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The Supreme Court's Prorogation Judgment: Guardian of the Constitution or Architect of the Constitution?

Document Cited authorities 2 Cited in Related
Vincent
Published date01 January 2020
Pages88-95
Date01 January 2020
DOI10.3366/elr.2020.0603
INTRODUCTION

The EU referendum result was always going to place severe strain on the UK constitution. Yet, who would have predicted that the defining constitutional battles of the Brexit process would turn on the ancient tension between the Crown and the UK Parliament, with the Crown acting as proxy defender of the will of the people as expressed in the referendum, against a Parliament determined to secure for itself the decisive say in the timing and manner of the UK's departure from the EU.1 As a result, the Brexit process has turned out to be topped and (perhaps) tailed by two major Supreme Court cases about the legality of prerogative decision-making,2 in both of which the court has sided with Parliament against the Crown.

For all the political and academic controversy it generated, with the benefit of hindsight, the first Miller case looks relatively conventional in legal terms, involving a familiar question of the relationship between prerogative powers and statute. The only complicating factor was the fact that the relevant statutes were silent on the precise question before the court – namely, who had the authority to decide whether to trigger the EU withdrawal process?

The second case – Cherry/Miller No 2 – involved a challenge to the legality of the Prime Minister's decision to prorogue Parliament from 9 September to 14 October 2019. Although justified as being necessary to bring what had been an unprecedentedly long parliamentary session to an end and allow for a new Queen's Speech, the timing of the prorogation in the run up to the UK's intended departure from the EU on 31 October, and its unusual length, were widely seen as intended to prevent Parliamentary action to delay or revoke Brexit. This was a much more challenging decision for the court. Here, the judges were asked to rule at great speed, on a high-stakes political issue (where the relevant decision had already been taken and was not merely proposed), in an area where judicial control was unprecedented and which raised important questions of justiciability, and where there was perceived to be a real risk that the government might not comply with the court's decision.

Nevertheless, in a unanimous judgment, which was clearly and beguilingly reasoned, the Supreme Court held that the Prime Minister's advice to the Queen to prorogue Parliament was unlawful and therefore null and of no effect. It followed, according to the court, that the Order in Council authorising the prorogation and the actual prorogation itself were also unlawful and null – it was “as if the Commissioners had walked into Parliament with a blank piece of paper”.3 Thus, the court carefully side-stepped the risk of non-compliance, by making it clear that it was for Parliament itself to decide how the interruption to the session should be handled.4

The elegance and skill with which the court handled the problem that had been presented to it should not, however, blind us to the fact that its decision was far from inevitable, and that it engaged in considerable creativity in casting itself as the guardian at common law of constitutional values hitherto regarded as grounded in the political rather than the legal constitution. This brief note seeks to expose the various argumentational sleights of hand employed by the court, and also considers the broader constitutional implications of the decision. First, though, it explains the background to the case, and outlines the Supreme Court's reasoning.

 THE ROUTE TO THE SUPREME COURT

The path the case took to the Supreme Court was somewhat complex. The origins of the litigation lay in Spring 2019 when it began to be suggested – in the run up to the first intended Brexit day, 29 March – that the government, in the absence of a majority in the House of Commons, might use various prerogative powers, including prorogation of Parliament and withholding of Royal Assent, to frustrate attempts by MPs to delay or block Brexit.

Following the extension of the Article 50 negotiating period until 31 October, and Theresa May's replacement by Boris Johnson as Prime Minister, three separate sets of litigation were begun in summer 2019 in anticipation that the threat of prorogation might arise again. Proceedings were raised in Scotland by a group of parliamentarians, led by Joanna Cherry MP, in England, by the pro-Remain campaigner, Gina Miller, and in Northern Ireland...

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