The issue of remedies for any finding that the 2019 prorogation of the UK Parliament is unlawful is presently under discussion in pleadings in the joined appeals of Miller No.2 and Joanna Cherry MP (and others) in the Supreme Court. Essentially, the question concerns what must occur if the minister’s advice is found unlawful, and what is the effect of ‘declaring’ the Order in Council which authorized the prorogation of Parliament to be ultra vires. Does it mean prorogation never legally happened? Should Parliament have been in session all along? How is any summoning or recall to take effect?

The recent judgment of the Inner House of the Court of Session in Scotland found that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful and ruled at [60] that its remedy was to

grant a declarator that the advice to prorogue Parliament on a day between 9 and 12 September until 14 October, and hence any prorogation which followed thereon, is unlawful and thus null and of no effect.

This sent a mixed message – it is phrased as a declaration (in Scots law) but it specifies the consequences to be that the Order in Council was null and void. That would mean that Parliament was prorogued unlawfully and that in law it should be regarded as remaining in session or entitled to resume the session. In English public law, however, which I understand is similar to Scots law on this point, a declaration and a quashing order are different remedies. The former clarifies whether an unlawful act has occurred but does not automatically render it inoperative, whereas the latter pro-actively extinguishes the legal effects of the purportedly lawful act – and unlike a declaration can be enforced to that extent. It means the act had no legal effect at any point in time.

I will argue in this post that a distinction between the effect of declarations and quashing orders is and should be observed by the courts, and that both remedies are relevant to the current litigation before the Supreme Court. The distinction is also important for the judicial review of all delegated legislation and especially that of Brexit-related statutory instruments made under the European Union (Withdrawal) Act 2018. I will address this issue in principle and then return to how this analysis applies to the proceedings before the Supreme Court.

A quashing order is the ‘usual’ remedy for ultra vires delegated legislation

Lord Hope restated the orthodox position on the appropriate remedy for an ultra vires order recently in A v HM Treasury (No.2) [2010] 2 AC 534 [17]: ‘The usual rule, of course, is that an order [of the court] quashing an order or other measure as ultra vires operates retrospectively as well as prospectively.’ The Court of Appeal explained in some detail in R (C) v Secretary of State for Justice [2009] QB 657 (CA) [43], [83] why this position is ordinarily preferable to declaratory relief. Lord Reed also clarified the position of the usual rule in his leading speech in R (UNISON) v Lord Chancellor [2017] UKSC 51. The Lord Chancellor argued, on the question of remedies, that the facts illustrating the unlawful effects (that it had led to a substantial drop in tribunal receipts, therefore undermining the fundamental common law right of access to justice) emerged after the making of the Order challenged in that case. Hence the Order should be regarded as lawful when made and unlawful only insofar as the Lord Chancellor had not withdrawn it. The appropriate remedy was therefore to issue a declaration to that effect. Lord Reed rejected the argument [119]:

That argument mistakes the nature of the illegality with which we are concerned. This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.

The ‘usual rule’ governing remedies for an ultra vires statutory instrument is that a quashing order be given.

A declaration in lieu of a quashing order

One of the reasons for affirming a distinction between declarations and quashing orders relates to the problem found in the leading case of Percy v Hall [1997] QB 924. Here, the issue was whether persons previously arrested and convicted under byelaws later held ultra vires were entitled to damages against the police for false arrest. The Court of Appeal rejected the claim because the byelaws were presumed valid at the time of enactment. The rationale was that ‘retrospective application could lead to administrative chaos and also deprive people of their benefits […]’ (De Smith’s Judicial Review, at 4-062).

Learned writers have of course also grappled with this issue, as neatly surveyed in an article by Professor David Feldman: ‘Error of Law and Flawed Administrative Acts’ (2014) 73 CLJ 275, esp. at 280-281, 314. Briefly, most recognize that an an ultra vires order will in some cases have ongoing legal effects.

Courts have also recognized this possibility on several occasions, for example in R (on the application of TN (Vietnam) and US (Pakistan)) v Secretary of State for the Home Department [2017] 1 WLR 2595 (HC) (Ouseley J). Two recent examples in the Supreme Court will suffice by way of illustration.

In Re Gallagher’s Application for Judicial Review [2019] UKSC 3, Lord Sumption explained for the unanimous Supreme Court why he would forego a quashing order in favour of declaration. The four Respondents in the appeal had spent convictions in relation to comparatively minor offences. Under the Rehabilitation of Offenders Act 1974 (and equivalent provision in Northern Ireland) and the impugned statutory instruments, the Respondents were obliged to disclose their convictions to employers in relation to working with children or vulnerable adults in specified circumstances. At [66],  Lord Sumption explains that

What is disproportionate is the creation by article 2A(3)(c) of the amended 1975 Order of a category of disclosable convictions and cautions which depends on the multiple conviction rule. On that footing it would be open to this court to quash that article. Nonetheless, the making of such an order is discretionary, and I would decline to make it in this case. The reason is that it would introduce a discrepancy between the disclosures required of the Disclosure and Barring Service under the Police Act 1997 (the relevant provisions of which must stand unless and until amended or repealed by Parliament) and the disclosure required of the ex-offender under the Rehabilitation of Offenders Act 1974. This would authorise the ex-offender to withhold disclosure of something that would then have to be disclosed in a certificate issued by the Disclosure and Barring Service. In the circumstances, the appropriate course would be simply to vary the order of the Divisional Court by adding a declaration that article 2A(3)(c) is incompatible with article 8 of the Convention.

The effect of the judgment is to acknowledge the availability of a quashing order and to explain why it is denied in preference for a declaration.

A similar remedial approach was adopted in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening)  [2015] UKSC 57. A regulation required that persons seeking student loans for higher education be (1) lawful ordinary resident and (2) settled. A majority of the court (Lords Reed and Sumption dissenting) found that the scheme violated the claimant’s right to education under Art.2 of the European Convention on Human Rights because it did not permit those who were functionally but not yet legally settled in the UK to obtain student loans. However, the issue of applicable remedies was not straightforward, as Lady Hale explained at [49]:

The problem with quashing the settlement criterion in its entirety is that there must be cases in which it is not incompatible with the Convention rights. The problem with reading down the Regulation as suggested is that it would leave the Department with little guidance as to when the refusal of finance would be a breach of the Convention rights. But the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention.

The effect of the Court’s finding is that any application of the settlement criterion to persons in Tigere’s situation would be unlawful and that the order should be read subject to that proviso.

The rationale for the distinction

Briefly, the rationale for the distinction is that although a quashing order is the usual rule there may be compelling reasons to issue a declaration instead and allowing the ultra vires instrument to continue to have legal effects. The unpalatable alternatives to such an approach are for the courts to either (1) give remedies which erase important entitlements, cause serious loss, or substantial administrative inconvenience or chaos, or (2) refuse what are otherwise valid legal challenges because the remedy would be disproportionately onerous, or (3) use their discretion to decline a remedy altogether by acknowledging the unlawfulness but refusing to do anything or specify the consequences. None of these is satisfactory. That is why the pragmatic approach of the courts, occasionally issuing declarations in lieu of quashing orders (with attendant justification), is defensible in principle as well as evident in practice.

Back to the live controversy

The mischief of the judgment of the Inner House of the Court of Session for the case of Joanna Cherry MP was that it used the language of a declarator but announced that the consequences are that the Order in Council was null and void. With respect, that would not be the inevitable legal operation of a declaration.  Where nullification is the aim, the language of quashing order (and its equivalent in Scots law) should be preferred, at the very least to avoid confusion.

But what of the substantive question at issue in both the Cherry and Miller cases – should the court prefer a quashing order to a declaration? The lawyers in the Miller 2 case wisely obtained a concession from the Government that it would abide by a declaration that ministerial advice is illegal by requesting revocation of the Order, meaning there is no need for a quashing order or indeed even to declare the Order in Council was unlawful. That side-stepped the difficult issue of the relationship between the ministerial advice and the lawfulness of the Order in Council. They are separate legal acts, and the relationship is somewhat unclear, complicated by a reluctance of the courts to scrutinize and quash exercises of the Queen’s personal prerogatives on the one hand, and reluctance of politicians to draw the Queen into political disputes on the other. The Government conceded it will act accordingly – also wise in view of both issues.

It is nevertheless important to clarify two things at this juncture. The first is whether the Court should quash the Order in Council if it is minded to find that the Order, in addition to the ministerial advice, was unlawful. In my view, the principles examined above and more extensively elsewhere suggest that there is nothing to displace the application of the usual rule in this case. So the Scottish court should have granted a quashing order in light of its findings on legality. And the Supreme Court should do so as well if it chooses to find the Order in Council unlawful. The consequences of doing so are not in the nature of something that would provoke serious harm, loss of rights, or administrative chaos. On the other hand, a declaration (only) that the ministerial advice was unlawful would, on the analysis presented above, have no automatic effect of rendering the Order in Council invalid. That option might entail less legal uncertainty about the knock-on effects of a quashing order.

The second clarification is what to make of the Government’s attitude in this political context and legal case. When during proceedings on 17 September 2019 Lord Kerr asked Lord Keen, the UK’s Advocate General for Scotland, about what precisely the Government’s concession to abide by the terms of any declaration would mean, Lord Keen was unable (understandably) to answer in convincing terms.  Indeed, it is so contrary to the traditions of the UK constitution for a Prime Minister (PM) to do anything other than the obvious thing in response to such a finding, that it appears that, at least then, neither counsel for Gina Miller nor for the Government contemplated that further clarity was required. But we are precisely in exceptional constitutional times, and the questioning on this issue was likely prompted by rumours already circulating about whether the Government will seek to evade the judgment in the same way it has intimated it will try to evade the requirements of the Benn Act. It is thus, in my view, important in this case that were the Court minded to declare either the advice or the Order in Council unlawful, that a detailed statement of the Government’s intended response be received as an undertaking. Time-permitting, this might be done in the course of further submissions relating to remedies. On substance, it would seem that the appropriate response to a declaration is for the PM to advise the Queen to revoke the previous Order with immediate effect, and effect the recall or resumption of a sitting of Parliament. The latter might be done either by (1) the PM advising on his own initiative that the Speakers of both Houses recall Parliament, treating the episode (post revocation) functionally as a recess or adjournment rather than prorogation; or (2) for the PM to advise the Queen to issue a proclamation that Parliament should meet for the dispatch of business notwithstanding her earlier prorogation (a procedure outlined in [8.11] of Erskine May).

However, were the Government to refuse to give such an undertaking to the Court in clear terms, then in my view it would be appropriate for the Court to issue a mandatory order directing the PM to advise the Queen to issue a proclamation under the Meeting of Parliament Act 1797 (as amended) appointing a specific day for the summoning of Parliament.  It would be precisely that type of case in which the Government’s refusal to clarify its intended response to a finding of unlawfulness would justify resort to a more directive remedy. Whether the effect of doing so would open a new session of Parliament or would, under the circumstances, continue the previous session is an issue for the usual custodians of the law and customs of Parliament to resolve.  Notably, this remedy would be available without any judgment on the lawfulness of the Order in Council because the power specified in the 1797 Act operates in respect of lawful prorogations.

On the whole, a declaration followed by a political resolution would be the ideal response to a finding that ministerial advice was unlawful. Yet without a detailed undertaking, under the circumstances, the ideal response seems very idealistic.

The author would like to thank Finnian Clarke for outstanding assistance in exploring the authorities referred to in this post, and Alison Young for helpful editorial feedback.

Jeff King is a Professor of Law at UCL Laws, a Visiting Professor at the Faculty of Law, University of Oxford, and Legal Adviser to the House of Lords Constitution Committee. This post was written in a personal capacity and does not represent the views of the Committee.

(Suggested citation: J. King, ‘Miller/Cherry and Remedies for Ultra Vires Delegated Legislation’, U.K. Const. L. Blog (19th Sept. 2019) (available at https://ukconstitutionallaw.org/))