Month: September 2019

It is evident from my blogpost last week that I could be expected to be somewhat surprised by the decision of the Supreme Court of the United Kingdom in Miller v The Prime Minister [2019] UKSC 41 (“Miller (2)”) delivered September 24.   One of my main concerns was that the Court ruling would undermine the independence of Parliament, by removing decisions that should be made by Parliament to the courts.  On considering the decision, there is much that legislatures, but not so much governments, can take comfort in. It may also put the Queen, and her representatives in a tight spot.

Unlike some previous judgements relating to prerogatives that sought to put them into categories (on which I based my earlier blog) the court here focussed on the effects that decisions made under the prerogative may have on the working of the constitution.  It is for others to comment on the appropriate scope of judicial review of prerogative decisions by examining whether a test of “effect”, rather than category, is one that should be capable of grounding a court challenge. I will focus on the parliamentary issues and the exercise of prerogatives in the parliamentary context.

In Miller (2)  it was necessary for the court to highlight the scope of parliamentary functions within the Westminster system of government, since it was the effect on these functions that concerned the courts.  To do this the court examined and gave considerable constitutional weight to two related underlying constitutional principles; parliamentary sovereignty and ministerial accountability to Parliament.

On the first principle, the court sets out a somewhat expanded but traditional view of parliamentary sovereignty.  It indicates that “Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament” .  It also includes the ability of Parliament to sit and legislate—“The sovereignty of Parliament would…be undermined as the foundational principle of our constitution if the executive could,  through the use of the prerogative, prevent Parliament from exercising its legislative authority…. An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.”

More importantly for the position of Parliament, the court raises parliamentary accountability of the government to the level of constitutional status, equivalent to, or forming part of, parliamentary sovereignty.  Attempts to thwart such accountability is constitutionally suspect.  The court expands on the principle as follows:

The same question arises in relation to a second constitutional principle, that of Parliamentary accountability, …[It is] no less fundamental to our constitution than Parliamentary sovereignty …Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.

…

Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons – and indeed to the House of Lords – for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.

The court then finds that the timing and the length of this prorogation was such as to put a constraint on Parliament’s ability to legislate and hold the government to account at a crucial point for the country, without a reasonable explanation.  Although the court claims to be neutral on the issue of Brexit, it does recognize Brexit as part of the context that demands an explanation from the government relating to the timing and effects on the ability of Parliament to carry out its functions before October 31.  Referring to the memorandum to the Prime Minister outlining the reasons for the prorogation, the court points to the failure to explain why other equally fundamental activities of Parliament needed to be fully suspended for five crucial weeks.

[The memo] does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business. It does not discuss what Parliamentary time would be needed to approve any new withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018 and enact the necessary primary and delegated legislation. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day and achieve an orderly withdrawal with or without a withdrawal agreement, which are laid down in the European Union (Withdrawal) Act 2018. Scrutiny committees in both the House of Commons and the House of Lords play a vital role in this. There is also consultation with the Scottish Parliament and the Welsh Assembly.

My fears that the courts might become entangled in the business of Parliament were somewhat put at rest when the courts placed the problem at issue here squarely at the feet of the executive. As to the argument that the prerogative was part of the parliamentary cycle or processes, the court points out that the prerogative of prorogation is not exercised for or by Parliament.  It is a government (executive) act, outside of Parliament, that affects Parliament and, in this case profoundly, against Parliament’s will.

This is a firm judgement in favour of parliamentary democracy.  The court recognizes that Parliament remains at the heart of the UK Constitution, and that its functions are myriad.  They include both legislating and the holding of the government to account.  Both are fundamental and constitutional. Any attempt by the executive to shut down these functions at critical times, when Parliament is challenging the government, will require believable explanations by the government for it not facing Parliament.

This decision is a welcome check on those who are of the view that Parliament is an irritant or a speed bump on the road to implementing government programs, and that the role of Parliament is limited to legislating.  The court reminds us that our democratic institutions are not mere legislators, but they are a valuable part of the accountability framework.  Attempts by government to use their authority to stifle such accountability is illegitimate, and in the extreme, unconstitutional and illegal.

Although the decision supports parliamentary institutions and reminds us of the constitutional balance between the government and Parliament, it does leave some questions to be resolved.  Most importantly– what is the Queen, (or her representative) to do when faced with a request of the sort that was made in this case?  Have the courts empowered, and does it expect, the Queen (or the Governor General), to make the necessary “reasonableness” determination when faced with a prorogation request? Other prerogative requests? Or, does the regal actor just follow the advice and let the courts sort it out?  Should they push back and test the advice?  Whose decision would the courts then be reviewing?

These questions may need to be answered sooner rather than later.  One only has to remember the questions raised in Canada when former Prime Minister Harper sought and received prorogation to avoid a vote of confidence and a potential change of government.

As Canada faces an election in which the polls show the possibility of a minority Parliament, we should all be mindful of the fact that we are electing members of Parliament.  We are not electing a Prime Minister.  That is a confidence matter for the House of Commons.  Elections do not merely elect those who will govern, but those who will hold any resulting government to account.  Those charged with calling on and forming a government may need to take particular care to remember the entire constitutional framework and that attempts to thwart the will of Parliament through prorogation or other uses of “prerogative” powers, such a dissolution (which is not legislated in Canada) may not only face political consequences, but legal ones as well.

As one commentator on the BBC noted this morning; what was until now a issue to be resolved between two constitutional entities (the government and Parliament) may now have two new partners—the courts and the Queen.

 

This past week, courts from across the UK weighed in on whether they should weigh in on the purported “illegality” of the recent prorogation of the UK Parliament. The English Court said no (Miller et al v The Prime Minister [2019] EWHC 2381); the Scottish Court said yes (Cherry et al v The Advocate General [2019] CSIH 49); and the court in Northern Ireland ducked the question, but a close read suggests they would likely support the position of the English court (McCord et al v The Prime Minister et al [2019 NIQB 78).   And, the Supreme Court of the United Kingdom is set to resolve the question following hearings scheduled to begin September 17, 2019.

 

The facts and speculation surrounding the prorogation are generally well known.  The UK is on the verge of leaving the European Union (Brexit) on October 31, regardless of whether they have an Agreement with the EU on the terms of leaving.  The government claims it would like a deal but is prepared to leave on October 31 without one.  It is not prepared to extend the deadline.  Parliament is concerned about leaving without a deal and has passed legislation, over the objection of the government, requiring the Prime Minister to ask for an extension of the deadline until January 31, 2020 if a deal is not reached and brought to Parliament for its consideration by October 19.  One of the major issues is the “Irish back-stop” contained in the previous agreement that would leave the UK within a customs union with the EU while permanent arrangements for dealing with the border between the Republic of Ireland and Northern Ireland are worked out.

 

The Prime Minister is not happy with the degree to which his position is seemingly being undermined by Parliament.  On August 28, 2019 the Prime Minister, through the Privy Council, asked the Queen to prorogue Parliament from sometime in the week of September 9 until October 14.   Parliament sat the week of September 2, during which it passed the extension legislation mentioned above. It then sat on September 9 (into the early hours of September 10), when the prorogation took place.  During these few sitting days the Prime Minister tried, through votes, to have Parliament dissolved pursuant to the Fixed-term Parliaments Act but was not successful.

 

The publicly avowed reason for the prorogation request was to allow a new Prime Minister a new fresh start with a new session of Parliament and a Queen’s speech on October 14.   The Opposition and a number of others believed that the real reason for the prorogation, and the length (five weeks as opposed to the average ten days) was to thwart Parliament’s attempts to delay Brexit or to hold the government to account for its negotiations and preparations for the effects of a no-deal Brexit.

 

For the English court, although the background is useful for understanding the case, the reasons for requesting and granting prorogation were not relevant to its decision.  Courts lack jurisdiction to consider the request since the matter falls within the sphere of Parliament to determine.  Conflicts between the government and Parliament are essentially political and within the UK Constitutional framework are to be resolved within Parliament.  For them, the courts must examine and consider the question of jurisdiction, and whether as a category a particular prerogative power can be judicially reviewed, first and separately from the particular facts and exercise of prerogative.  They accept that just because a matter is an exercise of a prerogative does not exclude it from judicial review; however, not all prerogative decisions are reviewable.  In this case, the judges found that the exercise of this prerogative does not directly affect any individual ( as for example, in the case of a pardon) nor is it one that has been affected by legislation that sets out conditions for its exercise (such as dissolution under the Fixed-term Parliaments Act).

 

In this case, the consideration of this prerogative would involve the courts offending the separation of powers and becoming involved in the political machinations of Parliament (being a political struggle between the government and the Opposition within Parliament (para 60-64)) for which there are no measurable standards to determine the scope of reasons permissible for a request for prorogation (para 54).  As a result, the entire exercise of the prerogative to prorogue Parliament is not justiciable.  They consider the arguments made in this case as illustrative of these points.  They ask how a court could measure and consider the appropriate length of time for a government to prepare for a new session (para 56), or how much time Parliament needs to hold the government to account in any given circumstance (para 57).

 

The Scottish court does not concern itself with the type of prerogative at issue but rather the reasons behind its exercise (para 102).   Rather than giving the court pause, the fact that the dispute was between the government (executive) and Parliament, even within Parliament, was seen as a constitutional question and all constitutional questions, the judges assert, have to be answered by the courts.

 

Although the court purports to accept that decisions that are political in nature are not justiciable, they qualify this proposition by saying that it is only decisions that are made on “legitimate political considerations” that are immune from judicial review (para 50).  Those that are seen as an “abuse of power”, “improper” or “irrational” can be struck down by the courts for those reasons (para 74 and 102). “The power can only be exercised for a proper purpose” (para 75).   The court then turns its mind directly to the reason for the prorogation.

 

For the Scottish court it was clear that the stated reason of setting a new government agenda was misleading at best.  The real reason, according to the court, was to impede Parliament from being able to carry out its constitutional functions of legislating and holding the government to account, both of which are particularly necessary at this crucial time for the UK in the context of the potential complexities of Brexit.  The decision precluded Parliament being able to carry out its functions and therefore undermined an essential aspect of the British Constitution that rests upon parliamentary sovereignty.   To use the prerogative to limit parliament’s constitutional role was improper, if not unconstitutional.  The role of the court in this case was, in essence, to protect Parliament from the government.

 

In my opinion the position of the English court is the only result that preserves and promotes the interests of the UK constitution, including, on the basis set out below, the sovereignty of Parliament.

 

To fully understand the findings of the English court one must consider the nature of prerogative power and its exercise.  Prerogative powers are those that are exercised by the Crown that have not been removed from it by statute, through Parliament.  Generally, courts will not interfere with the exercise of a prerogative unless it has been modified by statute, or the rights of an individual are at stake.

 

Some prerogatives relate to the relationship between the country and other nations.  These include the conduct of foreign affairs, the accreditation of ambassadors and the prosecution of war.  Some relate to the relationship between the Crown and individuals, such as the issuance of passports, pardons and the exercise of mercy.  Still others relate to the Queen and her relationship to Parliament.  These include the formation of government (calling on a person to become Prime Minister and form a government), the dismissal of Ministries, the granting of Royal Assent or Royal Consent and the summonsing, proroguing and dissolution of Parliament.   Although most prerogatives are exercised on the advice of the Prime Minister or Privy Council, they are not all the same, nor are all of them reviewable by the courts. This case only involves the last group and illustrates the effect that judicial review could have on the parliamentary system if the courts were to become involved in these matters.

 

Within this last group, the prerogatives that concern the matter at hand are those of prorogation and dissolution.  These prerogatives are closely related.  A Parliament is not just a place, it has a temporal existence.  A Parliament exists from the date it is first assembled until the date it is dissolved.  Once dissolved, elections occur for the next separate and distinct Parliament.  Given that Parliaments can be long, and the legislative focus can be spent or lost (or for various political reasons), they can be broken into sessions.  Although sessions occur within a Parliament, and are somewhat separated, a means was needed to “suspend” Parliament without requiring new elections.  This gave rise to the prerogative of the Crown known as “prorogation”.    When there was no longer a perceived need for Parliament to sit, but the Crown did not want to cause a new election and a new Parliament, Parliament would be prorogued.  Subject to the rules of each House, the effect of prorogation is the same as that of dissolution.  Prorogation commences on the direction of the Queen and all work of Parliament comes to an end.

 

One can see the concerns that abuse of the power to dissolve and call Parliaments could have on the ability of Parliament to petition the Crown or make laws.  Eventually, Parliament wrested some degree of control over the prerogative over the calling and holding Parliaments by withholding requests for taxes, and ultimately through legislation that set the length of Parliaments and the need for Parliament to sit at least once a year.   The prerogatives relating to dissolution and prorogation were left intact, and ultimately, as a result of responsible government and the confidence convention, the practice of the Crown only acting on the advice of the Prime Minister developed.

 

Later, as political parties grew in strength, it was Parliament, not the courts, who curbed the growing power and potential abuse of the Prime Minister to determine the timing and date of elections, through restricting the basis on which the Prime Minister could advise the Queen to exercise her prerogative to dissolve Parliament.  The Fixed-term Elections Act restricted the power of the Prime Minister to seek the exercise of the prerogative to dissolve Parliament until a specific date, or under limited conditions, based on specific decisions of the House of Commons.  Again, a prerogative that affected Parliament was to be restricted or managed by Parliament (or as a result of its legislation).  What is significant in that legislation is that subsection 6 provides that “this Act does not affect Her Majesty’s power to prorogue Parliament.”   The prerogative to prorogue remains a “pure” prerogative relating to Parliament alone and unrestricted by statute.  The meaning for the present case is clear.  Parliament can control through legislation the exercise of the prerogative of prorogation, in the same way that it chose to control the exercise of the prerogative of dissolution.  But it overtly chose not to.  Both prerogatives deal with similar subject matter, the duration of “sittings” or shutting down of sittings of Parliament, but Parliament only sought to curb the prerogative in one case but not the other.  These are prerogatives that only relate to Parliament and have been historically solely within the purview of Parliament to regulate.   The exercise of the prerogative in this context is intrinsically connected to the privilege of parliament to control its own proceedings, which would not be reviewable by the courts.  As a matter involving the internal management of Parliament, and which Parliament can clearly control and manage as it chooses, the matter is one that is beyond the jurisdiction of the courts to consider.

 

The Scottish decision purports to be founded on the principle of parliamentary sovereignty and the decision was taken to protect the rights of Parliament as against the executive.  But what the judges may have accomplished, if their position is upheld, is to weaken the sovereignty and constitutional independence of Parliament and its Houses.

 

There are several factors in this case that are troubling from perspective of Parliament and its legal and constitutional position.  The case in Scotland was not brought by the party whose rights might have been at stake—the House of Commons, or the Speaker on House’s behalf.  The case in Scotland was brought by some 67 individual Members of Parliament, plus a private individual.  These were Members who were concerned with the actions of the Prime Minister as against the House as part of Parliament.

 

The first concern is that of standing.  As a constitutional entity, and as a collective body consisting of its Members, it is questionable as to whether the House of Commons has any “rights” that would be affected by the Crown, as part of the constitutional order, when the Crown exercises its prerogative.  How does the House of Commons have “rights” in this context?  Also, how do Members, who only have the status of Members within and as part of the House have rights that are separate and distinct from the House which they can assert outside of the House?  This is essentially what the Scottish court has allowed.  It has allowed individual Members of Parliament, who may or may not have asserted their rights and powers within the House, and not succeeded in having their view adopted, to bring the issue to the courts.  They have essentially invited the courts into Parliament; that is, to choose sides within the legislative branch of the State apparatus.  This involvement in relationship between the Opposition members in the House and the government as it relates to the business, timing and sittings of the House, is not only an unwarranted intrusion but a dangerous precedent that could be used and expanded to deal with all manner of disputes and disagreements between the House and the government.

 

The independence of Parliament is threatened by the decision of the Scottish courts. The decision could deny the Houses of Parliament not only the ability to conduct their business independently of the courts, but also the ability to protect themselves from any perceived, anticipated, or actual threats (past, present or future) from the government and its members within the House itself.  The Houses of Parliament’s ability to act is not merely political, it is constitutional and legal.   And their actions and decisions in this regard are not reviewable in the courts. Such a review would be a violation of Article 9 of the Bill of Rights¸1689 which precludes the courts from questioning or impeaching proceedings in Parliament. The Houses of Parliament do not need, nor should they seek, any aid from the courts in this regard.  As noted earlier, independence gives Parliament the ability to regulate the exercise of the prerogative of prorogation in the same way that it set terms on the related prerogative of dissolution.  This it did not do, even though Parliament sat for at least a week after the prorogation decision was made but while prorogation was yet to take place.  If there was a concern that the House of Commons lacked time, it could have decided to sit during any period of adjournment.  There were infinite possible forms of legislation that Parliament could have used to deal with Brexit.  Either House could have considered a motion of contempt and punished (including by way of imprisonment) those in contempt until the contempt was purged. More fundamentally, the House of Commons could have tried to wrest control of the government from the Prime Minister by voting non-confidence in the government and using the 14-day period in the Fixed-date Parliaments Act to try to establish an alternative government, failing which there would be a general election.  That some or all of these may not have been able to be accomplished because of parliamentary arithmetic, because of political considerations the make-up of the House, or because of electoral concerns does not affect the constitutional role and power of the House to protect itself. That some of these options cannot be used for parliamentary political reasons does not permit members who are frustrated or concerned to turn to the courts to stop even the most abusive behaviour of a government that still enjoys the confidence of the House, as is assumed where the House of Commons has chosen to leave the government in place.  Members of Parliament must use the tools that the constitution gives them, and them alone, without interference (invited or otherwise) from the courts.

 

For the courts to pronounce on the matters at hand is to allow for them to second guess the whys and wherefores of all decisions taken or not taken by the House in relation to the use of these constitutional powers.    The significance of the issue, Brexit, or the limited time frame at issue here cannot be the bases on which the courts decide to become involved.  There will always be issues of major importance and there will always be time pressures.  Focussing on the issues or “facts” at any given moment in time cannot form the basis for court involvement in the business of the House thus upsetting the constitutional order.

 

The functions and powers of the House of Commons are not just political they are constitutional and real.  The fact that there is a political dimension does not detract from these fundamental constitutional underpinnings.  Nor does it allow a court to categorically state that Parliament only holds the government to account “politically”, but the courts hold the government to account “legally”, and since the matter at hand is the constitutional (read legal) relationship between the government and Parliament, the courts are the arbiters. This totally misses the constitutional role that the House has in determining that relationship without interference from anyone, including the courts.  Parliament does not need nor should it any way welcome the courts’ involvement in any of this.  The “crisis” was created through political (referendum), electoral, and parliamentary politics.  Constitutionally it is for Parliament and not the courts to resolve it.

As the Bill to delay Brexit in the event of no deal works its way through the second House of Parliament, can or will the Prime Minister look to the third branch of Parliament, the Queen, to kill the Bill at Royal Assent?

On September 3 the House of Commons took over the legislative agenda from the UK government in order to introduce a Bill to stop the UK from “crashing out” of the European Union on October 31 without an Agreement with the EU.  The Bill would require the UK government to seek an extension of the leave date until January 31, 2020 if an Agreement with the EU is not reached by October 19.  The Bill passed the House of Commons over the objection of the government.  The government was so incensed that the Prime Minister withdrew the conservative whip from over twenty members who broke government ranks and voted for the Bill, effectively expelling them from the party. The Prime Minister then attempted to engineer a vote to dissolve Parliament and have an immediate election.  This failed. The Bill now moves to the House of Lords where many Conservative Lords are attempting to delay passage until prorogation (which can be as early as next Monday) by introducing numerous amendments and causing a series of votes.  If the Bill does not receive Royal Assent before prorogation, it will not become law.

Given the almost virulent opposition to the Bill and the looming prorogation, the question arises as to whether the government will attempt to take steps to delay Royal Assent before prorogation, or even advise the Queen to not grant Royal Assent.   If either course is taken, there would no doubt be a parliamentary uproar that would result in some form of confidence motion triggering an election, but the Bill will still have died on the order paper without becoming law.

There is no doubt that such a manoeuvre would be unprecedented and create what many might see as yet another constitutional crisis; so, the question posed above may become more than academic.

It is seldom that one is required to consider that Parliament is composed of three distinct actors: the House of Commons, the House of Lords (the Senate in Canada) and the Queen.  Each has an independent role to play in the legislative process and all three must agree on any enactment.  Usually there is no need to even think about the third player, the Queen, who grants royal assent to any Bill presented to her for Royal Assent.  This is because the overwhelming majority of Bills originate with the government (formally Her Majesty’s government) and there is little question that the government will present its Bills to the Queen for Assent with the implicit “advice” that she grant assent.  The last time that any monarch tried to exercise independent judgment and refuse royal assent was in the reign of Queen Anne.

What is to occur when Parliament passes a Bill and the government does not want the Bill to become law?  Can the government delay or block its presentation to the Queen? Can the Bill find its way to the Queen by other means than by government initiative and if the Bill does get to the Queen, can the government advise the Queen not to grant Royal Assent? Does the Queen have to follow the Prime Minister’s advice?

The problem presents itself because the Queen has two sources of advice that she is usually obliged to follow.  On the one hand convention requires that the Queen only act on the advice of the Prime Minister (or Privy Council) and she must, unless precluded by law, follow that advice.   This would suggest that the Prime Minister could advise the Queen to not grant Royal Assent. Or, if not wanting to put the Queen in such an unenviable position, take steps to delay having the Bill presented to her before prorogation.  On the other hand, when acting in her legislative capacity, Bills come to her, not on the advice of the government on the advice of the two Houses.  For example, in the present case, like all Bills, the opening salutation of the Bill states:  ” Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same …”

Before presenting Her Majesty with this dilemma, the question arises as to how Her Majesty would be advised that a Bill has been passed through the two Houses.  Usually one would expect that arrangements would be made through the Privy Council Office.  But what if this process were somehow delayed?  Could the Speakers jointly advise the Queen of the proceedings and seek her Assent without the involvement of the Privy Council?

Even assuming the Bill finds its way to the Queen in the usual course, or through some other formal means, could the Prime Minister still advise the Queen not to grant assent?  Would the Queen be obliged to accept that advice, or would She be required to accept and follow the advice of the two Houses assembled in Her Parliament?

The opinion of academics seems to be divided. On one side are those who hold fast to the notion that the Queen only acts on advice of Prime Minister, and that in such a case the Queen should refuse Royal Assent and allow the political process of a subsequent motion of non-confidence to follow the giving of such advice (i.e. a motion holding the government or Prime Minister in contempt of Parliament), ultimately leading to a decision by the electorate on the question.

Others, like me, are of the view that the Queen, when granting Royal Assent, is not carrying out an executive function, but a legislative one.  Her role and “loyalty” in the legislative process is to Parliament.  The two Houses are her advisors on law-making.  The making of law is quite different from making executive decisions pursuant to law or prerogative on which the Queen takes advice from the Prime Minister.

One hopes that the Prime Minister will accept the decision of Parliament and, if the Bill is passed by the House of Lords, will take the necessary steps to ensure that the will of Parliament is respected by having the Bill presented to the Queen to received Royal Assent before prorogation.  This will avoid creating yet another “constitutional crisis” or putting the Queen in the unenviable constitutional position of having to choose between the advice of Her Prime Minister, or that of the Parliament of which she forms a crucial third part.