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  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.