If the phrase “may you live in interesting times” actually has its roots in a curse, then, we constitutional lawyers are indeed cursed. The specific nature of the curse is the malleable nature of constitutional controls designed to protect our institutions from the whims of executive action. At the time of writing, Britain is set to leave the European Union without a deal as to future relations on 31 October 2019. Documents from Operation Yellowhammer set out the possible real-world consequences of this. In a meeting of 28 August 2019, the Privy Council issued an Order in Council proroguing Parliament between the dates of Monday 9 September to Monday 14 October 2019. According to a Commons Library Briefing Paper prorogation has not lasted more than fourteen days since the 1980s.

Courts in England and Wales have taken radically different approaches to the lawfulness of the Government’s decision to prorogue Parliament. The Supreme Court of the United Kingdom will hear appeals from the High Court of England and Wales, and from the Inner House of the Court of Session on 17 September 2019. The ruling in Cherry MP v The Advocate General is preferable to Miller (No. 2) because it demonstrates the necessary function of the common law in protecting the autonomy of Parliament.

Miller v Prime Minister (Miller No.2)

Gina Miller argued that the Prime Minister’s decision to advise prorogation was an ‘unlawful abuse of power’ which could be subject to control using the ordinary principles of common law review. The claim failed. The specific ground of judicial review relied upon was the idea that the prorogation was undertaken for an improper purpose, namely, to prevent Parliament obstructing the Government’s plans to move forward with Brexit. The claimants further argued that their claim should succeed because post-GCHQ there were no barriers to justiciability as no exercise of prerogative power was immune from judicial review.

Miller also argued that the decision to prorogue undermined an expansive understanding of the principle of parliamentary sovereignty. According to counsel for Miller, parliamentary sovereignty encompassed more than just Diceyan legislative supremacy. It was broad enough to encompass the dictum of Lord Reed in UNISON ([68]) to the effect that:

Parliament exists primarily in order to make laws for society in this country… Courts exist in order to ensure that the laws made by Parliament…are applied and enforced…for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.

It is unsurprising that the Divisional Court were unpersuaded that the dictum shed light on a broader principle of parliamentary sovereignty ([62]). It is better understood as a justification for the principle of the separation of powers, which relies upon (among other things) meaningful access to justice and a balance between the three arms of state.

Moreover, the High Court did not accept that ‘there is no longer any exercise of common law prerogative powers which is immune from judicial review’ [37]. There  were some aspects of decision-making which were inherently political and as such unsuitable for judicial review. Examples included the electoral campaign promise to hold a referendum on accession to the Lisbon Treaty (Wheeler), and the confidence and supply agreement between the Conservatives and the Democratic Unionist Party (McClean). Such decisions were held up as examples of decisions, like prorogation, which were absent ‘legal standards against which to judge their legitimacy’.

The decision in Miller (No. 2) was poorly argued and poorly reasoned. There is no doubt that some exercises of prerogative power remain immune from judicial scrutiny. However, we should be sceptical about the Court’s use of examples to demonstrate that prorogation is an essentially political act, incapable of legal evaluation. Both the High Court’s examples concerned quintessential electoral politics. Judicial control of this sphere would ultimately stultify such activity. The decision to prorogue, however, is not about electoral politics: it concerns the removal of a democratic institutional actor at the time of unprecedented constitutional upheaval. The issue is about keeping the constitutional lights on. The standards of public law review are rightly described by Endicott as ‘necessarily vague’. It is a mistake to think of legal standards as identifiable and rigid, and political standards as amorphous and soft. Judicial review law grounds of review must have a role to play in controlling the institutional balance between Parliament, the Executive, and the Judiciary where one institution seeks to clearly silence the other. To this end, the approach of the Inner House is to be preferred.

Cherry MP and Others v The Advocate General

Between Miller No.2 and Cherry, confidential government memos were disclosed. The Prime Minister had referred to the September parliamentary session as a ‘rigmarole…to show the public that MPs were earning their crust.’ The Lord President articulated four reasons as to why the power of prorogation was improperly exercised. First, the prorogation was undertaken in a ‘clandestine manner’. Second, the decision was taken regarding the fact that suspending Parliament would make leaving the EU without a deal easier. Third, the Government disclosures provided insufficient reasons for prorogation. Finally, prorogation of such an ‘extraordinary length of time’ ([54]) was unjustified. Therefore, declaring prorogation unlawful was underpinned by ‘“the principles of democracy and the rule of law”’ (Moohan v Lord Advocate, Lord Hodge [35]).” (Cherry [51]).

Lord Brodie declared that Parliament had a ‘right to sit’ which was abrogated by the unusual length of the prorogation. A prorogation ‘so blatantly designed “to frustrate Parliament” at such a critical juncture in the history of the United Kingdom’ was unlawful [91]. Lord Drummond Young held that prorogation was irrational because it deprived Parliament of its ability to scrutinize the executive during a period of major constitutional change [116].

Conclusion

On the surface the animus of each opinion in Cherry looks disparate: the rule of law and democracy, the collective rights of Parliament, and common law irrationality. However, the differences are skin-deep. The specific ground of review relied upon by their Lordships may differ, but the constitutional standards underpinning them do not.  Each Opinion in Cherry seeks to preserve the legitimate province of Parliament in the constitution. The ruling protects the constitutional role of Parliament to legislate, to hold government to account, and crucially to provide a forum for representative democracy. All three of our most treasured constitutional principles require the presence of the legislature (parliamentary sovereignty, the rule of law, and the separation of powers).

The Lord President relied upon the dictum of Lord Hodge in Moohan, in which he outlined some of the circumstances in which the courts may use common law powers to make a declaration of unconstitutionality:

in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by the principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.

Doubtless, Lord Hodge did not foresee prorogation by the executive for political ends as a possibility at the time of writing. None of us did. It is surely an abuse of power on par with the circumstances described in Moohan.  The ruling in Moohan drew upon the rulings in Jackson v Attorney General and AXA Insurance v Lord Advocate. These cases contain dicta setting out the ‘exceptional circumstances’ in which the common law judicial review jurisdiction could be used to declare parliamentary legislation unlawful. Examples included legislation which sought to disproportionately restrict access to justice or to severely abrogate fundamental rights. Both cases appear on the Judicial Power Project’s list of 50 Problematic Cases. The Cherry ruling will undoubtedly raise the ire of those sceptical of judicial power. However, it is not an instance of juridification of politics. It stands as an instance of judicial protection of politics.

An unelected court declaring legislation backed by a democratic mandate unlawful may remain constitutionally controversial, no matter how exceptional the content of that legislation purports to be. By comparison, declaring executive action designed to remove democratic scrutiny unlawful is constitutional bread and butter. The push towards Brexit at various junctures has exhibited many facets of populism, including sustained challenges to the ‘legitimate authority of “the establishment”’ and attacks upon the judiciary and Westminster.’  The British constitution relies upon various sources of legitimacy, including legal accountability, parliamentary accountability, and popular support. By proroguing Parliament, the Prime Minister, sought to trade parliamentary for popular legitimacy.  However, sources of constitutional legitimacy are not interchangeable in this manner.

Moreover, the most forceful critiques of hard-edged judicial review only apply when certain democratic pre-conditions are met. According to Waldron, the case against judicial review requires that democratic institutions are ‘in reasonably good working order’.  This includes a representative legislature elected by way of ‘universal adult suffrage’. The decision to prorogue Parliament removes a central organ of the constitution when accountability is needed most. A working constitution requires courts to act not only defence of their own jurisdiction, but also in defence of the province of other institutions.  The contrasting nature of the judgments in Miller (No. 2) and Cherry shines a light upon the open architecture of the British constitution. We stand at a fork in the road; much is up for grabs. The Supreme Court will have to choose the path for the common law to tread. The Cherry decision is not the judicial suffocation of politics, it is the judicial protection of the essential functions of parliamentary scrutiny, political accountability, and representative democracy. It is an appropriate use of the common law to impose constitutional standards on executive action.

Hayley J. Hooper, Fellow in Law, Christ Church, University of Oxford

 (Suggested citation: H.J. Hooper, ‘Keeping the Lights On: Contrasting Miller v Prime Minister and Cherry v The Advocate General‘, U.K. Const. L. Blog (16th Sept. 2019) (available at https://ukconstitutionallaw.org/))