Constitutional Law Blog Essay

Prorogation, Prerogative, and the Supreme Court

When times are good for constitutional lawyers, they are bad for everyone else.  Boris Johnson, the Prime Minister of the United Kingdom and Leader of the Conservative Party, is in an almost unprecedented position.  He has lost his majority in the House of Commons, but is unable to bring about an election.  The majority of Members of Parliament (MPs) oppose his plans for Brexit, and Parliament has become a forum in which the Government is held – vigorously – to account, even passing legislation that seeks to prevent the Government pursuing its core policies.  Unsurprisingly, the Government is as fed up with Parliament as Parliament is with the Government.  But more surprisingly, Johnson thought he had found a way to silence this annoyance: prorogue Parliament.  Prorogation occurs when a session of Parliament is brought to an end, suspending the operation of the Lords and Commons.  This suspension usually lasts only a few days until a new session begins with the Queen’s speech.  In contrast to a parliamentary recess, prorogation does not require a vote, and can brought about through the prerogative: the Queen, acting on the advice of the Prime Minister (mediated through the Privy Council) issues an Order in Council commanding prorogation, the Order is taken to Parliament, and Parliament is then prorogued.   Johnson attempted to use this power to prorogue Parliament for a five-week period, seeking respite from the troublesome legislature.

In R(Miller) v The Prime Minister  the Supreme Court was asked to rule on the legality of Johnson’s prorogation.  The court heard appeals from two cases, the first, from the English High Court, in which the Prime Minister’s use of the prerogative was upheld, the second, from the Scottish Inner House, in which the use of the prerogative was struck down.  In a trenchant, and comparatively short, judgment, the Supreme Court unanimously declared that the advice given by the Prime Minister to the Queen was unlawful, which made the Order in Council issued as a result of that advice unlawful and of no effect, and, as a result, Parliament had not been prorogued.  MPs returned to sit in the Commons the following day.

There are many points of interest in the case, but this post will focus on three: first, the way the Supreme Court circumnavigated questions relating to its jurisdiction; second, the use of constitutional principles in judicial reasoning; and, third, the extent to which the case amounts to a change in the law.

1. The Justiciability Question

There are at least two levels of control that courts exercise over the prerogative.  First, a court can enquire whether the purported prerogative power exists.  Second, assuming its existence, a court can review its exercise, asking whether the power was used in a reasonable fashion.  When the English High Court heard Miller at first instance, it concluded that the courts lacked jurisdiction to review decisions relating to prorogation.  Since the 1985 decision in Council for Civil Service Unions v Minister for the Civil Service, courts have asserted the right to review the exercise of some prerogative powers but they have never claimed to be entitled to exercise review over all such powers: some areas are off-limits.  The High Court concluded prorogation was unreviewable, finding the exercise of this power was inherently political. In the Scottish case, in contrast, the court found both that the exercise of the prerogative was justiciable and that, when reviewed, the advice failed at the second stage.  The Scottish judges found that the Prime Minister’s advice was based on an improper purpose: prorogation aimed to ‘stymie’ Parliament. 

Whilst both the English High Court and the Scottish Inner House treated Miller as an attempt to review the exercise of the prerogative, the Supreme Court, in contrast, presented the case as turning on the question of its existence, tackling the advice at the first level of control.  The Supreme Court concluded that: 

“[T]he relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

By moving the issue in the case from the second level of review (the reasonableness of the exercise of the prerogative) to the first level (its existence) the question of justiciability was ingeniously, if awkwardly, circumnavigated.  The courts have long had the power to determine the scope of the prerogative, and the court argued that this assessment did not raise the justiciability issues that would have been engaged if they had sought to review its exercise.   After all, the judges were not trying to gauge the reasonableness of the use of the prerogative, but merely seeking to identify the existence of a claimed legal power.  The result of this nimble reasoning is a little artificial.  In effect, the Supreme Court has built review of the exercise of the prerogative into an examination of its existence. The scope of the prerogative power now turns, in some instances, on whether the Executive can convince the court that its exercise was reasonable.  The Supreme Court dodged, rather than answered, the justiciability point.      

2. The Use of Constitutional Principles in the Reasoning

When the Supreme Court assessed the scope of the prerogative it invoked broad common law principles to determine the prerogative’s limits.  Specifically, the Supreme Court relied upon the common law principles of parliamentary sovereignty and parliamentary accountability to determine where the boundaries of the prerogative lay.  Miller’s use of common law principles follows a trend in recent constitutional cases, forming part of a wider shift in judicial rhetoric, away from basing constitutional decisions on narrow rules and towards a broader, principled, approach.  We see this in a series of important recent cases, including the decisions in Privacy International and the first Miller decision.  There is not the space here to explore this development, but it may mark a move in the self-perception of the Supreme Court and its understanding of its role (and the role of the common law) in shaping the constitution. 

Relatedly, whereas in past cases courts approached the task of determining the existence of a prerogative power as a question of identification, an attempt to identify a source of legal power distinct from, if recognised by, the common law, in Miller the court asks what the scope of that power should be, given the constitutional role played by the prerogative.  The court is no longer merely identifying, it is tailoring; fashioning the prerogative to fit the modern constitution.  This shift in approach can also be seen in the Supreme Court’s treatment of parliamentary privilege.  As a side argument, the Government sought to argue that the Supreme Court was unable to quash prorogation because prorogation was a proceeding in Parliament, and so, under the Bill of Rights 1689 and the wider law of parliamentary privilege, could not be called into question in the courts.  The argument was plausible.  Once the order to prorogue has been made, it is then received, and acted upon, by parliamentary officials, including the Speaker. It could be argued that whilst the advice of the Prime Minister could be reviewed, and, perhaps, the Order in Council could have been declared void, the process of prorogation itself occurred within the Commons and Lords, and so was covered by privilege.   After all, if Parliament had not been prorogued these officials would have made a mistake.  The Supreme Court had little time for this reasoning, but the manner of their rejection of the argument tracks their treatment of the prerogative.  Once again, the Supreme Court examines the point of this source of constitutional law.  Parliamentary privilege exists to protect the core business of the Commons and the Lords, whilst prorogation, in contrast, “brings that core or essential business of Parliament to an end.” The court was not concerned with the detail of the wording of the Bill of Rights or the precise operation of prorogation; instead, it sought to draw the boundaries of privilege in a way that best achieved what the Supreme Court thought was the point of that area of law.

3. Miller as an Innovation

The past two sections contend that Miller was not a restatement of existing constitutional law, but a development of it.  Indeed, the core decision in Miller, quoted above, reads like a statute. The Supreme Court has formulated a rule, quite a precise rule, that now regulates the use of prorogation by the Prime Minister.  This outcome was not one that any constitutional lawyer could have predicted with confidence, though the trends that led to Miller could be seen in earlier cases.

That Miller was a development of the law does not imply that the Supreme Court got it wrong, as  some have argued.  Courts develop the law all the time.  This is one of the tasks of the judges, especially judges in the higher courts.  Johnson’s decision to use prorogation as a weapon against Parliament, as a device to shut down scrutiny of his Government was a constitutional outrage, and widely condemned as such.  As I have written elsewhere, borrowing an idea from Mark Tushnet, it was an attempt to play constitutional hardball, a practice that could be particularly damaging in a constitutional system like the UK’s, which is grounded in conventions and understandings.  It is hardly surprising that the Supreme Court, in the face of the Prime Minister’s brazen disregard for the constitution, developed the law to protect Parliament.  And it is unsurprising that they have set out their decision in a statute-like form: even whilst the case was being argued, it was suggested that the Prime Minister would respond to an adverse ruling simply by proroguing Parliament again. It is unlikely a coincidence that the Supreme Court subsequently chose to phrase its judgment in such a way that this would be almost impossible.  As to the Prime Minister, who expressed his displeasure with the result?  To steal a concept from criminal law, those who skate on thin legal ice cannot complain if they fall in.