The question of justiciability lies at the heart of the judicial response to the legal challenges that were brought against the Prime Minister’s administrative decision to advise the Queen to prorogue Parliament in Miller 2 and Cherry. The judicial reluctance to exercise judicial review regarding the administrative decision to advise the Queen to prorogue Parliament relied on two arguments, without properly distinguishing the two: first, that there are no legal tools or norms that can be used to scrutinise this decision – or in other words – that the decision is normatively non-justiciable; and second, that it would be inappropriate for the courts to interfere as the decision is ‘politic’ or that of ‘high policy’ – or in other words – that the decision is institutionally non-justiciable.

In this post I argue that the decision to prorogue Parliament is both normatively and institutionally justiciable. I will also point to a few misguided perceptions regarding justiciability, as found in the above judgments, and will offer more accurate ones.

Normative justiciability

The argument that a decision to advise the Queen to prorogue Parliament is normatively non-justiciable is wrong for two reasons. First, there are at least three established grounds of judicial review that can be easily used to scrutinise that decision, regardless of its ‘political’ nature and the use of prerogative powers. As was rightly decided in Cherry, it is clear the decision was made for an improper purpose. It is also clear that the decision is both irrational (as there is no rational connection between the means – proroguing Parliament, and any legitimate end the Prime minister may have) – and unreasonable (as the Prime Minister accorded highly distorted weight to the relevant considerations for and against proroguing Parliament for five weeks).

Secondly, and more importantly, no decision that entails exercising legal power can be normatively non-justiciable. Those who argue that a certain dispute is normatively non-justiciable argue that there are no legal norms for determining the dispute; that the law – by its nature – does not and cannot determine each and every normative dispute and cannot answer each and every normative question (and here, ‘normative question’ means a question about what those who exercise legal power are allowed to do). That was the view taken by the court in Miller 2. The court conceded that administrative decisions are not immune from judicial review merely because they were carried out pursuant to an exercise of the Royal Prerogative (para 34). However, regarding the decision to prorogue Parliament, the court decided that it is a ‘political’ issue that involves matters of ‘high-policy’ – and it is therefore non-justiciable. The court then added that ‘the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action’ (para 47) – and that the decision to prorogue Parliament was ‘inherently political in nature’ as there are indeed no legal standards against which to judge its legitimacy (para 54).

By deciding to advise the Queen to prorogue Parliament, the Prime Minister exercised his legal power. What the court, with all due respect, failed to appreciate, is that arguing that there are no legal norms to decide the legality of exercising legal power is a contradiction in terms. This is so because of two reasons: the first is the principle legality and second is the unlimited legal scope of the grounds of judicial review.

As to the principle of legality: all acts and decisions that entail exercising legal powers are subject to the principle of legality which states that public bodies are allowed to do whatever the law authorises them to do. Therefore, and by definition, all decisions that entail exercising legal powers are normatively justiciable. If the Prime Minister has the legal power to advise the Queen to prorogue Parliament, then there must be a legal norm (either written or not) that grants that power and the conditions under which it can be exercised. There can be no legal act – and proroguing Parliament is a legal act that has legal implications – without an authorising law and legal criteria. In a legal system that subscribes to the rule of law there can be no legal power without legal limits. These limits make the exercise of the legal power normatively justiciable.

As to the unlimited legal scope of the grounds judicial review: all administrative decisions are subject to tests such as rationality and reasonableness. As a matter of fact – and law – all administrative decisions are either rational and reasonable – or not. The courts, therefore, can always decide the rationality or reasonableness – thus the legality – of every administrative decision. The administrative body may enjoy wide discretion. It may even make two contradictory decisions (for example, to prorogue Parliament for a week or not to prorogue Parliament at all) – and none of which will be unreasonable. But this is made within the legal framework of reasonableness as a ground of review – and not beyond it.

The court in Miller 2 wrongly equated the ‘political’ nature of the decision to prorogue Parliament with a lack of legal standards for deciding the legality of such a decision. The truth is that even the most ‘political’ or ‘high policy’ decisions are normatively justiciable. Decisions to wage a war, for example, or to create or suspend diplomatic relations with other states, or to sack a minister or to reshuffle Cabinet are all normatively justiciable, because they can only be legal if they are made by those who have the legal power to make them; because the law that grants the power also decides its limits; because no legal power is absolute; and because the rationality or reasonableness of all the above administrative decisions, ‘political’ as they may be, can in principle be reviewed by courts much like any other administrative decision.

Institutional justiciability

The only question is therefore not whether the law and the courts can decide that proroguing Parliament is illegal, but rather should such a decision be made by the law and therefore the courts. That is the question of institutional justiciability. This is a question of judicial policy – and not of the jurisprudential limits of the law. This is also a question that was never given a full and satisfactory answer by UK courts. Much like Justice Potter Stewart in Jacobellis v. Ohio, who admitted that he cannot define what ‘hard-core pornography’ is but added that ‘I know it when I see it’, UK courts never set satisfactory criteria for distinguishing between ‘legal questions’ and ‘political questions’. They merely know it – the political nature of a question – when they see it. They never explained in a satisfactory way what makes a question political rather than legal, except for arguing that a political question is one to which the law does not provide an answer, yet it was shown above that this assertion is misguided.

The general and serious problems regarding UK courts’ approach to the question of institutional justiciability can be put aside for now. This is so because the specific decision made by the Prime Minister to advise the Queen to prorogue Parliament cannot be possibly perceived as one that reflects ‘high policy’ – as was persuasively argued by Paul Craig. The decision was made for political reasons – but that alone does not exclude it from the scope of the law or the review powers of the courts, as even the court in Miller 2 conceded that ‘almost all important decisions made by the Executive have a political hue to them’ (para 47).

Institutional justiciability or illegality: which question comes first?

In Miller 2, the court stated that it was central to the claimant’s submissions that the court will first decide whether there has been a ‘public law error’ and then turn to the question of justiciability. The court, however, decided that ‘the question of justiciability comes first, both as a matter of logic and of law’ (para 41). This view, with all due respect, is misguided.

If by ‘justiciability’ the court referred to normative justiciability, then the question of legality must precede the question of justiciability. A question is normatively non-justiciable if the law does not provide an answer to it; if there are no legal norms or standards applicable to that question. That means that first we need to ask the question of legality – and only if we find that the law does not take a stand on the issue and does not provide tools for deciding the legality of the administrative decision can we conclude that the decision is normatively non-justiciable. The court itself (wrongly) decided that the law does not provide norms or standards for deciding the legality of the Prime Minister’s decision to prorogue Parliament – and that in fact led the court to (wrongly) decide that the decision was ‘political’ and therefore non-justiciable. Thus, even according to the court’s reasoning in Miller 2 – the question of legality precedes that of justiciability.

If by ‘justiciability’ the court referred to institutional justiciability, things are slightly more complicated. The question of institutional justiciability does precede the question of legality. By deciding that an administrative decision is institutionally non-justiciable, the court in fact says ‘this is not for us to decide this matter, because of the nature of the issue and because of judicial policy considerations, regardless of whether the administrative decision is illegal or not’. If an administrative decision (to declare war, suspend diplomatic relations or sack a minister, for example) is institutionally non-justiciable – it is so even though there are legal norms and standards for deciding its legality.

Having said that, no decision that entails exercising legal power should ever be institutionally non-justiciable under all circumstances. This is so because, and was rightly noted by Lord Drummond Young in Cherry, if the expression ‘non-justiciable’ means that the courts have no jurisdiction to consider whether a power has been lawfully exercised, then it is ‘incompatible with the rule of law and contrary to fundamental features of the constitution of the United Kingdom’ (para 102).

Without elaborating on that point, decisions that are normally institutionally non-justiciable because of their nature or subject-matter, should remain non-justiciable even if they are illegal – but only if their illegality and the implications of their illegality are ‘mild’ (for example – sacking a minister while taking into account an irrelevant consideration). However, decisions that are normally institutionally non-justiciable because of their nature or subject-matter, should be justiciable after all if they are shockingly illegal – and the implications of their illegality are severe (for example – proroguing Parliament for 5 weeks, shortly before the most important political decision in decades is about to be made, and while acting for an improper purpose) – or in the words of Lord Brodie in Cherry: ‘when the manoeuvre is quite so blatantly designed “to frustrate Parliament” at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful’ (para 91).

That means that regarding institutional justifiability as well – the question of legality precedes the question of justifiability. The court in Cherry acknowledged that, thus marking another disagreement with the court in Miller 2, when it says that ‘as a generality, decisions which are made on the basis of legitimate political considerations alone are not justiciable’ (Lord Carloway, para 50). Even though that may not be the most accurate way of describing what a non-justiciable decision is, it is clear that according to this view, decisions that are made for illegitimate political purposes may be justiciable, thus the question of legality precedes that of justifiability.

It is worth noting though that the court in Cherry made a conceptual error within this context. The court stated that the real reason for proroguing Parliament was to stymie Parliamentary scrutiny of Government action. And since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the court ruled that that decision cannot be seen as a matter of high policy or politics – and is therefore justiciable (Lord Carloway, para 51). The truth is, however, that the illegality of the decision does not prevent it from being a matter of high policy or politics. In principle, a decision may be a matter of high policy or politics even if it is illegal. Its illegality, however, may affect its justiciability.

Conclusion

The decision to prorogue Parliament is both normatively and institutionally justiciable. It can and should be decided by the court. That judicial decision should be made within the framework of the grounds of judicial review in administrative law. Within this framework, it is evident that the decision to prorogue Parliament was made for an improper purpose, and that it is both irrational and unreasonable, and therefore illegal.

I would like to thank Alison Young for reading and improving the first draft of this post.

Dr Yossi Nehushtan is Senior Lecturer at the School of Law, Keele University.

(Suggested citation: Y. Nehushtan, ‘Prorogation and Justiciability’, U.K. Const. L. Blog (16th Sept. 2019) (available at https://ukconstitutionallaw.org/))