Constitutions do many things. They distribute authority amongst public bodies, enshrine important points of substantive principle, and cement relationships between rulers and the ruled. However, in a more abstract and fundamental sense, constitutions also tell us something about ourselves as political collectives: they express the kind of polity we embody and the kind of people we have come to be.
Whether written or unwritten, constitutions establish the contours of our political communities. To use Hannah Arendt’s metaphor – borrowed from the Ancient Greek understanding of law as nomos – constitutions are the walls that encircle, define, and defend the everyday aspects of our political lives. It is against this normative backdrop that I want to reflect upon one element of what is expressed by the recent judgement of the United Kingdom Supreme Court in the cases of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland. This element, which I contend is of fundamental importance to the overall justifiability of our constitutional order, is mentioned in paragraphs 46 and 47 of that judgement. It relates to the governmental accountability, and is expressed in the following terms:
Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.
Her Majesty’s most recent prorogation of Parliament, now declared void (see paragraph 70), was to last for the unusually long duration of five weeks. Prior to that prorogation, one may have forgivably considered it trite that, as a matter of moral and constitutional principle, government policy should be ‘subjected to consideration by the representatives of the electorate’. However, as the Supreme Court makes clear at paragraph 56 of their decision, the Prime Minister’s advice to prorogue had the effect of completely forestalling this mode of accountability. This goes to show that even the most trite points of constitutional principle can be subject to unforeseen precarity.
Perhaps of even greater constitutional interest, the court held at paragraph 61 that the advice to prorogue was unjustified, and therefore unlawful. The formulation of the test employed to reach that conclusion is worth reproducing in full (at paragraph 50):
For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.
Even placing to one side what this paragraph has to say about the role of legislation, it encapsulates at least two important moral and legal propositions: 1) Parliamentary representatives must be allowed to hold the executive to account; and 2) the courts should intervene if, absent justification, the prerogative power to prorogue is used to forestall this holding to account.
I have no doubt that some lawyers, whether acting for the government or in a private academic capacity, will hereafter spill much ink in their attempts to limit the implications of this ruling. The Supreme Court themselves have certainly paved the way for such legal cautionaries: the Court’s emphasis on the unusual circumstances of this prorogation, and their optimistic prediction (at paragraph 1) that nothing of this sort is ever likely to occur again, signals quite strongly that they intend to speak only to the instant case, and not beyond.
Nonetheless, I suggest that this important judgement expresses far more than a narrow, technical ruling on the power to prorogue; more even than a new approach to judicial oversight of prerogative powers in general. It expresses, or so I shall argue, a rallying cry for a bold constitutional vision of the United Kingdom: the vision of a polity that takes seriously the individual agency of its citizen-subjects. To explain what I have in mind, it is necessary to reflect upon the value of accountability.
Representation, whether within the legislative or executive branches of government, matters, at least in part, because it establishes the accountability of those who wield power to those subject to it. In particular, the periodic removal or confirmation of our representatives lessens the possibility of persistently unpopular rule, provides a potential means for preventing tyranny, and facilitates the removal of demonstrably incompetent governments. The framers of the United States Constitution recognised this, understanding the people ‘not as rulers, but as judges able to check the legislature’.
These practical points are well rehearsed. In this post, I want to emphasise something slightly more esoteric, but no less important: accountable government also reflects an important element of respect for individual personhood. Insofar as governments accept accountability to the governed, they acknowledge that the interests of those individuals are implicated when public power is exercised. This facilitates the agency of individuals subject to political power and avoids treating them as mere objects or bearers of externalities. Such governments begin to take their subjects seriously as individuals, rather than as ‘human resources’ to further their own ends. This is an important element of the respect that our rulers owe to us, morally speaking. When governmental accountability is stymied this respect is abrogated and disrespect takes its place.
Prorogation and Accountability
As I argued in a previous piece, the degree of respect that accountability expresses depends upon the manner in which it is instituted. When the available mechanisms for accountability are relatively few and ineffective, the respect expressed by their existence will be purely nominal. For instance, whilst instrumentally important in many respects, the power to deny reappointment to our legislative representatives provides relatively minimal accountability, especially where it is infrequently and irregularly available. Prior to the Fixed-term Parliaments Act 2011, general elections were held when the government deemed it appropriate, subject to some constitutional conventions, such as the rule that elections must be held before the new parliamentary term. Nonetheless, the executive determined when popular accountability could be exercised. No system of representation under which the accountable exercise such control over the means of their accountability can demonstrate more than a pale, thin conception of what is owed to the governed.
In the contemporary context, it must be remembered that private individuals in the United Kingdom have relatively few effective means for holding their government directly to account, at least where they are not personally affected by executive decision making. It is partly for this reason that Members of Parliament can be contacted directly by their constituents, so that the former may raise issues on their behalf. Furthermore, it is only over individual Members of Parliament – and not over the government as such – that private individuals hold, collectively, the power to deny reappointment. This was explicitly recognised by the Supreme Court, who at paragraph 55 of their judgement stated:
The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.
Given this constitutional background, the continued oversight of Parliament, the members of which are directly accountable in more than one manner, is of fundamental moral importance. As noted in paragraph 46 of the Court’s judgement, Parliament enables crucial debate over, and scrutiny of, executive action ‘through such mechanisms as…[each minister’s] duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make’. Given the extent of popular dependence upon Parliament as an accountability mechanism, to stymie its oversight of the executive is to hamstring popular oversight itself, with all the incidental disadvantages that entails and all the disrespect for individual agency it implies. Nothing, or so I argue, could be further from the spirit of British democracy.
Conclusion: Two Visions of the British Constitution
In his first speech as Prime Minister, Boris Johnson stated that:
Everyone knows the values that flag [sic] represents.
It stands for freedom and free speech and habeas corpus and the rule of law, and above all it stands for democracy.
And that is why we will come out of the EU on October 31.
Because in the end, Brexit was a fundamental decision by the British people that they wanted their laws made by people that they can elect and they can remove from office.
And we must now respect that decision…
Following his advice to prorogue Parliament, it is somewhat unclear what conception of democracy the Prime Minister had in mind when he gave that speech. Those of us who doubt that any genuine concern for representative government underlies Mr Johnson’s premiership will find some confirmation for our scepticism in paragraph 61 of the Supreme Court’s judgement, which states that it was ‘impossible for us to conclude…that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks’. Let me suggest an interpretation, not only for the content of his first speech, but for the recent unlawful prorogation as well: for the Prime Minister, democracy means populist demagoguery; a strong leader pushing through a snapshot of popular opinion.
By contrast, the judgement of the Supreme Court in Miller and Cherry expresses a different conception: one more firmly rooted in our Parliamentary tradition. It recognises that democracy does not proceed on the basis of untrammelled executive fiat, guided obliquely by occasional opinion polls. Instead, it sees representative government as an ongoing collective venture. On this view, private individuals must have multiple and frequent opportunities to participate in the governance of their communities. What matters is not just that they have their say, as it were, every now and then. Instead, they must always have at least some means of holding government to account: through Parliament in the first instance, and then, if necessary, through the courts. As I have tried to show here, this second view has considerable moral appeal. Not only does it facilitate a constant check against the emergence of tyranny, but it also respects the agency of each individual subject. The Supreme Court should be applauded for standing in defence of these values.
Alex Green, Assistant Professor of Law, The University of Hong Kong
(Suggested citaton: A. Green, ‘Our Constitution, Accountability and the Limits of the Power to Prorogue’, U.K. Const. L. Blog (26th Sept. 2019) (available at https://ukconstitutionallaw.org/))