No Place for the Courts — Brexit Case(s) on Prorogation

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.

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