Constitutional Law Group September 13, 2019 European Union, Judicial review, Scotland, UK government, UK Parliament

Timothy Endicott: Don’t Panic

The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is the representatives of the people (and the people themselves in an election) who ought to have, and to exercise, responsibility for holding the Prime Minister to account for misconduct in proroguing. If the judges were to accept the novel claims in Petition of Cherry and other/s [2019] CSIH __ and R (Miller) v Prime Minister No 2 [2019] EWHC 2381 (QB), and forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility.

And the present political crisis is no time to be changing the constitution. It would be better for the courts to adhere, in spite of the worst of political machinations, to a structure that is more sustainable and robust than people tend to remember. This is no time to panic, and judicialize the operations of Parliament.

Are these claims really novel?

The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law. And in the days before the Fixed Term Parliaments Act, it was never held to be unlawful for the government to stymie Parliament by a dissolution. But the claimants in the Cherry case and Miller No 2 (‘the claims’) rely on the most orthodox propositions of administrative and constitutional law (‘ordinary public law principles’, as the claimants put it in Miller No 2 [23]): that executive power cannot lawfully be used for improper purposes, and that Parliament is sovereign. The two arguments connect, of course: it is because of the sovereignty of Parliament, according to the claimants, that it is improper –and therefore unlawful– to stymie Parliament.

There is a strong allure in these arguments for judicial action against abuse of power. But I will argue that they only misapply the principles that demand judicial interference in the great improper purposes cases such as R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 and Padfield v Minister of Agriculture [1968] AC 997. To Professor Paul Craig and to others, it seems deeply unattractive to say that an abuse of power should not be subject to judicial control. But it is no accident that there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament.

The Inner House in Cherry held that the judges must prevent the Prime Minister from using prorogation to stymie Parliament. The English Divisional Court (like Lord Doherty in the Outer House of the Court of Session) held that the judges cannot do so: ‘that is not territory in which a court can enter with judicial review.’ [55] Suppose, as Nicola Sturgeon put it, that ‘The prime minister’s behaviour has been outrageous and reckless, and has shown a complete disregard for constitutional rules and norms.’ Or that, as Lord Brodie put it in the Inner House in Cherry, it was ‘…an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. Then what the Prime Minister has done is worse than many unlawful uses of executive power. You see the attraction –we can all feel it– in thinking that the judges must be prepared to step in.

But ‘executive power’ is not a thing that is subject to uniform judicial supervision. Lord Doherty at first instance in the Outer House in Cherry got the most important point on the table when he said that the judges’ role depends on the type of executive power: ‘The court’s role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise’ [13]. That dependency is at the heart of this case.

In Miller No 2, the claimant’s counsel, Lord Pannick, offered an account of the dependency: the courts have reason to be more or less cautious (and sometimes very cautious) in concluding that a power has been exercised for improper purposes [27], [37]. The Divisional Court held, instead, that ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts’ [68] (cf ‘the decision of the Prime Minister was not justiciable.’ [1]). And Lord Doherty ruled in the Outer House that ‘the claim is non-justiciable’ [13].

Justiciability and non-justiciability in administrative law are, primarily, properties of issues or questions, rather than of exercises of power, or of claims. In GCHQ [1985] AC 374, for example, the judges decided that they could not answer the question of whether there would be a serious risk to national security if the Prime Minister consulted the applicant Union. The Union lost because in order to decide in the Union’s favour, the judges would have needed to answer that non-justiciable question.

The ‘non-justiciability’ here is a different matter: it is a property of the decision to prorogue, according to the Divisional Court in Miller No 2 [1], [68]. Lord Doherty treated it as a property of the claim [26], [27]. It may be the case that non-justiciable political questions would need to be answered in order for the judges to say whether the Prime Minister’s purposes were proper. The judges of the Divisional Court in Miller No 2 certainly considered that such questions arose in the case; this would have been enough to justify their decision to reject the claim (as in GCHQ). But they held something stronger: that ‘The question of justiciability comes first, both as a matter of logic and of law.’ That is, it seems that they would not be prepared to pass judgment on the propriety of the Prime Minister’s purposes, regardless of the facts. Imagine that an alleged improper purpose involved no political question that judges cannot appropriately answer. There would still be no judicial review, on the Divisional Court’s approach. It is not just that the judges should be very cautious; they should not even ask, for the purpose of a challenge to the lawfulness of a prorogation, whether the Prime Minister’s purposes were proper.

That result –which seems intolerable to some lawyers, and to the claimants– is, with respect, exactly right. In the great cases on improper purposes in administrative law, Lord Pannick’s approach is a sound approach to the dependency of judicial review on the nature of the case: the judges should be more or less cautious, in answering questions that are less or more ill-suited to judicial decision. But in those cases, the power in question (to initiate a statutory inquiry; to spend overseas development money…) is not the Prime Minister’s power to regulate a Parliament that is responsible for his tenure in office, to which he is accountable, and on which he is utterly dependent. The dependency of the judicial role on the nature of the power is more radical than Lord Pannick’s argument suggests. It is a matter of constitutional principle that the House of Commons should have responsibility for responding to wrongdoing in the exercise of the Prime Minister’s power over its own proceedings.

The Divisional Court’s term, ‘non-justiciable’, needs disambiguating; lawyers use it both when it is more or less unsatisfactory for judges to base a decision on their own answer to some question, and also when it is unsatisfactory for judges to hear a claim, or to interfere with a decision. The Divisional Court’s reasoning in Miller No 2 is justified; the justification could alternatively be expressed accurately without using the word ‘justiciability’. It could be expressed by saying that the common law does not regulate the scheduling of parliament proceedings. As a result, the case that the prorogation was unlawful lacks its very first premise.

It would be an inauthentic contribution to democratic politics, if judges gave the Prime Minister their seal of approval for his truthfulness and for his purposes in a prorogation. Likewise, if they inflicted on the government their adverse take on this political move. It is not merely that the judges would have difficulty answering the questions at stake; it would be inauthentic because while any of us can pass judgment on a Prime Minister’s truthfulness and his purposes, the judges would be giving the binding authority of their court to their own answers to these questions of parliamentary politics. This form of ‘non-justiciability’ –as the Divisional Court called it– arises because the judges’ supervision would diminish Parliament’s responsibility for its own operation.

Extreme prorogation

Here is one potentially good argument for judicial interference: that it might be necessary in the interests of constitutional governance, where the Prime Minister is able to prevent the House of Commons from exercising the very form of control that, I have said, it ought to exercise. The argument is, as Jake Rowbottom has put it, that:

‘the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.’

That is not this case. Parliament was not stymied by the prorogation; it was energised. It legislated in three days to require the Prime Minister –against his headline policy– to seek an Art 50 extension. The House of Commons could have thrown his government out. It could have done so after the legislation was passed. The House could have agreed to either of the Prime Minister’s proposals for an early general election. There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct.

Now what if we imagine the worst: a prorogation sine die (perhaps to avoid a vote of no confidence). Do we need the courts to protect us from that? The government would run into the buffers of its own need, in the 21^st century, for frequent parliamentary sessions, and eventually the Fixed Term Parliaments Act would require a general election. But it would never come to that; ordinary day-to-day politics prevents prorogation sine die. No Prime Minister could hold together a party while doing that. There isn’t actually a need for judges to be on standby to fill in for a House of Commons that is prevented from discharging its own responsibility.

Conclusion

The House of Commons does not need the courts to take over its responsibility for holding the Prime Minister to account for scheduling sessions. The courts and the politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of Parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of Parliament’s proceedings.

In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford and Fellow in Law, Balliol College

(Suggested citation: T. Endicott, ‘Don’t Panic’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

9Comments

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1

mark hardy on September 13, 2019 at 2:05 pm
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s4 of The Judicial Committee Act 1833 made all such decisions jusiticiable – but only if the Monarch was the applicant.

Recent convention is that The Monarch is the applicant in all JR applications.

Methinks there should have been a single direct referral to the JCPC at the outset: – as there should have been in Miller(1) as was pointed out at to all parties at the time. Going via the Admin Court and the lower Scottish Courts was/should never have been necessary.

If the JCPC is bound to agree that justiciability has been determined by statute, is the SC so bound next week?
2

Lacan (@worldcitizenzen) on September 13, 2019 at 2:10 pm
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I am not a constitutional lawyer or even a UK lawyer. So my comments below must be taken with a grain of salt.
With respect, the problem with Mr Endicott’s argument is that on previous occasions
if the PM of the day asked the monarch to prorogue Parliament
the monarch could be confident that the PM had the support of the majority of
Parliament in doing so,

But Mr Johnson no longer has a majority. Not even close.

The Queen would have been within her rights to tell Mr Johnson to go back to Parliament and get a
resolution from Parliament supporting prorogation.

But the Queen is now an elderly frail woman. She couldn’t reasonably be expected to send Mr Johnson back to Parliament for the necessary resolution.

In all the circumstances it was wrong of Mr Johnson to ask for prorogation when he did.
3

Philip on September 13, 2019 at 2:42 pm
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“No Prime Minister could hold together a party while doing that. ”

With all due respect this is a great act of faith. It replies on the integrity of the PM party. Remember Liz Truss and Kwasi Kwarteng comments on the judiciary? If the party saw significant advantage in not having parliament meet the party would stay together. Also if parliament IS suspended how is the executive removed ?

Not a fair example but follow what the Republican Party in the USA stood for before Donald Trump. The party is still together
4

Jim W on September 13, 2019 at 3:06 pm
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It seems to me that your arguments here were carefully considered and rejected (in different ways) by the three Inner House judges, whose detailed Opinions I note you quote and address rather sparingly.

Do you have any answer to their counterarguments?

Paragraphs of particular relevance to your line of reasoning here are 50-53 & 58 from Lord Carloway, 75, 83-87 & 90-92 from Lord Brodie, and 96-108 from Lord Drummond Young.
5

derryvickers on September 13, 2019 at 3:24 pm
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Dear Prof Endicott
I quote from the conclusion:
“In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.”
Apologies I’m not a lawyer; just an interested bystander to these articles.
It may be naive, but I find:
1. As I understand it the Executive is the operational arm of the Parliament. No more and no less. The Executive is there because you can’t have 300 members running the government.
2. The Prime Minister is elected by the Parliamentary Members. The one elected is usually chosen from the group that has the largest party. (The party approach came in ?400 years ago). This is not the case for the present Prime Minister – he just took over.
3. The group / cabinet that helps the Prime Minister is chosen by him and usually comes from the same party. Though this is not always the case as in WW2.
4. The Parliament, if it is unsatisfied with the operation of the Executive, can vote the Prime Minister (and presumably his Cabinet) out of office and can attempt to find a new Prime Minister. Failing that there is a new election.
5. However, to do so the Parliament must be sitting to hold a vote of no confidence.
6. In the present situation the Prime Minister, expecting such a vote of no confidence, bearing in mind the number of MPs stacked against him, decided to close the Parliament
7. It is in his power to do so and formally he informed the Queen that he was proroguing Parliament.
8. In the letter to the Queen the Prime Minister expressed the view that he wanted to set down his new stall and she should do so on his behalf.
9. From my naive point of view this appears to ‘be not playing the game’
10. It is unclear to me why he needed the Queen to do so but that is an aside in respect of my point 6 above.
11. I note that the Prime Minister has vehemently stated that he did not lie to the Queen and I expect he was too careful to have done so in writing, but to me it is clear his letter was ‘Economical with the Truth’.
12. Whilst I would wish the Supreme Court to come to my supposition that the Prime Minister was Economical with the Truth and therefore, that Parliament was incorrectly prorogued and unable to do its job on behalf of the Country, I find asking the Supreme Court come legally to this conclusion would require it to act politically. And this would be a dangerous breach of its role.
13. Whether a written constitution would have foreseen this situation is unclear to me.
14. But, as I see it, the present power of the Executive with respect to the Parliament needs to thoroughly review. A follow up to the Glorious Revolution of 1689?
But, as you say, too late for the present grim situation.
6

Tom Spencer on September 13, 2019 at 4:30 pm
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It is respectfully submitted that the above post recognizes neither the curiality of Parliament, nor the participation of the British supreme court in the sovereignty of Parliament since the Revolution of 1688.

Parliamentary responsibility for executive power originated as the sovereignty of “Parliament”. The executive power remained monarchical and yet was required to act ultimately through the whole independent High Court of Parliament, rather than outside of it as James II had purported to do when suspending anti-Catholic legislation. Crucially, the supreme court of England and Wales was part of the High Court of Parliament (as the Crown and Parliament Recognition Act 1689 called it), because the barons sat as that supreme court, in addition to also sitting as the upper house of the legislature. Thus, the sovereignty of Parliament originated as the juridical sovereignty of the High Court of Parliament, rather than Parliament now being in danger of “judicialization”.

The supreme court of England and Wales was part of “Parliament”. Therefore the statement that “The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law”, seems qualified by parliamentarians refusing to take a break in 1629 when ordered to by Charles I (https://theconversation.com/brexit-boris-johnson-would-prorogue-parliament-at-his-peril-just-ask-charles-i-120293). If so the High Court of Parliament itself offers authority against the proposition that “there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament”.

The above proposes recognizing the sovereignty of Parliament as involving the High Court of Parliament independently reviewing and authorizing executive power, since 1688. Outside of the High Court of Parliament, the monarch or parliamentary executive is merely asserting its supreme political power, like James II before the Revolution of 1688. If so, then GCHQ [1985] AC 374 and other decisions such as Lord Doherty’s holding in Cherry can be distinguished as not mentioning or otherwise recognizing the curiality of Parliament, a supreme court and legislature. Further, rather than claimants such as the plaintiffs in Cherry having to prove that courts can review prerogative power, which is said to be “dependent on the nature and the subject matter of the power or its exercise”, the respondent bears the burden of demonstrating precisely when, after the Glorious Revolution, the High Court of Parliament lost that capacity.

But if I may “cut to the chase”, it is said that “There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct”. Instead the prime issue is submitted to be that when Mr Johnston requested a prorogation from the Queen, he did not have a clear majority in the House of Commons. He purported to participate in the Crown’s prerogative of prorogation outside of the High Court of Parliament, while lacking the Commons majority inside the High Court of Parliament that by convention founds his very right to constitute the executive power, participate in the Crown, and so request prorogation. Like James II he purported to exercise executive power ultimately outside the High Court of Parliament, rather than inside it. Mr Johnston juxtaposed the Crown’s sovereignty of executive power outside the High Court of Parliament, as superior to the Crown’s sovereignty of executive power inside the High Court of Parliament. It was both an attack on the sovereignty of Parliament, and an attack on “the indivisibility of the Crown” a discarded doctrine that is urgently in need of revival.
7

Paul W on September 13, 2019 at 6:28 pm
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Whilst matters of ‘high policy’ and ‘political’ issues may normally be non-justiciable, it is not obvious why the power to prorogue should be one of them. Why is the power to prorogue in the hands of the Executive at all? For instance, sessions of the US congress are not determined by the President. https://en.wikipedia.org/wiki/Procedures_of_the_United_States_Congress
The Bundestag must be convened if one third of its Members so demand.

Click to access 80060000.pdf

The only reason this Executive power in the UK has not been in issue before is that by and large the power has not been exercised improperly. The nearest example is the prorogation to enable the Parliament Act 1949 to be passed, a piece of legislation whose validity was anyway in some doubt until the Hunting Act case.

Prof. Endicott may say that Parliament was energised by the deadline, but it was only able to pass legislation at high speed without due time for proper examination. Parliament was stymied from acting calmly.

What surprised me is that Parliament didn’t use the time to pass legislation to take control of the power to prorogue. Prof Endicott asserts that “the present political crisis is no time to be changing the constitution”. But history tells us that crises are exactly the time that constitutions get changed. This is just the time when Parliament should have grabbed control of its own sessions. The opportunity won’t soon arise again.
8

Jerzy Kolodziej on September 14, 2019 at 1:06 pm
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“Forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility” is problematic. Rather than the courts binding parliament, the ruling would merely give parliament the opportunity to debate prorogation. It seems to me to be self evident that parliament can choose not to sit during the period of prorogation and the Inner House’s ruling in no way disrupts the responsibility as you claim. Indeed, that argument was explicitly referred to in the published ruling. It not sufficient to suggest that parliament had the time to debate prorogation and legislate to prevent it. With the limited time available parliament had to choose what was the best course of action within the limited time available. It would seem to be a reasonable conclusion that MPs have a statutory right to debate matters. Namely:

“That for redress of all greivances and for the amending strenthneing and preserveing of
the lawes Parliaments ought to be frequently called and allowed to sit and the freedom
of speech and debate secured to the members”

It is of further doubt that there is a clearly defined rule that the prerogative is beyond the reach of review. In fact, there were numerous cases referred to that seem to suggest that the court has taken a different view in many other cases.

I agree the question of justiciability substantially turns on the subject matter. By extension, the court cannot easily separate justiciability from the context of the situation. The court should not simply take the view that they should abstain because of some vague notion that certain matter are better decided by parliament. In fact the court often is asked to decide matters of this nature. It is always open to the court to consider that a law or a prerogative is being used fro an improper purpose.

However, I do not think that any of these matters are the central issue or ones that have been properly addressed by the courts thus far (with the exception of Miller 1). The real question that needs proper judicial attention is whether there prerogative has been limited or extinguished by parliament through statute.

The courts have universally held the old constitutional statutes to be of vital importance to the protection of our constitutional principles. The courts have even gone so far as to rule that the constitutional statutes are not subject to the doctrine of implied repeal. However, on the other hand they invariably take a very narrow interpretation of the provisions within those statutes. These provisions are often vaguely dismissed by reasons such as lack of precision drafting or that parliaments purpose and intention was a hostage of the times that the laws were written and no longer directly applicable to our modern circumstances. Nor doubt these reasons are good reason for the judiciary to exercise care in the interpretation of old statutes. However, it does not seem to be justification treating them as being meaningless. I find it objectionable that the courts do not take into account that all of the old statutes that remain on the books are there because parliament has chosen for them to remain there in original or amended form.

I have long argued that the court’s treatment of old statutes amounts to judicial activism that fails to recognise the the will of parliament is contained within the words that have been chosen to be enacted and remain our law.

As the the Inner House stated in their ruling the prorogative only remains to the extent that parliament has not limited it. That much is settled law and beyond debate. It was therefore surprising that the courts have not recognised the public and private right of MPs to sit in their place or consider that such a right must inevitably limit or extinguish the prerogative to suspend that right.

The Bill of Rights and the Claim of Rights followed a period of instability. One of primary causes of the instability was the King was in the habit of suspending parliament and making law or unmaking law without consent. As Francis Bennion was fond of saying, one of the methods of interpreting statute is to investigate what mischief that the statute was intended to resolve. In the case of the Bill of Rights and the Claim of Right, the mischief of suspending parliament and its suspension of laws was one of the central reasons for their enactment. It is utterly absurd to now suggest that these act are not intended to limit the suspension of parliament. It is equally absurd to suggest that the wording of the provisions do not invite the court to decide whether the right of parliament to sit has been interfered with.

I would further suggest that far from being a matter of high political policy, prorogation is a simply an administrative decision to end a session and not a political matter at all. In these circumstances it is not only appropriate, but the duty of the court to decide whether prorogation has been used for improper purposes.
9

Stephen Tierney: Prorogation and the Courts: A Question of Sovereignty – UK Constitutional Law Association on September 17, 2019 at 12:40 pm
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[…] advantage, to rely upon an inherent ‘sovereign’ prerogative power of the Crown-in-Parliament to control its own proceedings will have rendered this power subject to an unprecedented level of judicial control; thereby […]