In the wake of Miller (No 2), it has been contended in the media that prorogation ‘has always been treated as a “proceeding in Parliament”’ and hence protected from judicial review by article 9 of the Bill of Rights 1688.  The allegation is that in Miller (No 2), the Supreme Court overturned over 300 years of jurisprudence, including its own 2014 decision that ‘the Crown’s actions in Parliament were sacrosanct and “cannot be questioned”’.  Political motivations have been attributed to the Court for this abrupt departure from its own jurisprudence.

Is this actually the case?  A dispassionate analysis shows that the Court has taken an approach consistent with its previous jurisprudence on article 9 of the Bill of Rights and has not altered its course for political or any other reasons.  This post surveys some of the relevant evidence.

The purpose of article 9

Article 9 of the Bill of Rights 1688 provides:

That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.

This part of the Bill of Rights was enacted in response to R v Eliot, Holles and Valentine (1629) 3 St Tr 294, in which three Members of Parliament were prosecuted for allegedly seditious statements they made in Parliament.  They were imprisoned in the Tower of London, where Sir John Eliot died in 1632 and the other two were detained for 11 years.

Lord Browne-Wilkinson, in Pepper v Hart, concluded at 638 that the ‘plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able… to discuss what they, as opposed to the monarch, chose to have discussed’.  Article 9 was an assertion of the rights and powers of Parliament, protecting it against action by the executive or the courts.

That purpose has been regarded by the courts as relevant in their interpretation of the scope of article 9.  The article is directed at protecting ‘freedom of speech and debates or proceedings in Parliament’.  It is not directed at protecting executive acts from scrutiny and does not protect actions, simply because they take place within the Palace of Westminster, such as the filling in of expense forms by Members of Parliament.

As Lord Phillips observed in R v Chaytor at [47], article 9 is ‘directed at freedom of speech and debate in the Houses of Parliament and parliamentary committees’ and this is ‘where the core or essential business of Parliament takes place’.  In considering whether other actions are protected by article 9, he observed that one should look to their connection with such proceedings and whether the absence of protection would be ‘likely to impact adversely on the core or essential business of Parliament’.  He did not consider that the scrutiny of expense claim forms would inhibit debate or freedom of speech or have an adverse impact on the core or essential business of Parliament.

Judicial review of executive decisions announced in Parliament

The mere fact that an executive decision is announced in Parliament is not enough to ensure that the decision is immune from judicial review in the courts.  If it were otherwise, governments would be constantly announcing controversial decisions in Parliament in order to gain protection from any judicial review proceedings.

Lest it be thought that such a view was confined to courts seeking to aggrandise their jurisdiction, the same conclusion was reached and supported in the 1999 report of the UK Joint Committee on Parliamentary Privilege.  In a detailed analysis of the legal position, it noted the increase in both the judicial review and legislative scrutiny of executive action and observed at [47]:

Parliament makes the law and, politically, calls the government to account for its actions.  But the government is also subject to the law and is therefore answerable to the courts if it exceeds or misapplies its powers.

The Committee noted numerous cases in which ministerial decisions, made either under the prerogative or statutory powers, have been subject to judicial review even though the decisions have been announced or explained in Parliament.  It considered that this should be welcomed by Parliament, adding at para [50]:

The development represents a further respect in which acts of the executive are subject to a proper degree of control.  It does not replace or lessen in any way ministerial accountability to Parliament… Both parliamentary scrutiny and judicial review have important roles, separate and distinct, in a modern democratic society.  Parliament must retain the right to legislate and take political decisions, but only the courts can set aside an unlawful ministerial decision.

In Toussaint v Attorney General of St Vincent and the Grenadines, Lord Mance on behalf of the Board of the Judicial Committee of the Privy Council also noted at [17] that the House of Lords had on a number of occasions permitted use to be made of ministerial parliamentary statements in judicial review proceedings.  He quoted from the above-mentioned report of the Joint Committee on Parliamentary Privilege, which observed at para [51] that article 9 is intended ‘to protect the integrity of the legislature from the executive and the courts’ and that it would be an ironic consequence if it were to ‘become a source of protection of the executive from the courts’.

Lord Mance also expressed the Board’s approval of the finding by the Court of Appeal in R(Javed) v Secretary of State for the Home Department, that the courts can review the validity of subordinate legislation, even though it has been tabled and approved in Parliament.  The Court in Javed had concluded at [37] that the ‘fact that, in the course of debate, the Secretary of State or others make statements of fact that support the legitimacy of the subordinate legislation, and that the House thereafter approves the subordinate legislation, cannot render it unconstitutional for the Court to review the material facts and form its own judgment, even if the result is discordant with statements made in parliamentary debate’.

This point was further developed by Lord Reed in Bank Mellat v Her Majesty’s Treasury (No 2) (dissenting on a different point).  He observed at [54]:

Since the executive is acting under powers conferred by Parliament when it makes a statutory instrument, it can only act within the scope of those powers as determined by the courts.  The subject-matter of the court’s supervision is the lawfulness of the decision taken by the executive:  there is no question of judicial supervision of the exercise by Parliament of its powers to approve the instrument or to withhold its approval….  If the court sets aside that decision, it then quashes the resulting order, but it does not review anything done by Parliament’.

One could equally say that if the executive is acting under prerogative powers when it prorogues Parliament, it can only act within the scope of those powers as recognised by the common law determined by the courts.  The subject-matter of the court’s supervision is the lawfulness of the decision taken by the executive.  If that decision is unlawful and set aside, the resulting prorogation will be quashed, but that does not involve the review of parliamentary action.  Indeed, the case of prorogation is less likely to attract article 9 protection than that of subordinate legislation, because subordinate legislation may be debated and actively approved in the course of parliamentary proceedings, whereas the Houses have no role in debating or approving prorogation.  They are simply informed of the Sovereign’s command and it is given effect.  If that decision was a nullity, then it cannot have been given effect, just as invalid subordinate legislation is not given effect by parliamentary approval.

The UK Supreme Court’s approach in Miller (No 2)

In Miller (No 2), the Court followed its previous approach in Chaytor.  It considered at [68] the purpose of art 9 and the impact upon the ‘core or essential business of Parliament’.  In this case, while prorogation took place in the presence of Members of both Houses (‘by virtue of Her Majesty’s Commission…, in Her Majesty’s name, and in obedience to Her Majesty’s Commands’) the Members had no power to speak or vote upon it.  Prorogation was an executive act which was ‘imposed upon them from the outside’.

The Houses had no capacity to exercise the prerogative to prorogue or to prevent it by the passage of a resolution.  Unless Parliament enacted a law to abrogate the prerogative and confer express powers on the Houses with respect to prorogation, as it has done in relation to dissolution by the Fixed-term Parliaments Act 2011, only the executive could exercise the power to prorogue.  It could not be argued, therefore, that prorogation was a power of Parliament.

But what of the 2014 authority that the Crown’s actions in Parliament are sacrosanct and cannot be questioned?  In R (Barclay) v Secretary of State for Justice, the Supreme Court, in comparing the grant of royal assent to the laws of Sark and those of the United Kingdom, observed at [48] that ‘the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom’.  While royal assent and prorogation are both prerogative acts exercised by the Crown outside of Parliament, and announced within Parliament (with the same commission in September 2019 giving royal assent to the Parliamentary Buildings (Restoration and Renewal) Bill as well as proroguing Parliament) there remain important distinctions between them.

First, the decision to pass bills is initially made by the two Houses (or House of Commons alone in limited circumstances), which advise the Queen to give her assent to them.  The Queen cannot give royal assent to a bill that has not been passed by the House of Commons and (in most cases) the House of Lords.  The passage of legislation is therefore a collective act of the constituent elements of Parliament, including the Queen – the ‘Queen in Parliament’.  Secondly, it is a key element of the sovereignty of Parliament that its enactment of primary legislation cannot be impeached or overturned by a court of law (except when there is a failure to meet a binding statutory manner and form requirement: R (Jackson) v Attorney General).

In contrast, as was noted by the Supreme Court in Miller (No 2), the Houses have no role in passing the prorogation of Parliament or advising the Queen to assent to it.  The commissioners announce a decision that has been made outside Parliament, not by the ‘Queen in Parliament’.  They act as commanded by their commission, not as individual members of Parliament.  Even though the announcement of prorogation gives it formal effect, the power remains an executive power, rather than one exercised by Parliament as a whole.

Conclusion

The argument that prorogation cannot be challenged in a court because it takes place in a parliamentary proceeding protected by article 9 of the Bill of Rights has the attraction of simplicity but the detriment of being too simplistic.  The jurisprudence on article 9 is dense and accommodates many qualifications and exceptions.  It is necessary to focus on the purpose of article 9 in determining its scope, which is precisely what the Supreme Court did in Miller (No 2).  Suggestions that it overturned centuries of authority for political reasons are unwarranted.

Anne Twomey is a Professor of Constitutional Law at the University of Sydney.

(Suggested citation: A. Twomey, ‘Article 9 of the Bill of Rights 1688 and Its Application to Prorogation’, U.K. Const. L. Blog (4th Oct. 2019) (available at https://ukconstitutionallaw.org/))