The Government should be careful what it wishes for from the Supreme Court

Barristerblogger is normally risk averse when it comes to commenting on great questions of constitutional law. I have always thought it is something best left to the experts: academics like Professors Paul Craig  or Mark Elliott, for example, or former Government lawyers like Carl Gardner or David Allen Green who know how these things work from the inside.  However, since everyone else has been putting their two pennyworth into the Prorogation cases, including “Britain’s rudest man” David Starkey, perhaps I can throw in the contribution of a polite criminal hack.

1. The Supreme Court will be criticised whatever it does

If the Court upholds the Scottish Court of Session decision that the Prorogation of Parliament was unlawful it will be criticised for making a political decision.

If it upholds the English Divisional Court it will give a gift to Scottish Nationalists who will denounce a court made up largely of English judges for over-ruling the unanimous judgment of the highest Scottish court.

Incidentally, the decision to increase the number of judges hearing the case from 9 to 11 has increased the English majority from 5 – 4 to 7 – 4. (The “non-English” judges are Lords Reed and Hodge from Scotland, Lord Kerr who is from Northern Ireland and Lord Lloyd-Jones who is Welsh).

2. Talk of Fascism is wrong and dangerous

The prorogation of Parliament has not brought about Fascism, or anything close to it. Elections continue. Free speech is not dead. Judges have not been dismissed from their posts for political reasons. Boris Johnson is not about to arrest his political opponents, or to send out death squads to murder them. The danger of such talk is that should something close to actual Fascism ever appear the warnings will fall on deaf ears. Remember the boy who cried “Wolf.”

3. The case is still very important

If, as the Court of Session thought, the purpose of the prorogation was to “stymie” further legislation, it has failed. Far from preventing or “stymying” legislation, outrage over Mr Johnson’s constitutional “sharp practice” has made it easier for the Prime Minister’s opponents to agree on legislation which may in fact have stymied the Prime Minister.

On the other hand the unusually long prorogation has reduced the amount of Parliamentary sitting days. There is a more to Parliament than passing legislation. An equally, perhaps even more, crucial function is to hold ministers to account: to force them to answer questions and to explain themselves. If Parliament is not sitting, that cannot happen, no matter how urgent the situation.

In the view of the Divisional Court, it is not open to the courts to inquire into the reasons for prorogation, in essence because it was a “political” decision and the courts should stay out of politics. As the Court put it:

“… even if the prorogation under consideration in the present case was … designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review.”

“… the purpose of the power of prorogation is not confined to preparations for the Queen’s Speech. It may be used for a number of different reasons, as, on the evidence, it has been in the present case. Such reasons may, depending upon the precise facts and circumstances, extend to obtaining a political advantage.”

If the Supreme Court upholds the Divisional Court’s ruling that prorogation is “non-justiciable” the power of the executive will be increased. This government, and future governments, will be empowered to use its great power of prorogation more often for political purposes.

4. Is the prorogation justiciable?

There seem to me to be at least two problems with the Divisional Court’s approach.

First, there may be multiple reasons for a prorogation, and for its particular timing and duration. The fact that some of those reasons may be legitimate does not determine that the decision itself is legitimate.

On normal principles of administrative law, a decision of the Executive may be unlawful if irrelevant matters have been taken into consideration, even if relevant matters have been as well. If a minister changes the route of a proposed motorway partly because it will run across his deer park and spoil his view, that may well make his decision unlawful, even if there were legitimate reasons in his mind too.

In this case, matters such as the desire to introduce fresh legislation, to bring a “tired” session of Parliament to an end, and to set out a course for the new Government in a Queen’s speech were no doubt all considered. Nobody disputes that these would have been proper considerations. But what if, in addition, other considerations included a desire to prevent Parliamentary scrutiny, to stop ministers being held to account, and to prevent Parliament passing emergency legislation? The Divisional Court largely avoided this question.

Secondly, to say that relevant considerations for proroguing Parliament “may depending upon the precise facts and circumstances extend to obtaining a political advantage,” begs a question. In fact it begs two related questions:

(i) What is meant by “a political advantage”? Closing down Parliament for a few days in order to announce popular legislation in a Queen’s speech might be carried out to obtain a political advantage, and no court would bat an eyelid. On the other hand it would be remarkable if the Courts could not intervene in the case of a Government closing Parliament for months on end because it had lost, or feared it might lose the confidence of the House of Commons. To say that “obtaining a political advantage” can be a legitimate purpose of prorogation does not in itself take us very far.

(ii) What are the “facts and circumstances” which, the Court implied, could render a prorogation intended to obtain a political advantage illegitimate or unlawful? Unlike the Court of Session, the English court did not answer that question.

The Divisional Court acknowledged that almost all decisions by the Executive “have a political hue to them,” but said that:

“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.”

I find this rather hard to understand. What are these “judicial or legal standards”? The Court was following a line of authority in which the absence of such standards was held to be indicative of “political” decisions, immune from court scrutiny. But in none of the cases cited was the executive purporting to suspend Parliament. Is not the existence of a Parliament itself one of the most fundamental legal standards? Can it really be lawful to rule without Parliament for long periods of time? Wasn’t that question decided in the seventeenth century?

Where, on the Divisional Court’s anlaysis, does the “political” test leave the courts if they were to be faced with the hypothetical example of a Government proroguing Parliament for several months because it wanted to stay in office after losing its Parliamentary majority? Nothing could be a more political decision – but it would be a feeble court that refused to intervene in what would be a shocking abuse of power because there were no “judicial or legal standards” by which to judge its actions. The judges failed to answer the question. They said “we do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples,” although they were careful to make clear that that their actual decision was based “on the circumstances and on the facts of the present case,” thus leaving a little wriggle room for a hypothetically more extreme case.

The Court of Session started from a similar point, that the Court should not normally intervene in purely political questions. However, the three Scottish judges recognised that the political nature of a question could not be conclusive. Strikingly, many of the authorities to which they referred were English, not Scottish. Citing the opinion of Lord Sumption¹ – famous now for his Reith Lectures in which he warned at some length about the dangers of law encroaching into the realm of politics – the Court of Session reached a different conclusion on justiciability:

“In reality [there is] a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference.”

In a Parliamentary democracy there are few more important rights than that of Parliament to sit and scrutinise Executive actions. For this reason particularly “cogent justification” is required for such an interference. The justification supplied by the Government was contained in various Cabinet papers and in the memo of Nikki da Costa, the Prime Minister’s Director of Legislative Affairs. None of them explained why a prorogation of 5 weeks – as opposed to the usual much shorter time – was required. There was, as David Allen Green amongst others have pointed out, no affidavit or witness statement from the Prime Minister explaining this either. Far from being cogent, there was no justification at all. As a result the court could infer that the true purpose of the unusually long prorogation was indeed to “stymie” Parliamentary debate and scrutiny.

Lord Brodie also referred to a book chapter written by the English judge Lord Justice Sales. In it, Sales had referred to a group of cases in which the Courts had been prepared to review executive and prerogative decisions. The common feature, Sales wrote, was that they were:

“… egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities.”

This, in the view of Lord Brodie, was such a case. The author of Crown Powers, the Royal Prerogative and Fundamental Rights², will have an opportunity to say on Tuesday whether Lord Brodie understood his chapter correctly. Now promoted to Lord Sales, he is one of the 11 judges due to sit in the Supreme Court.

5. Will the Supreme Court go behind the Government’s assertions?

Practically everyone believes that one purpose of the prorogation – given its unusual length and timing – was to reduce the amount of Parliamentary time available for debating Brexit. The Divisional Court concluded that because the decision was political it could not adjudicate on the issue.

The Court of Session was not so timid. Its view was that the prerogative could be reviewed by the courts in exceptional cases. Indeed, counsel for the Government in the Court of Session conceded that a decision to prorogue for 2 years would be such an exceptional case (as far as I can see no such concession was made by counsel in the English case). Although “procedural manoeuvres are the stuff of politics,” on the facts of this case it was possible to infer that one of the purposes was to “stymie” Parliamentary debate on a matter of crucial national importance, so that this was indeed an exceptional case. The advice to prorogue was unlawful either because it was “irrational” or because it was made for an improper – indeed an “egregious” – purpose.

For what it is worth, I think that the Court of Session’s arguments are more persuasive. The characterisation of prorogation as “non-justiciable” cannot, and certainly should not, be correct. The power to suspend Parliament is a potentially fearsome weapon in the hands of a determined executive. Without Parliament, the courts are the last defence against tyranny. There must be at least some circumstances in which the power to prorogue can be challenged in court.

That does not necessarily mean that the Supreme Court will rule that the Government acted unlawfully. It is one thing to establish the principle that a decision to prorogue may be questioned in the courts. It is another to say that this particular prorogation was unlawful.

We are miles away from Fascism and tyranny. We are miles away from the wild hypotheticals of a Government trying to rule for months without Parliament. Whatever the intent of Mr Johnson and Mr Cummings, the practical effect of the prorogation has not been to increase but, if anything, to diminish the power of this particular Executive. The number of days of Parliamentary sitting actually curtailed by the prorogation are modest. The instinct of the Supreme Court should be to keep itself out of politics as far as possible, although whatever decision it makes will be seen as political by some.

If I had to predict the outcome of the case – and frankly you might as well ask me to pick the winner of the Prix de l’Arc de Triomphe – I would say that the Supreme Court is likely to over-rule the Divisional Court on the question of justiciability. To go further and hold that in this particular instance Mr Johnson’s advice to the Queen was so egregious that the court should rule it unlawful might be a step that it is not willing to take.

5. Government supporters should be careful what they wish for

It is not impossible that within weeks Mr Johnson’s administration will fall and be replaced by one headed by Jeremy Corbyn, perhaps in an arrangement of some sort with the Scottish National Party. It could be the most left-wing in our history. It will aim to push through the most radical and controversial policies and will have little regard for tradition and convention. If his Parliamentary majority is small, Mr Corbyn, like Mr Johnson, could then be tempted to try to use his prerogative powers imaginatively. Seamus Milne is just as determined as Dominic Cummings, and probably just as clever.

Should the Supreme Court uphold the Divisional Court’s ruling that the prerogative of prorogation is “non-justiciable” Mr Corbyn, or some equally radical successor, would be both enabled and emboldened to use it – and no doubt other “non-justiciable” prerogative powers too – to overcome and evade Parliamentary opposition. Conservatives and liberals alike must hope that the Court will make it clear that Mr Johnson’s brazen attempt to evade Parliamentary scrutiny by draping himself in the decayed raiments of an absolute monarch are inconsistent with Parliamentary sovereignty, inconsistent with Parliamentary democracy, and inconsistent with the rule of law on which our freedom depends.