & Peers: chapter 27

Photo credit: BBC

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