The case was a “one off“. It arose out of “circumstances which have never arisen before and are unlike to arise again”. The Prime Minister had prorogued Parliament for five out of the eight remaining weeks before the greatest constitutional and legal upheaval the British constitution will have seen in modern times.
As is now well rehearsed, the Government sought to argue that this prorogation was nothing out of the ordinary, that it was brought about in the normal conduct of business in advance of a Queen’s speech. Lord Pannick QC on behalf of our client Gina Miller, argued that that was not the case – he said that this was an extraordinary use of the power at a crucial time in UK politics, that no reason at all (let alone a good one) had been given for a prorogation of this length and timing, which would have the effect of effect of preventing Parliament debating Brexit in the run up to 31 October 2019.
“[O]ur law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution….Let us remind ourselves of the foundations of our constitution.”
Reading the judgment it now it seems so straightforward, so obvious: of course the Prime Minister shouldn’t be able to shut down Parliament as suits him or her. After all, the Supreme Court reminds us, the Government is only able to govern while it commands the confidence of the House of Commons. But it did not feel so certain going into the hearing, particularly coming off the back of a total 3-0 loss in the Divisional Court.
There is so much that can (and has been) said about the judgment given. Many praising its clarity and simplicity, others criticising the judgment as an overreach, an example of the Court wading unwelcomed into the political. Having had the honour of a role in the preparation of this case and the privilege of being in court to hear the arguments played out, the below are some of the points which strike me as being the most interesting about the judgment.
First, justiciability. The Miller 2 case failed on justiciability in the Divisional Court, which said that the case ‘is not a matter for the courts’ because ‘in the present context of non-justiciability, the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action”.
The Supreme Court disagreed in the clearest terms. “…it is well established, and is accepted by counsel for the Prime Minister, that the court can rule on the extent of prerogative powers.” The legal standard applied “is not concerned with the mode of exercise of the prerogative power within its lawful limits. On the contrary it… [marks] the boundary between the prerogative on one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand… [it] concerns the extent of the power to prorogue, and is therefore justiciable.”
The crux of the judgment is its analysis in relation to the scrutiny role of Parliament. Parliamentary sovereignty, the cornerstone of our constitution, relates to Parliament’s role as supreme law maker – only parliament can make or unmake laws and even the executive is subject to them. This judgment focussed on a related but separate role of Parliament in which it holds the executive to account. It is this principle, as well as parliament’s ability to make law, which the Miller team argued had been breached by the length and timing of the prorogation. This judgment has confirmed this supervisory role of parliament in constitutional law.
There has been much discussion as to this being the creation of new law, and evidence of the Court overstepping its own boundaries. But this is not new territory. The principle of governmental accountability to parliament has been well rehearsed both in case law and statute. Lord Carnwath in his dissenting judgment in the first Miller case from two years ago noted that Parliamentary accountability was “no less fundamental to our constitution than Parliamentary sovereignty“. It is a constitutional role played by parliament and an important one, as is laid out in irresistibly simple language in the judgment: “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… [it] 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 result of this is that the executive cannot prorogue parliament for as long as it wants if it has the effect of preventing parliament from carrying out its supervisory role. There is no limit on the power other than that. This now seems the obvious and sensible approach – the alternative is a situation in which the Prime Minister could prorogue an unsupportive Parliament for any length of time that suited him or her – two months? Six? A year? That is not a comfortable democratic position to be in, and one which the Court determined would in fact be unconstitutional.
And despite the very political background to the case, it was as non-political as a judgment on these matters at this time could possibly be, and carefully so. It focussed on the effect of the prorogation, not the motive. The court said that, on the evidence put before it no reason was given for the length of the prorogation but declined to speculate as to what the true reason might have been. It did not have to, so it did not: “It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks. We cannot speculate, in the absence of further evidence, upon what such reasons might have been.”
Of course, the judgment was also unanimous, and a great credit to Lady Hale’s presidency that it was so. There are no dissenting opinions for detractors to hang their hats on, and much less opportunity for criticism: a handful of judges are easier to accuse of bias than an entire bench of 11. It shows the solemnity with which these issues were approached and the gravity with which judgment was given.
The real triumph of this judgment, however, was its simplicity. It is short, it uses simple language and deals neatly and without complication in the fundamentals. It has been written to be read by people other than lawyers. It confirms our basic constitutional principles: our parliament is sovereign, executive power is not without limit, and we are all subject to the rule of law. Even the Prime Minister.
Emily Nicholson is a managing associate at Mishcon de Reya