In a recent Times article, Lord Pannick QC – leading Counsel in the Miller litigation – argues that if a Prime Minister were to advise HMQ to prorogue parliament to achieve a No Deal exit, an application could be made to the courts to determine the lawfulness of such advice. Sir John Major said on the Today programme on 10 July that he would personally bring a judicial review of any decision by the Prime Minister to advise prorogation.

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

While Lord Pannick’s argument is characteristically attractively presented, there are some significant difficulties with it. Of course, it must be borne in mind that a brief 800 word article in a newspaper cannot do justice to the full argument.

Space precludes detailed consideration of issues of timing but suffice to say that Miller was incredibly expedited, including leapfrogging the Court of Appeal, but it still took six months.

A caveat on the potential use of prerogatives in the Brexit context

I have previously defended the theoretical possibility of the use of Royal Assent and Queen’s Consent in some extreme circumstances if there were unprecedented moves by a shadow executive undermining the procedures of the House of Commons. I have ultimately justified these responses because the remedy of a vote of no confidence remains available.

My view on prorogation is considerably more conflicted, precisely because any overtly political prorogation to avoid a vote of no confidence contradicts what I view as the central principle of the political constitution which is the doctrine of confidence. Parliament represents a dialectical relationship between the two balancing forces of executive and legislature, both of which we choose in our bifurcated vote at general elections. When we vote in the UK, we choose a local MP, but in reality we also vote on a manifesto and on a slate of those seeking executive office.

Justiciability

The most serious problem facing any potential litigation relates to justiciability. In his article, Lord Pannick lightly touches on case law relating to passports, ex gratia payments and other successful applications to the court for review of the exercise of prerogative power. Unfortunately, these examples fall on one side of a clear red line for the courts in terms of the kinds of prerogative that they are normally prepared even to consider.

In GCHQ, Lord Roskill famously listed a series of prerogatives that he held would remain outside the court’s purview even after the test set out by the court for judicial review transitioned from the source of the power to the subject matter of that power. Technically the list is obiter dicta, of course.

The Roskill list includes ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ (p418). The prorogation of parliament falls squarely within the category of prerogatives set out in this list. This is particularly true in this case because Lord Roskill states that it is prerogatives ‘relating to’ any of the above list that are in this category – this obviously includes prorogation which is historically connected to dissolution.

It is also worth noting that in the later case of Everett, a ‘high policy’ test for the prerogatives on the list was instituted, and that test has never been doubted. Indeed, in Abbasi, Lord Phillips MR expressly endorsed the ‘high policy’ test in considering the actions of the government under the foreign affairs prerogative.

Lord Phillips also used the phrase ‘forbidden areas including decisions affecting foreign policy’ ([106]) which also underscores the unlikelihood of any judicial intervention in matters as controversial and politically explosive as a political decision to prorogue parliament to achieve a No Deal exit. It is perhaps also worth mentioning that, in this particular case, a decision to prorogue would have direct and dramatic effects on foreign policy.

It is suggested therefore that prorogation would therefore fall well within the ‘high policy’ test given the intense political controversy that would surround such an action. It is therefore extremely challenging to see how such advice could be justiciable on any orthodox reading of long established case law. This rule arguably rests, in large part, on a point blank refusal to be drawn into controversial political matters. This deeply wise judicial instinct is strongly to be commended.

Argument from Miller?

It might be thought that the justiciability argument must be tempered by the fact that in Miller itself, a high policy prerogative (treaty power) was considered to be justiciable – indeed the justiciability argument was not even raised at the Supreme Court stage having been resoundingly rejected by the High Court. This would be to miss a crucial distinction between Miller and a potential prorogation. The courts have never held that a prerogative is non-justiciable when it is used in a way that intersects with a statute. In those circumstances, a completely different test is applied.

If statute overlaps with the prerogative, it goes into abeyance. Where a statute does not overlap, the test is whether the exercise of the relevant prerogative would frustrate the intention of parliament in any Act (Miller [51]). In such situations, the court is not concerned in any way with whether the nature of the prerogative concerns ‘high policy’. This is for the simple reason that statute trumps prerogative and it is the duty of the courts to see that the will of parliament as expressed in statute prevails. That is why the justiciability of the treaty prerogative was not an issue in Miller, despite it being on Roskill’s list.

Parliamentary Sovereignty means the will of parliament as expressed in statute

It is trite law that the will of parliament can only be understood through Acts of Parliament as a matter of law. Mere motions will not suffice. If they had, the motion in the House of Commons in December 2016, calling for notification under Article 50 to be sent, would have disposed of the Miller litigation.

Lord Pannick’s appeal, therefore, to the generic idea of ‘parliamentary sovereignty’ must therefore be approached with some caution. Parliamentary sovereignty means nothing more, and nothing less, than that each and every Act of Parliament that is on the Parliamentary Roll is supreme over any other law or legal power. In other words, whatever the Crown-in-Parliament formally enacts is binding law, save that Parliament cannot bind its successors.

It follows that if Lord Pannick could identify a particular provision of a statute that would be frustrated then the objections based on justiciability would immediately dissipate. Unfortunately, it is difficult to identify any such statutory provision. Instead, the much more nebulous language of ‘evading parliament’ is deployed. This leaves his argument looking somewhat thin.

The problem is that isolating a sound legal argument from ’evading parliament’ is difficult, whatever the constitutional and political arguments. This is not least because there is no particular statute to which reference could be made. Evading political scrutiny and debate is not a legal argument.

It seems unlikely that the courts would declare something unlawful based on it frustrating a provision of a non-existent Act that the courts would be predicting parliament might pass at some unknown time in the future. That would be to extend the principle in Fire Brigades Union by some distance, to put it mildly.

Lord Pannick goes on to claim that one aspect of the claim would be that, in his view, parliament has ‘made clear its wish to prevent a no-deal Brexit’. This particular claim is hard to follow. Nowhere in EUNoWA, EUWA or elsewhere has parliament made clear in legislation that in the event of there being no deal agreed with the EU27, the government is legally required to take steps to prevent the UK exiting the EU on  that basis. It is true that a number of motions of the House of Commons have expressed that sentiment or similar but that is entirely another matter and, strictly speaking, irrelevant as a matter of law.

It could be argued that the silence in relevant statutes on any legal steps to be taken in the extensive legislation that has been passed since the referendum simply reflects the fact that few people expected that No Deal could actually happen. This is a reasonable stance. Nevertheless, it remains the case that the Article 50 process is in fact inexorable and (leaving aside revocation) remains outside the direct control of parliament, particularly if, say, the EU27 decided not to grant another extension.

It is also the case that there are no provisions altering the legal default outcome (for example by mandating a revocation) in the event that there is no agreement with the EU27 regarding the orderly withdrawal of the UK from the EU. The only possible exception might be the Cooper-Letwin Act which mandated the Prime Minister to seek an extension from the EU27 (I am grateful to Gavin Phillipson for suggesting this point in conversation).

It might be argued that this represents evidence that the will of parliament is that a delay is preferable to exiting without a deal. The problem with this argument is that Cooper-Letwin was very specific in terms of how and when it applied and its provisions are now spent. Really, the Act needed to have made further provision for the legal consequences in the event of No Deal. Attempting to read anything more into that Act seems implausible.

However alluring is the argument that the courts could step in, it is difficult to see how the exercise of the prerogative of prorogation in this case could be said to conflict with any particular provision of any statute.

Breaking new legal ground 

Given the strength of the judicial dicta against Lord Pannick’s position, it would require an innovative and bold approach by the judiciary for any case to succeed. The courts would have to construct a novel rule that the mere possibility of Parliament wishing to pass some future legislation means that a purely political prorogation would be unlawful. This possibility cannot be ruled out but it would drive a coach and horses through long standing case law on justiciability, with unknown future effects.

Political controversy

The idea of the courts ensuring that parliament can do its core job of considering Brexit throughout the Autumn is undeniably attractive. It is suggested, however, that the courts would be rightly reluctant to intervene in such an intensely controversial political question, especially without the protection of an existing Act of Parliament that intersects directly with the relevant prerogative. To do so would be to draw the judiciary into the centre of a political firestorm. However politically controversial a prorogation might be, judicial intervention would only make the situation worse. Two wrongs do not make a right.

In those circumstances, reliance must be placed on the relevant parties being persuaded that advising HMQ to prorogue would be deeply politically and constitutionally inappropriate, rather than illegal or ultra vires.

Conclusion

This post has sought to address the possibility of litigation to challenge the lawfulness of using the prorogation prerogative politically. The proposal suffers from serious flaws, not least lack of time. It has been argued that the use of the prerogative of prorogation is not justiciable as ‘high policy’ in a ‘forbidden area’.

It has also been suggested that the argument that parliamentary sovereignty would be frustrated by prorogation is flawed because there is no particular statutory provision that would be frustrated by prorogation.

Furthermore, it seems highly unlikely that the courts would be drawn into what remains, in a political constitution, a matter of purest politics that should be dealt with by elected politicians, when parliament reconvenes, or at the ballot box.

The author would like to thank Richard Ekins, Sir Stephen Laws QC, Gavin Phillipson, Meg Russell, Catherine Haddon, Tom Poole and Colm O’Cinneide for their helpful comments and suggestions. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Judicial Review of Advice to Prorogue Parliament’, U.K. Const. L. Blog (12th Jul. 2019) (available at https://ukconstitutionallaw.org/))