Constitutional Law Group September 16, 2019 European Union, Judicial review, UK government, UK Parliament

Hasan Dindjer: Prorogation as a Breach of Parliamentary Sovereignty

Does proroguing Parliament under the present circumstances breach the principle of parliamentary sovereignty? The Divisional Court in Miller v Prime Minister (‘Miller (No 2)’) thought not. It held that the principle is not wide enough to be threatened by prorogation ([63]-[64]). I argue here that this conclusion rests on too narrow a view of parliamentary sovereignty. That principle, I propose, is best understood to include—or imply—the proposition that Parliament must have meaningful opportunities to legislate on matters of vital public importance. A prorogation which denies it such opportunities, absent sufficient justification, is an unlawful breach of parliamentary sovereignty. Although I do not consider the Prime Minister’s reasons for prorogation in the present case (and hence not the decision’s overall lawfulness), I suggest he faces a heavy burden of justification.

Two views of parliamentary sovereignty

In Miller (No 2), the Prime Minister advanced ([59]), and the Divisional Court apparently endorsed ([62]-[64]), what we might call the narrow view of parliamentary sovereignty. Its two main, Diceyan principles (with immaterial caveats omitted) are:

Plenary Authority: Parliament may legislate on any subject-matter and may enact into law any content whatever.

Legal Supremacy: Laws duly enacted by Parliament are binding on all within the jurisdiction and override any contrary legal norms (including those previously enacted by Parliament).

The first principle concerns the breadth of Parliament’s legislative power, while the second concerns the legal effects of its exercise. Neither, on the narrow view, has to do with the conditions under which Parliament must be able to exercise its powers.

In contrast, what I shall call the broad view understands parliamentary sovereignty to include (or imply) a further aspect:

Meaningful Legislative Opportunities: Parliament is sovereign only if it has meaningful opportunities to exercise its legislative powers. Denying it such opportunities without sufficient justification is a breach of parliamentary sovereignty.

Something of the spirit of the broad view is perhaps detectable in the Bill of Rights’ requirement that ‘Parliaments ought to be held frequently’—but this is extremely undemanding by modern standards: as Blackstone records (Commentaries, Vol 1, 149), the Meeting of Parliament Act 1694 specified that every three years was frequent enough.

The argument for the broad view is not historical. Instead, it seeks to understand the basis and implications of the modern legal principle of Parliament’s supreme, plenary authority, as it exists now in the constitutional democracy of the United Kingdom.

Legal powers and the conditions for their exercise

The argument proceeds from the nature of Parliament’s plenary legislative authority. Parliamentary sovereignty protects a power—a power of Parliament to enact law as it sees fit on any subject. But the law does not in any true sense protect a power unless it also protects the conditions for its meaningful exercise.

The courts are familiar with the idea that rights and principles of constitutional law must not simply be honoured formally but be made meaningful in fact. That is the standard approach to the interpretation and application of fundamental rights, both in domestic law and under the ECHR (see e.g. UNISON at [109]). Similarly, the law regulating prerogative powers ensures that statutes remain in ‘effectual operation’, rather than being made ‘redundant’ or ‘useless’ (Miller (No 1), [51]). There is no reason why the same approach should not apply to rules of structural constitutional law. A legal power that is fundamental to the constitutional order must be interpreted so as to be meaningful and effective.

Parliament’s plenary power to legislate implies, therefore, legal protection for the conditions that are necessary for it meaningfully to be exercised. The central such condition is that Parliament be permitted to sit for long enough and at such times as to address matters of substantial national importance. Typical, short, prorogations are unproblematic. But if Parliament stands prorogued at length while major issues cannot be addressed, and time is of the essence, it is denied meaningful opportunities to exercise its plenary legislative power. Though this meaningful opportunities principle does not necessarily constitute an absolute prohibition on such prorogations, it must at least require that they be supported by compelling reasons. I return to the principle’s application below.

It might be countered that the principle of plenary authority contains an implicit proviso, applying only when Parliament is sitting, so that prorogation does not affect Parliament’s plenary authority properly understood. Yet this interpretation, first, implies constitutionally outlandish results and, second, is incompatible with the normative basis on which the parliamentary sovereignty principle is endorsed by the courts.

To illustrate the first point, consider some more extreme possible cases of prorogation, as where the government advises that Parliament be prorogued:

(A) for many months to head off the possibility of embarrassing defeats as it tries to negotiate a complex treaty;

(B) because it fears defeat on a particular bill that is being debated and seeks to stop its passage through Parliament by a certain date;

The Divisional Court’s aversion to ‘extreme hypothetical examples’ ([66]) notwithstanding, such examples are, in fact, revealing. For they describe what any plausible account of constitutional law must treat as unlawful uses of prerogative power. Such prorogations would reverse the constitutional settlement by nullifying Parliament’s supremacy over the executive and its ability to legislate. Quite apart from any improper purpose—which is probably not present in the hypothetical scenario (C)—prorogations like these would be unlawful precisely because they would make it impossible for Parliament to legislate as it saw fit for substantial periods of time. That is, such prorogations would breach the principle of plenary authority. It follows that that principle is not confined to circumstances where Parliament is already sitting; it applies generally. That explains why excessively long prorogations threaten Parliament’s sovereignty—and that may be so even when a prorogation is not as egregious as in these examples.

This conclusion is supported from another direction. The normative basis for the courts’ treating Parliament as sovereign is the value of democracy. In British Railways Board v Pickin, for example, Lord Simon noted that the ‘system by which…those liable to be affected by general political decisions have some control over the decision-making is parliamentary democracy’, whose ‘peculiar feature in constitutional law’ was ‘the sovereignty of Parliament’ (798E-G). Or, as Lord Hope put it in Jackson (at [126]) parliamentary sovereignty is ‘built upon the assumption that Parliament represents the people whom it exists to serve.’

As with any other principle of constitutional law, the legal rationale for parliamentary sovereignty bears on its proper interpretation. That parliamentary sovereignty is taken—surely correctly—to realise the value of parliamentary democracy tells strongly against any reading of the plenary authority principle which makes parliamentary sovereignty an irrelevance whenever Parliament is prorogued. For Parliament to fulfil its democratic function in a fast-moving world, it must be able to legislate and therefore to sit without being suspended for long periods. It is not enough that it be able to legislate while sitting, if its ability to sit is itself curtailed. If the concept of parliamentary sovereignty is to embody its democratic rationale, then, it must protect sufficient opportunities to sit and legislate on questions of vital public importance.

A legal requirement

If this understanding of parliamentary sovereignty is right, is there a further problem of establishing a ground of judicial review which might apply to an unduly long prorogation? I do not think so. After all, parliamentary sovereignty is a legal rule of the constitution, and the argument here is that one aspect of it must be a prohibition on certain unduly long prorogations. If, alternatively, one understood this prohibition as free-standing (rather than as an aspect of parliamentary sovereignty) that would make it no different from other rules of constitutional law which directly prohibit the use of the prerogative in certain ways, such as to frustrate Acts of Parliament.

One might also understand the relevant ground as breach of constitutional principle. It is well established that breaching a common law right can be unlawful—a matter sometimes treated by the courts as a distinct ground and sometimes as an aspect of reasonableness review, in appropriately heightened form as context demands (see e.g. Kennedy [51]-[54]). It should make no difference whether what is at stake is a fundamental right held by an individual or a fundamental duty of constitutional law which happens to be owed to the public at large (not least given the inter-connection of these two types of norm (see UNISON at [66]-[70])). Understood as the potential breach of a constitutional principle, prorogation would be—as the claimants argued before the Divisional Court—‘unlawful unless it can be justified as reasonably necessary to meet a legitimate objective’ (UNISON, [89]).

Robust scrutiny

However precisely the legal complaint is categorised and the test formulated, judicial review of a long prorogation ought to attract robust judicial scrutiny. The Divisional Court disagreed, on the ground that the challenged prorogation was political and involved high policy [60]. Paul Craig and Mark Elliott have persuasively addressed this issue in the context of the court’s approach to justiciability. I add the following points concerning the intensiveness of substantive review.

First, the starting point should be that there is an alleged breach of a foundational constitutional rule, which should attract searching scrutiny just as where what is alleged is the breach of a fundamental right. Second, although the courts often defer to the executive on high policy decisions, courts also properly defer to Parliament and strive to protect and give effect to its legislative authority as far as possible. The political nature of the issue should not, therefore, redound to the benefit of the Prime Minister as against Parliament. Third, the very features that make prorogation political are also in part those which make it constitutionally suspect. What could be more political than what the claimants allege—undermining the democratic process by suspending the legislature? The problem is that constitutional subversion, deliberate or otherwise, is high policy par excellence—and yet its (arguable) presence calls for judicial vigilance, not acquiescence. Fourth, proroguing Parliament makes the normal channels of political constitutionalism largely defunct. As the Inner House effectively acknowledged in Cherry ([106]), this makes the case for legal intervention stronger (or the case against it weaker).

Finally, asking how long is plausibly required to prepare for a Queen’s Speech does not, in fact, involve a uniquely inappropriate form of judicial scrutiny. Whether a decision is required to further a policy agenda, given its costs and the available alternative, is just the sort of question that is the mainstay of judicial review. More generally, courts frequently decide whether a length of time is excessive, given the legal and constitutional principles at stake—for example, whether a criminal sentence was too long, whether a decision-maker gave an affected person sufficient notice, or enough time to respond to a consultation. Reasoned judicial decision is not precluded in such cases simply because no legal rule prescribes ex ante a perfectly precise cut-off.

Conclusion

What parliamentary sovereignty demands by way of meaningful opportunities to legislate is naturally context-dependent. The present context could hardly be more urgent. Parliament faces an issue of momentous national significance, with a new Prime Minister pursuing a new policy that has not been tested in a general election. Although Parliament will have a chance to vote before the 31^st of October, it will be shut out of the process as it unfolds in most of the intervening period. That process may have many unpredicted twists and turns. It is impossible now to judge whether there might be changes in the position of the EU27 or of particular Member States, or in the actions or stated intentions of the Prime Minister. Parliament might in this period have found it necessary to react rapidly to this dynamic situation—perhaps in ways that would decisively shape the course of negotiations and therefore any possible deal or extension. By the time it returns from prorogation, a full month later, these opportunities may have passed. The Divisional Court’s observation (at [57]) that Parliament can act swiftly when needed does not answer the point. Parliament stands to be denied the opportunity to act at all when it might matter most.

I am grateful to Timothy Endicott for his comments on an earlier draft.

Hasan Dindjer, Examination Fellow, All Souls College, University of Oxford

(Suggested citation: H. Dindjer, ‘Prorogation as a Breach of Parliamentary Sovereignty’, U.K. Const. L. Blog (16th Sept. 2019) (available at https://ukconstitutionallaw.org/))

10Comments

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1

Kieran Fitzpatrick on September 16, 2019 at 11:38 am
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Excellent analysis overall, but I disagree slightly with your conclusion. In this specific case, parliament aquiessed in its own suspension, by failing to try to pass an Act, seeking to shorten the period of suspension already prescribed. Parliament failed to exercise its proclaimed supremacy.
A different test of justisibility might be considered?
The court should be reluctant to intervene, if a person (or parliament, in this case) has failed to deploy a non judicial remedy, which was easily accessible. Also, parliament could assign a power, via a mechanism, to suspend itself in emergency situations, such as signing a petition by a set number of MPs. I agree that prorogation should be justicible, but scrutiny should be made only when parliamentary power is clearly sought to be usurped.
As a by the way, former CJ Thomas Bingham suggested that the courts could overrule parliamentary supremacy if Parliament sought to disrupt the rule of law. In the broad view of constitutionalism, Parliamentary supremacy is the antithesis of democracy.
- 2
  
  Malcolm Ramsay on September 17, 2019 at 11:09 am
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  “In this specific case, parliament aquiessed in its own suspension”
  
  It’s good to see someone else making that point. In my view, though, they didn’t even need legislation to overturn it – a ‘humble address’ from MPs to the Queen, requesting that she rescind the prorogation order, would almost certainly have rendered it constitutionally void.
  
  “The court should be reluctant to intervene, if a person (or parliament, in this case) has failed to deploy a non judicial remedy, which was easily accessible.”
  
  I agree, but it’s complicated in this case by the fact that Parliament is an agent for the public at large, and not just acting in its own interest; the agent’s negligence means that the public are without representation during the period of the prorogation.
  
  Valid arguments both ways, it seems to me. I’m glad I don’t have to decide.
3

Kieran Fitzpatrick on September 16, 2019 at 11:42 am
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Correction : Re above comment – meant to say, parliament could un – suspend itself.. Rather than suspend.
4

Aaron Nelson on September 16, 2019 at 11:48 am
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I think, as the High Court concluded, that this would be an extension of the concept of Parliamentary Sovereignty as we have generally understood it, and I’m not convinced that is the best way to proceed.

What is at issue here is the ambit of the prerogative power of prorogation. I think of prerogative powers as a forest of (largely historic) privileges, gradually being cut down by the legislative axe. (I prefer this to the “privilege as a floor carpeted over” analogy because (i) it allows individual “prerogative trees” to disappear, without implying any diminution of, or impact on, the others); and (ii) I have some doubt that a prerogative simply “reappears” once the legislation is repealed (i.e. the carpet is lifted) – it seems to me, rather, that a particular prerogative tree may or may not “grow back” once the legislation is repealed, depending on the wider legislative environment).

In this case, the prerogative re prorogation hasn’t been cut down by Parliament. Parliament could, of course, do so, and perhaps it should, if it has a real and genuine concern that its ability to exercise its constitutional role has diminished. That would be an expression of Parliamentary Sovereignty as it has generally been understood, and would be a far clearer “removal” of the PM’s prerogative than for the courts to expand Parliamentary Sovereignty as a concept to require Parliament to sit (or not be prorogued) during ill-defined “time of national crises”.
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Lacan (@worldcitizenzen) on September 16, 2019 at 11:50 am
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Thank you Mr Dindjer. So interesting. As a non-expert may I suggest that a relevant aspect is that during the term of a prorogation the Parliament is deprived of its right to consider the dissolution of itself under the fixed term Parliament law. And depending on changing circumstances it may be that what will be needed shortly is a new Parliament asap
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Jerzy Kolodziej on September 16, 2019 at 4:10 pm
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I must confess I do not like the reasoning in the Inner House ruling or by extension the ones presented here. It seems to me that it is matter for parliament to protect its own parliamentary sovereignty. It is of course quite compelling to suggest that if parliament is not in session it cannot do so. The argument would then seem to turn on whether parliament was restricted from protecting its own sovereignty to a degree that the courts should properly consider. However, why should the court be forced to consider a difficult question when there is a simple solution the resolves the matter completely.

It would seems that there is some considerable lack of clarity as to the source of parliamentary sovereignty among legal scholars. The analysis as “Lord Hope put it in Jackson (at [126]) parliamentary sovereignty is ‘built upon the assumption that Parliament represents the people whom it exists to serve.” seems to have been plucked out of thin air from the mysticism of our uncodified constitution. I would say that the origins of our modern parliament and its sovereignty are built on firmer ground than that.

The idea that parliament exists to serve the people, is a construction rather than a fact. That origin seems to be more from political theory rather than from the law or history. It would seem that parliament serves the Crown and it is a creation of the Crown or the court or of conquest. The Bill of Rights came into force in the absence of parliament in 1688. There was no King or Queen and neither was parliament in session. Over the centuries, there have been many changes to regulate who may vote or how elections of MPs may be conducted. Parliament adopted and formally enacted the Bill of Rights and further enacted the Claim of Right for Scotland. These acts are not mere ornaments that establish some vague order or law that can be narrowly interpreted by the courts as it may suit their purposes. In essence, our parliamentary democracy is a privilege given freely by the Crown, not a right taken by the people and delegated to their MPs.

These Acts are the bedrock of the foundation that our constitution is constructed upon. There can be no doubt that there shall be a parliament and the it should sit frequently in order to debate or make law on any matter of controversy; in particular to provide oversight of the executive. It is a clear matter of law that MPs have a public and private right to sit in their place. There is nothing ambiguous or difficult to interpret from the words used in those acts. The grammar and spelling may be unorthodox by modern standards, but the meaning plain. These Acts are not relics of our constitutional history, but Acts that have remained largely in their original form for centuries. Parliament have had countless opportunities to amend or repeal those Acts but have refrained from doing so. In short, the proper interpretation of the words today, is as relevant as it was when they were written; perhaps more so.

The essence of parliamentary sovereignty is contained in these Acts. The right and power of parliament to have exclusive control over the executive are contained in these Acts. The prerogative only exists to the extent that parliament has not limited or extinguished it. To suggest that parliament could be suspended and it is not any way limited by these Acts is a reductio ad absurdum. The court is not only entitled, but required to consider whether the use of the prerogative have interfered with the right of parliament to sit. It is a protected right that is central to our system of democracy and the constitution. It is not some vague notion but a statutory requirement. The modern parliament has always been protected by statutory law. There is no need for further legislation to clarify that fact.

There is no doubt that prorogation could and should be used to end a session and suspend parliament. There is no doubt that the prerogative continues to exist for that purpose. The question is simply whether the the prerogative is being used for some other collateral purpose that infringes upon parliaments statutory right to be in session. Surely, the decision to prorogue parliament is in essence an administrative decision rather than a political decision. There is no high policy involved at all, unless of course the purpose is to frustrate parliament. I take the view that parliament has already enacted law to prevent parliament from being frustrated through the Bill of Rights and the Claim of Right. It is a matter of law not politics whether the statute has be contravened. The court simply have to decide based on the subject matter and the facts whether the law has been contravened.

Prorogation should not be a controversial act of state but one that simple signifies the end of a parliamentary session. If it is used to prevent or materially impair parliament from carry out its statutory duty, it is by definition illegal.
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  Distressed Constitutionalist on September 21, 2019 at 12:57 am
  Reply
  
  If you are interested, the House of Commons and the House of Lords are actually form courts or communes of the monarch.
  
  All legal authority of parliament derived from common law, or through acts of the surrender of the powers of the monarch as divine ruler to the institution itself.
  
  When legislation is passed through the houses it is done by the legal fiction that every man and woman is present within the chamber, for the passing of the act itself.
  
  Prior to parliament were the Wittans, which were merely counsils, by which the monarch sought advise as well as an instrument commanding his law throughout the land.
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Distressed Constitutionalist on September 21, 2019 at 12:49 am
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Prorogation defeats legislation as a default unless they are specifically carried over.
Prorogation as an act of state is political.
Prorogation is an action of high authority.

Producing principles of law from thin air that have not existed in hundreds of years of case law, to curtail fundamental rights of the executive is not good legal practice.

Parliament’s legal authority was constitutionally derived from an innate authority as well as authority claimed to it by surrender from the crown of certain rights and privileges.

Powers that were not surrendered by the crown, commonly called the crown’s prerogative are fundamental in our constitution and are unchallengeable unless set out by statute.

When the courts conjure up legal principles, these are guiding principles for legal policy, not sources of authority in their own right.

Legal principles cannot overcome statute nor prerogative powers.

Challenges to prerogative powers through judicial review, where there is no guiding legislation, will form under the direction of underlying duties that the minister has to the Queen as the power itself is delegated to that minister. This relationship between minister and queen itself is not too dissimilar to that of a fiduciary.

The act of prorogation is directly made by the Queen, so no challenge can be made under that relationship, which is why the current legal action is being taken against the minister’s advice.

The sovereignty of parliament is not a legal principle. It is merely a legal statement of the fact, that the courts in determining the law will treat validly passed statute is the greatest source of legal authority. It does not say anything about the institution of parliament.

Indeed, parliament is able to legislate away its ability to legislate. If you take your expanded view of sovereignty, then this surely would be going against its own sovereignty and therefore such legislation must be invalid because it breaches itself? What kind of ridiculous rabbit holes, would such a principle conjure up for our constitution.

Indeed such a wide view would be to remove the crown from the crown in parliament. One of the fundamental pillars of our system of governance.
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Brexit Highlights 16 – 22 September 2019 – Middle Temple Library Blog on September 23, 2019 at 1:32 pm
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[…] to Prorogation: Cherry and Miller (No 2); Yossi Nehushtan: Prorogation and Justiciability; Hasan Dindjer: Prorogation as a Breach of Parliamentary Sovereignty; Hayley J. Hooper: Keeping the Lights On: Contrasting Miller v Prime Minister and Cherry v The […]
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I·CONnect – Changing the Constitution in the Guise of Preserving It on October 18, 2019 at 8:28 pm
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[…] be implied if Parliament’s sovereignty is to exist empirically, says the Court ([42] and see also Hasan Dindjer and Paul Craig). The problem with this argument is that it’s premised on the mistaken view of […]