284 - Pro Rogue


[2019]UKSC 41
On appeals from : [2019]EWHC 2381 (QB)
And [2019]CSIH 49

I’ve put together a breakdown of the deliciously clear thinking made by our Supreme Court this week.

I can’t write prorogue, without, each time, recognising the roguish nature of our current PM. This is his image and possibly self-image; the lovable rogue. Declaring him to be a professional rogue therefore follows quite easily and gives me a title for this piece.

Prorogation is that process by which parliament is caused to not sit, to have ended a session of parliament. A new session begins with a Queen’s Speech, in which the government sets out its objectives for the session. The current session is unusually longer than the norm of a year thanks to Brexit and its several delays. A session can have a pause, equivalent to any school holiday, known as a recess, such as we would normally have for the conference season, running currently; Labour party this week.

Our Supreme Court—a relatively new body for us, brought about by EU membership indirectly —has ruled that the prorogation of parliament was unlawful. We have an understanding here that the law and our politics should be separate, but of course there are occasions where the two come into contact or even conflict.

Prorogation ends a session of parliament, leaving the government in power but without the brake that Parliament exerts on processes. Different from dissolution, which is what we have during an election frenzy (here, usually six weeks) and different from recess, explained above.

The problem (was the prorogation lawful) starts with consideration of whether the matter is justiciable (what a lovely word); then if it is, against what measure the lawfulness can be judged; then was that a lawful move; if it was not lawful, what is the remedy in law? Judgment, para27 [7 §27]

Fascinating: we discover (remember, we do not have a written constitution) that in effect (loophole here?) the PM makes a personal decision, which requires him (because of the office) to make decisions with regard to all relevant interests including those of Parliament (which is not the same as government, nor the same as the party in power). The court then decided although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. So, if the PM is accountable to Parliament, does that make the matter unjusticiable? No, because proroguing makes the accountability not occur. Further, being politically accountable does not grant immunity from legal accountability; that will have consequences, as, indeed will many of these intermediate decisions—which is why I am writing.

Para 34 of [7]: Fourthly, if the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers. [7,§34]

The court decided that the matter was justiciable; specifically that the court was operating in its proper function in judging whether the power of prorogation was being applied lawfully. They went further and drew a distinction between: (1) cases concerned with whether a prerogative power exists, and if it does exist, its extent; and (2) cases where it was accepted that a prerogative power exists and has been exercised within its limits, but the exercise of the power is sought to be challenged on some other basis. [7, para 35]

Class (i) cases are definitely justiciable, while class (ii) might be, dependent upon the particular prerogative power being exercised.

So is this case type (i) or (ii)? Oh dear, this is not clear either.    ¹

Go back to the principles stated originally (I love the ordered thinking); is there a standard of lawfulness to apply? If there is, then this is a class (i).  [Dispute? Further discussion required and significant scope for argument, I think].

Sub-decision made; that a statutory power is pretty clear, since it should be explained by itself, while prorogation is more difficult, not having a statute. Observation: we do have a constitution,  established over the course of our history by common law, statutes, conventions and practice. Decision; there are constitutional principles and powers such as prorogation cannot be used in contravention of these. Oh, this will have consequences, even though it is stating the obvious.

What principles might apply here? Well, first we have parliamentary sovereignty, something that parliament itself has been shouting about over the last few years; but here is another significant brick in the wall being built towards the larger decision; Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. [7, § 41]

The Court held that parliamentary sovereignty was engaged here, in this case. Another brick in the wall. Of particular note, that exercise of power so as to prevent parliament from exercising its authority could occur and should not do so. [Sub-exploration: when can parliament meet while prorogued? Exceptional occasions such as outbreak of war, all covered by statute.]  Nice touch here: If this claim was not justiciable, that would mean that there would be no circumstances whatsoever in which a court would be entitled to review a decision that Parliament should be prorogued. Therefore, the Court had to consider the implications of this. [5] It follows, says the court, that the power to prorogue cannot be unlimited.  

A second constitutional principle is parliamentary accountability, also undisputed. This would be threatened (“jeopardised”) by an unlimited power to prorogue. So a key issue is how that power to prorogue is limited by these two principles. Complicated, isn’t this? 

Conclusion as published: 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.  [source 7, § 50].  So the court ruled that there ARE standards by which the lawfulness can be judged, giving the answer to the justiciability issue. Significantly and particularly the court would be determining the limits of a (the?) prerogative power and not testing whether it was exercised within its limits. A nice point, but I think an important one. Another brick, indeed. ²

So the court made a statement of constitutional principle:

 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.   [7,§55]

Consequently the PM’s action DID have the effect of preventing the constitutional operation of parliament, that of holding the government to account. [7, §55-6]. The reasoning for this is obvious locally (to those of us that live here this is obvious); we face a deadline of 31st October and Parliament has a right, possibly a duty, to effect and affect how that comes about; it has passed law itself that demands parliamentary action, which cannot occur if parliament is not sitting. For background explanation, read the first ten or so pages of source 7.

Nice side point, prorogation would normally be 4-6 days, not the five weeks decreed by the PM. At this time of year we would normally have a recess to accommodate the party conferences, held serially in reverse order of seats held (i.e., the party in power goes last, including the 1st October, I think).

So we move to the next critical issue, of remedy. This, the court ruled, was avoidable, since it had decided that the prorogation was improper —the press quote is that prorogation was unlawful, null and void— and as such, it somehow did not happen; as they say in debates, the motion was not put.

At this point the uk.gov representative QC argued [7,§63] that the court cannot do that, because prorogation is a ‘proceeding in parliament’, something which lies outside the law, by statute (is that circular? not quite). Held, that this is not a ‘proceeding’, because it contains no decision (no vote, no speaking), it is an imposed process. Nice one. 7,§65 gives a good example from 2010 when MPs claimed that their expense claims were such proceedings and therefore exempt from court scrutiny; there is a lengthy judgment available that explains why this is not so, but this is a matter of conflicting with an Act of Parliament. Prorogation is not such. ³

So the advice (think Advice) that led to the act of prorogation was itself unlawful (not illegal), outside the powers that the PM holds. (I think there is room for argument here, that advice can be unlawful: I think that there must be a point at which the prorogation is caused to occur and it is that cause which is being called Advice, as in advising the Queen, which is declared unlawful, being outwith the powers that the PM holds.) Since the Advice was unlawful, the instruction to prorogue was unlawful, so the prorogation was unlawful, which means it didn’t happen. 

So the actions of the executive may be unlawful if they interfere with constitutional principles The constitutional principles of parliamentary sovereignty and accountability have weight (effect, standing, teeth; pick a suitable word). We have (had) declared the relationship between parliament and government; sovereignty means that parliament is senior and government junior. In particular, government cannot (may not, is not allowed to) frustrate parliament. [5, conclusion] . There is a list of justifications for doing so to be discovered and discussed. 

I find the ‘actions of the executive may be unlawful’ in the first sentence above worrying: what does ‘may’ mean here? I’d like to think that whenever a constitutional principle is interfered with it is tested, though perhaps that means tested by a court such as this. I discover how very many judicial reviews of government process there are, which may be evidence that the process already exists. If so, this is surely healthy, but for the fact that this becomes seen as a device by which the behaviour of government is hampered.

The Scottish court decided that the prorogation was motivated improperly. The Supreme Court has dodged this (wisely, I say) 7,§58, not concerned with the PM's motives, but requiring that there be a reason for shutting parliament for five weeks — none was given to the court but the need for a Queen's speech, which takes about one week, not five [7,§56-61]. So we do not have a finding whether BJ lied to or misled the Queen, only that what he did in advising (that Advice thing) prorogation was itself unlawful. The convention that what is said between monarch on her first minister is kept private prevents sharing whether she said anything cautionary and relevant (but I’ll bet she did).

DJS 20190925

I particularly used sources [5] and [7] in writing this. I found the press coverage inadequate, since we had been told in advance that this was going to cause the Supreme Court to work hard in facing difficulties working through this. I see it as significant that the ruling had no dissenters across the 11 judges making up that court.

[1] https://en.wikipedia.org/wiki/2019_British_prorogation_controversy  
[2] https://www.channel4.com/news/factcheck/factcheck-supreme-court-ruling-on-prorogation-explained[3] http://www.bailii.org/uk/cases/UKSC/2019/41.html  
[4] https://commonslibrary.parliament.uk/parliament-and-elections/parliament/decision-of-the-supreme-court-on-the-prorogation-of-parliament/ 
[5] https://ukhumanrightsblog.com/2019/09/24/supreme-court-rules-unanimously-that-the-prorogation-of-parliament-was-unlawful/  

[6] https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf  This summary is just over 3 pages and worthy of a read.
https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf This is the judgement itself, 24 pages of detail.

  The Supreme Court replaced the Law Lords as the final arbiter inside the UK, 1/10/2009. See.

¹ [7,para36]. Counsel for the Prime Minister rely on that dictum [that the dissolution of Parliament as one of a number of powers whose exercise was in his view non-justiciable]  in the present case, since the dissolution of Parliament under the prerogative, as was possible until the enactment of the Fixed-term Parliaments Act 2011, is in their submission analogous to prorogation. They submit that prorogation is in any event another example of what Lord Roskill described as “excluded categories”, and refer to later authority which treated questions of “high policy” as forming another such category (R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] QB 811, 820). The court has heard careful and detailed submissions on this area of the law, and has been referred to many authorities. It is, however, important to understand that this argument only arises if the issue in these proceedings is properly characterised as one concerning the lawfulness of the exercise of a prerogative power within its lawful limits, rather than as one concerning the lawful limits of the power and whether they have been exceeded. As we have explained, no question of justiciability, whether by reason of subject matter or otherwise, can arise in relation to whether the law recognises the existence of a prerogative power, or in relation to its legal limits. Those are by definition questions of law. Under the separation of powers, it is the function of the courts to determine them.

Fine distinction; does the power to prorogue have limits, or is it the decision to prorogue that has limits? I hope I have understood correctly.

 ²  Two different words, prerogate (prerogative, prerogation) and prorogue (prorogation). Using my computer's dictionary:
Prerogative adjective LawBritish arising from the prerogative of the Crown (usually delegated to the government or the judiciary) and based in common law rather than statutory lawthe monarch retained the formal prerogative power to appoint the Prime Minister

Prerogative noun a right or privilege exclusive to a particular individual or classin some countries, higher education is predominantly the prerogative of the rich• (also royal prerogative[mass nounthe right of the sovereign, which in British law is theoretically subject to no restriction• a faculty or property distinguishing a person or classit's not a female prerogative to feel insecure.

Prorogue verb (proroguesproroguingprorogued[with objectdiscontinue a session of (a parliament or other legislative assembly) without dissolving itJames prorogued this Parliament, never to call another oneHence, prorogation.

³ Basically, a proceeding, as used in the parliamentary technical sense is some formal action taken by the House in its collective capacity. Quoting Erskine May, An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. [7,§67]. That would not include chasing up an expense claim, clearly not a formal action.

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Unusually, I had some response to this post. Tim, who is a distant relative in Canada, asked I'm curious what happens if Parliament vetoes a no-deal Brexit, but fails to endorse the deal previously negotiated by the May government (presumably the only one on the table at the moment). Parliament could order the government to request another extension, but the EU is not compelled to grant it, as far as I know. What then?

My reply:: Certainly there are assumptions of co-operation from the EU that has no reason to behave so. Indeed, one can understand all sentiments amounting to "Enough, just go away". We have dissenting divisions in both major parties and the rancour level is cranked up well past any level of politeness. When sense meets emotion politically, the emotive always wins and where we have reached has pitifully little sense left. The shouting is rampant.

I'm afraid that we actually need something to break so that any element of sense can be restored. But if something breaks it has to break sufficiently thoroughly that, whatever those things are that cause us to be in this mess, the causes are aired and sorted, not merely shoved under some metaphorical carpet to reappear in later years.

He also posted, same day on his own FB page: If I recall correctly (actually I just looked it up), when David Cameron first promised a referendum in a 2013 speech, he said: “When we have negotiated [a] new settlement, we will give the British people a referendum with a very simple in or out choice … to stay in the EU on these new terms, or come out altogether.” But of course, when Britons voted in the original 2016 Brexit referendum, they didn’t know the terms of the deal – those negotiations kept going until May of this year. Theresa May did offer to hold a second referendum based on that final agreement, but her offer was rejected by Parliament – on what grounds, I don’t know. But given what I see as a relatively small margin in the 2016 referendum (52% to 48% in favour of Leave), I can’t understand why the initial result should still be considered binding. Why not hold a second referendum now? A lot of additional information has come out in the last 3+ years, and people have had plenty of time to reflect on their original vote, so there shouldn’t be any need for campaigning. If the country can hold a general election in 5 - 6 weeks (more or less), involving multiple political parties and thousands of candidates, surely they can organize a simple referendum in less time. Why isn’t anyone actively promoting this, if only to give legitimacy to whatever the final outcome turns out to be?

and my response: I agree with you. Having voted in the 1975 referendum, it was made very clear at the time that a big enough majority was required to make Parliament act on staying in Europe. Further, we were told, often, that referendums are advisory, which is why a significant majority was necessary. we were told 65% to 75% was the sort of margin needed (to convince the naysayers? I don't know). So when confronted with the 2016 version, I wanted to know what we were not told about margins; no-one would answer me and, no surprise, we had a close result. To me, that said and still says, "We're not sure, but on balance, we're not happy about Europe". This ties in with what Cameron thought was going on (current tv programme on the topic). But somehow the referendum became a decision (which is not what the statute says it is) and from there the level of so-called conversation has slid downwards to what is now entrenched positions and a lot of shouting with damn all listening.

So yes, Tim, we need a resolution, but no, a route to such a result does not seem likely, nor forthcoming. In some regards, BJ is the right sort of bull-headed leader to produce a result (even if I disagree with him what that result ought to be). But that does little or nothing to fix whatever the underlying problems are, including fixing the position in Europe that the referendum could be seen as pointing to. The EU sans UK is likely to go faster and further in the direction of federation than Britain would ever stomach and this, in my view, will cause other nations to feel more as we have done. So for them, persuading Britain to stay (Remain) has positive value. 

Meanwhile, the stridency we have seen over the last three years has soured many to any larger enterprise and I'm afraid most of us simply want it to stop, whatever 'it' is. I think the shortest way to cessation is to revoke Article 50, but that does nothing at all to address the underlying issues vis-vis the UK in Europe, though it would allow us to begin to attend to the many other issues left ignored. 

One route I favour would be to use Citizens Assemblies (and not Parliament) to explore several of the revealed issues: that would move our democracy in what I think would be a healthy and inclusive direction and, if allowed to generate spin-off assemblies, might begin to engage the wider public politically in ways that cause us to be informed rather than merely opinionated. What we have at the moment is a position where very few are listening and fewer still are questioning what it is they hold to be in any sense a 'truth'. For example, try looking at the Lisbon Treaty and what I might characterise as the stereotypical brexiteer says it says. And that is merely an example, easily checked through the web. 


This does not answer all of his initial question, ignoring Why not hold a second referendum now? and Why isn’t anyone actively promoting this, if only to give legitimacy to whatever the final outcome turns out to be? No second referendum because not enough politicians can agree that is a route they want to take. Attached conditional statements such as 'convince us that no-deal can't happen first' and issues such as 'exactly what goes on the paper?'

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