Ewan McGaughey: Is There a ‘Legal Measure’ to Judge Parliament’s Prorogration?

A central theme of the High Court judgment in Miller v Prime Minister  is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court to assess by any measurable standard how much time is required “to hold the Government to account”’ (at [57]). Is that accurate?

Arguably the proper approach to this question was set out in R (UNISON) v Lord Chancellor. There it was held that an Employment Tribunal fees order was ultra vires, taking into account the effect of fees in deterring claimants from accessing a public system of justice, a fact which itself affected the rule of law. According to Lord Reed, ‘the degree of intrusion [on access to justice] must not be greater than is justified by the objectives which the measure is intended to serve’ (at [88]). This principle was one of common law, but also ‘an analogy’ to the principle of proportionality. International law, in this case the case law of the European Court of Human Rights, was ‘revelant to the development of the common law’ (at [89]).

This suggests that the proper ‘legal measure’ flows from the government’s own objectives. So, in the case of prorogation of Parliament, does the prorogation intrude no more upon a constitutional principle than is justified by the objectives which it is intended to serve? Here it is plain that the relevant constitutional principle is Parliamentary sovereignty, ‘a fundamental principle of the UK constitution’ (R (Miller) v Secretary of State for Exiting the EU, [43]). It also affects the right to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’ found in the International Covenant on Civil and Political Rights 1966 article 25(a).

It follows that the established approach since UNISON is probably to ask:

  • What is the government’s aim in proroguing Parliament? If that aim is legitimate, then ask…
  • Is the government’s progrogation appropriate to achieve the aim?
  • Does the government’s prorogation go further than is necessary to achieve the aim?
  • Does the government’s prorogation strike a reasonable balance between its interests and society’s as a whole?

At each of these steps there is room for debate. It is first debated whether the government’s aim is in fact to prepare for the Queen’s speech, or whether its true motive is to frustrate the attempt of Parliament to block the government’s option of a ‘no deal’ Brexit. As the Queen in Parliament is ‘the great corporation or body politic of the kingdom’ (William Blackstone, Commentaries on the Laws of England (1765) a useful analogy in another kind of corporate law is found in Howard Smith Ltd v Ampol Petroleum Ltd. This held that company directors issued shares for the improper purpose of blocking a takeover bid, despite their claim that they aimed to finance the completion of tankers (approved in Eclairs Group Ltd v JKX Oil & Gas plc, [23] per Lord Sumption, the ‘leading modern case’). What is the true aim is an evidential question. Cherry v Advocate General, [53]-[58] has held that the true aim of prorogation is to ‘stymie’ Parliamentary scrutiny.

If, however, it is accepted that there is a legitimate aim, the court should then ask whether action taken is appropriate, necessary and reasonable. Here the clinching factor is likely to be ‘necessity’. Despite the High Court’s opinion that there is no ‘legal measure’, it would appear that the measure is precisely the government’s stated aim. It would seem not to be beyond the capacity of the court to determine whether time to prorogue Parliament is excessive or not, taking into account past practice. In this, it is up to the government to show that the ‘degree of intrusion [is] not be greater than is justified by the objectives which the measure is intended to serve’.

This is all the more important because the Bill of Rights 1689 article 1 states that ‘the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.’ It is an inherent part of logic, including in law, that reasoning ‘from the lesser to the greater’ (a minori ad maius) what is illegal in a minor way, must also be illegal when done in a major way. If a government purports not merely to suspend laws or their execution, but suspends the entire lawmaking body of Parliament, there must be good justifications. In this way, it is not clear why prorogation of Parliament should be considered a matter of ‘politics’ as ostensibly distinct from law.

Ewan McGaughey, Senior Lecturer, School of Law, King’s College, London

(Suggested citation: E. McGaughey, ‘Is There a “Legal Measure” to Judge Parliament’s Prorogration?’, U.K. Const. L. Blog (14th Sept. 2019) (available at https://ukconstitutionallaw.org/))