The purpose of this piece is to examine the legal and constitutional implications of the Miller 2 Judgment.
I will focus on two aspects of the Judgment. First, the reasoning of the Court in setting and applying the standard for examining the five-week prorogation’s impact. Second, the Court’s approach concerning the examination of the reasons of justification of the Government’s decision.
1. Setting and applying the standard of examination
The Court contextualised temporally its examination by referring explicitly to the foreseen exit day of 31st October (paras 56 and 57). In other words, the examination did not concern the prorogation during any five weeks but the five out of the eight weeks before exit day. The exit day is what makes the examination noteworthy; the exit day is the reason why the challenge was brought in the first place. This logically means that the standard of examination employed by the Court would use this day as its point of reference. To be more precise, after this temporal contextualisation, the Court would be logically expected to examine if the five week prorogation deprived the Parliament from performing its dual constitutional role namely to legislate or to hold the Government to account concerning its decisions or omissions in the context of the UK’s imminent departure from the EU on 31st October. Such a construction would be anticipated especially in the context of the exercise of the supervisory jurisdiction which acknowledges the wide political discretion that the Government enjoys in this area of prerogative powers.
The standard set by the Court was (para 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 … 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. [Emphasis added]
Based on the temporal contextualisation of the examination (paras 56-57) the “effect” should logically have been examined by reference to whether Parliament was able to perform its dual constitutional role in the context of the UK’s imminent departure from the EU on 31st October notwithstanding the five weeks prorogation. If the answer was negative then clearly the five weeks prorogation would manifestly violate Parliamentary Sovereignty and Parliamentary Accountability.
Instead, the Court applied the standard by asking whether Parliament could perform its dual Constitutional role during these five weeks. In doing so the Court engaged in a circular if not tautological argument (the impact of the five weeks prorogation is that Parliament is prorogued for five weeks).
Furthermore, by putting the focus on the length of the period the Court diluted the emphasis on the effect, thus leaving a back door for problematic interpretations of the Miller 2 judgment. This is especially the case if paras 56-57 are read in conjunction with para 45 where the Court pronounced that “There can be no question of such a prorogation [for only a short time, according to modern practice] being incompatible with Parliamentary sovereignty: its effect on Parliament’s ability to exercise its legislative powers is relatively minor and uncontroversial.”
However, it is perfectly conceivable to have a situation where even a very short prorogation may have the most dramatic of an impact on Parliamentary Sovereignty and Parliamentary Accountability. Let us imagine a hypothetical three days prorogation from 29th to 31st October 2019. Let us now submit this prorogation decision to the two alternative tests mentioned above, the one that focuses on the impact of prorogation by reference to the exit of the UK from the EU and the one employed by the Court in paras 56-57.
On the one hand, the first test would be: Is Parliament able to perform its dual constitutional role namely to legislate or to hold the Government to account concerning its decisions or omissions in the context of the UK’s imminent departure from the EU on 31st October notwithstanding the three days prorogation? The answer is manifestly negative.
On the other hand, the Court’s test would be: Is Parliament able perform its dual Constitutional role during these three days? The answer would be prima facie negative, but para 45 seems to allow it (“there can be no question of such a prorogation… [for only a short time, according to modern practice] being incompatible with Parliamentary sovereignty: its effect on Parliament’s ability to exercise its legislative powers is relatively minor and uncontroversial.”)
Such a reading is indeed possible and provides a maverick party with an arguable veneer of lawfulness at a point where there would be very little time for judicial intervention. At that stage the defence of the obvious would rest mainly in the hands of the Monarch (a truly unenviable situation). This would not have been possible – neither the maverick interpretation of the judgment nor the opportunity for action – if the Court had employed the first test and had not ruled the Government’s decision unlawful.
Nevertheless, even within this stricter construction of the framework of legal examination by the Court there was still scope for the latter to act more deferentially acknowledging the wide scope discretion that the Government enjoys in this field. This observation is linked with the second point of my analysis.
2. The Court’s approach concerning the examination of reasons of justification
Although the Court seems to acknowledge the latitude of the PM’s power to prorogue Parliament (para 60) and that the latter may involve a range of considerations, “including matters of political judgment” (para 51), eventually the Court fails to recognise this fact in the examination of the reasons that could justify the Government’s decision, as I will explain below.
The position of the Court regarding the examination of the reasons of the Government’s decision is based on the premise that all the reasons are sharable in the context of this kind of judicial scrutiny just like in any other judicial review proceedings (para 51 “[the examination of the effect of prorogation]…presents no greater difficulty than many other questions of fact which are routinely decided by the courts.” See also para 58 “It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks.”)
I discussed elsewhere a reason that could in fact explain the Government’s decision to prorogue Parliament for such a lengthy period. I called it the “gadfly effect” which on the one hand was aimed at stiring the “Parliamentary Steed” into action and on the other at infusing a sense of urgency into the negotiations with the EU hoping for some last-minute concessions by the latter. Leaving aside the motive behind such a move – I hypothesised about what that motive might be here and here – the “gadfly effect” seems a plausible reason behind this prorogation decision. What’s more there is tangible evidence that it has worked to an extent at least: It should be remembered that in the summer of 2019 a Parliamentary motion to effectively block no-deal exit had been defeated (309-298). It was obviously the sense of urgency created by the Government’s decision to prorogue – to such a length – that led Parliament to react by passing the EUW (No2) Act 2019 immediately after its return from the summer recess in September.
Following the Court’s reasoning such a motive should have been explicitly articulated in order to be considered by the Court in the examination of the decision’s lawfulness. And here lies the problem with the UKSC’s reasoning: had the aforementioned reason been explicitly articulated and shared publicly before the Court it would have risked minimising its intended effect.
What follows logically as a direct consequence of the UKSC’s reasoning is that such reason/aim (gadfly effect) practically cannot be pursued by the Government – because its public acknowledgement takes away all its practical effectiveness. Should the Court be able to limit to such an extent the ability of the Government to use prorogation to achieve this clearly political aim? The answer of the UKSC is affirmative (this is the logical implication of the ruling). I respectfully disagree; not in the context of the present uncodified Constitution, I would argue.
From a legal, constitutional and practical perspective, if the Court was aiming to re-emphasise and protect the cornerstones of the UK Constitution namely the Principles of Parliamentary Sovereignty and Parliamentary Accountability from unwarranted inroads by the executive, it could have achieved its objective by ruling affirmatively on the point of justiciability but refraining from ruling on unlawfulness on the basis of lack of manifest evidence.
From a legal perspective the standard enabling the judiciary to examine in the future similar cases would have been established. In addition, it would have limited the ability of the Government to proceed with a second prorogation instalment after October 14, because that would manifestly violate the principles of Parliamentary Sovereignty and Accountability.
From a practical perspective the window for the Parliament to act would remain by and large the same. The critical period to hold the Government accountable by reference to the UK’s exit from the EU is after the October EU Council (17th-18th October) when it will become obvious whether a revised deal is forthcoming.
Instead, the Court decided to go the extra mile. In that sense, I hope I would be allowed the mischievous observation, the ruling of the Court was not proportionate.
Finally, the judgment can also be regarded as an attempt by the Court to solidify its role as a traditional Constitutional Court akin to those encountered in other legal orders. With the only important difference, however, that in the other legal orders Constitutional Courts perform their role within the confines of a legally binding codified constitutional framework that was established after a political and constitutional process involving various parties.
3. Concluding thoughts
In recent years we have witnessed the gradual sublimation of the prerogative powers of the Government into greater roles for Parliament and for the Courts. As rightly pointed by Lord Sumption (here), Miller 2 ultimately reinstates Parliament at the heart of the political process. However, although the strengthening of key constitutional principles (including, by implication, the principle of the rule of law even though the latter was not mentioned explicitly in the Judgment) is in principle welcome, we should acknowledge that as the glaciers and polar ice – cold, majestic, unhospitable remnants of the past – play a role in the earth’s ecosystem so do the ‘constitutional glaciers’ of prerogative powers in the context of the constitution (and they are present in different forms in all democratic legal orders). Their uncontrollable thawing should be embraced neither enthusiastically nor uncritically but with caution.
In the current constitutional ecosystem of the UK’s political constitution the “glaciers” of prerogative power have a role to play (this is also true for constitutional conventions of course). Their radical and quick melting may render the calls for a change of the UK’s constitutional ecosystem unescapable.
The author would like to thank Professor Alison Young for her useful comments. The usual disclaimer applies.
Dr Aris Georgopoulos, Assistant Professor in European and Public Law – Advocate, University of Nottingham, School of Law
(Suggested citation: A. Georgopoulos, ‘The Melting of Constitutional “Glaciers”: Miller 2 and the Prerogative Powers of Government’, U.K. Const. L. Blog (30th Sept. 2019) (available at https://ukconstitutionallaw.org/))