Introduction
Reading the recent Miller No. 2 decision you would be forgiven in thinking that Boris Johnson had the chutzpah to advise the Queen to unilaterally decree a whole range of new criminal offences (Proclamations) – all under the guise of the prorogation power.
Indeed, the Miller No. 2 decision paints itself as pure orthodoxy. We are reminded that it is the emphatic duty and quintessential task of a law court to define the scope of a prerogative power, clearly a justiciable matter. And the scope of the prorogation power, so it turns out, is now limited by this rather innocuous-sounding principle (at para [50]):
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.
The above principle certainly has some superficial appeal. But do not be fooled. This accountability principle, as I shall call it, is as revolutionary as it is dangerous. In what follows, I want to identify three key flaws of the Miller No. 2 decision.
Flaw 1: Ignoring Inconvenient Precedents
The first curious aspect of the Miller No. 2 judgement is its decision to simply ignore centuries of historical precedent. Yet, surely, any sensible discussion of the scope of the prerogative power should look at any relevant usage since time immemorial, particularly when confronted with exceptional circumstances (R v Hampden (1637) 3 State Tr 826; AG v De Keyser Royal Hotel Ltd). So, did vice-regal officers and monarchs, old or new, drafters of constitutions throughout the Commonwealth from India to Jamaica, from Barbados to Australia, or leading political adversaries to any partisan prorogation ever suggest that there were judicial, as opposed to prudential political, constraints on the exercise of this power?
Of course not. The constitutional prerogatives of summoning, proroguing and dissolving parliament were “very large”: FW Maitland, The Constitutional History of England (1908) 422. Historically, prorogation had been used to stop bills that the Sovereign and his advisers abhorred economically to stopping investigations which frustrated the ability of the Crown to successfully engage in international negotiations: see, eg, Charles Davison, “Prorogation: A Powerful Tool Forged By History” (2009) 34 Law Now 13, 14; William Wade, Christopher Forsyth and Ivan Hare, The Golden Metwand and The Crooked Cord (1998) 73; Wouter Troost, William III: The Stadholder-King (2005) 149; Kara Dimitruk, “I Intend Therefore To Prorogue” (2018) 22 European Review of Economic History 261-297.
Reflecting this historical background, a prorogation order could be issued whenever the Sovereign (or her representative) thought to it to be “necessary” and “expedient”: see, eg, The Charter of Massachusetts Bay, 1691; Samuel Morison, Sources and Documents Illustrating the American Revolution (1923) 89; Erskine May, A Treatise on the Law, Privileges, Proceedings and Usages of Parliament (1868) 45 (“Parliament, as it has been seen, can only commence its deliberations at the time appointed by the queen; neither can it continue them any longer than she pleases”); NSW Constitution, s10A. and 11; see also Northwest Ordinance, 1787, s11; Louisiana Ordinance, 1804, s4.
Of course, today, this broad power is, by convention, exercised under ministerial advice; the pleasure of Her Majesty to prorogue will in practice happily coincide with the pleasure of the Prime Minister. Critically, however, nothing is said about prorogation when “the court pleases”; nobody from Coke, to Blackstone, to the American Colonists, to May, to Maitland, to Dicey ever suggested that the power to prorogue was limited by the displeasure of the courts.
Indeed, historically, when the prorogation power was abused, those aggrieved did not rely on the courts to enforce the political conventions of responsible government. Rather, representatives of the people asserted parliamentary (or popular) sovereignty, ex post facto, by legislating to regulate the power to prorogue. After the power of prorogation was condemned in the Declaration of Independence, the American Colonies responded by strictly regulating, or altogether abolishing, the prorogation power: see, eg, Virginia Constitution, 1776, Article X; Massachusetts Constitution, 1780, Article V; Article VI; New York Constitution, 1777, Art. XVIII; Delaware Constitution, 1776, Art. 10; South Carolina Constitution, 1776, Art. VIII; South Carolina Constitution, 1778, Art. XVII; Maryland Constitution, 1776, Art. XXIX; Federalist No. 69 (“The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes”).
Likewise, in the UK, when prorogation was abused, the Westminster Parliament responded accordingly: see, eg, 16 Car. I, c. 6-7 (Triennial Act 1641) (“Noe Parliament henceforth to bee assembled shall be dissolved or prorogued within fiftie dayes att the least after the time appointed for the meeting thereof”). For a recent Australian legislative response to a rogue prorogation see NSW Constitution Amendment (Prorogation of Parliament) Act 2011.
Miller No. 2 gets it exactly right when it observes (at [41]) that the royal prerogative powers have been made increasingly subject to the overriding powers of a democratically-elected legislature. That insight is particularly pertinent here, given prorogation has always been understood to be an inter se matter between the Crown and Parliament, requiring no interjection by the courts, and given Parliament itself knows how to aggressively respond to any abuses involving the prorogation power.
Moreover, as Geoffrey Cox points out, if Miller No. 2 is right, virtually every prorogation in the last 50 years was also probably invalid. Indeed, the court never quite tells us: did John Major violate the principle of accountability when he chose to prorogued Parliament in 1997 following the cash-for-question scandal? Did PM Stephen Harper violate the principle of accountability when he prorogued Parliament in order to terminate an inquiry into the treatment of Afghan detainees? Did Dalton McGuinty, in 2012, violate the principle of accountability in order to terminate an inquiry into the controversial cancellation of the construction of two gas-fired power plants? What about the various attempts to defer the result of a motion of no-confidence? Do partisan prorogations resulting from intercameral conflict violate the principle of accountability? The accountability principle may have been violated several dozens of times across British Empire or the Commonwealth in the last 200 years.
Two related points thus emerge. Firstly, the prorogation power was plenary in nature; it acknowledged no legal limits, except those imposed by statute or (in case of various Commonwealth realms) an express constitutional requirement – for example, that Parliament must sit at least once every six months. Secondly, when the power of prorogation was allegedly abused – from Charles I to Charles II to George III to arguably PMs of recent vintage – no major players (virtually no one) thought prorogation was legally limited by some vague government accountability principle, although such an argument could easily have been made. The remedy was always political, not legal in nature.
Thus, far from defining the scope of the prerogative, the Court redefines the true scope of the prerogative, for it is a distinctive and useful feature of the prorogation power that it is a constitutional fire extinguisher. Prorogation can be used to cool tensions, to defuse heated passions, to foster repose and reflection in recalcitrant MPs or Parliament; it was a cheaper alternative to dissolution, deployed when the Crown, as head of the executive, did not see eye-to-eye with Parliament over contentious questions of high policy, or did not want it to exercise its investigative constitutional functions for whatever reason. These inconvenient facts of history might explain why the judgement is high on rhetoric and bereft of any historical precedent, either local or international, old or recent. The court might not wish it to be so, but the result is a disingenuous decision, a judicial emasculation of the very power the court was attempting to construe. But when judges look to vague made-up principles, rather than history, they just look into themselves.
Flaw 2: A Politicised Court
The Court tells us this case is one-off and exceptional (paras [1] and [57]). Do not believe it; eternity is a long time. Indeed, recall just recently, in Miller No. 1, we were assured (at [146]) that judges are neither the parents nor the guardians of political conventions; they are merely observers who can recognise the operation of a political convention but cannot give legal rulings on its operation or scope. And recall Lord Reed warned us (at [240]) that legalisation of political issues may be constitutionally inappropriate and become fraught with risk, not least for the judiciary. Oh, how things quickly change under our new Brexit-is-Different jurisprudence. The Court has now moved from being a passive observer of political convention to an active player, indeed umpire, of political convention and etiquette. It has attempted to do indirectly what it could not do directly. That is, it has sought to enforce legally unenforceable conventions of responsible government by distilling a general principle of accountability implicitly underpinning those conventions (executive accountability), and then transforming that general principle into a legally enforceable one against the Crown, a legal principle that almost everyone who ever lived had somehow missed. Was the 2008-09 Harper prorogation unlawful? Is it now unlawful for a socialist PM, faced with a minority government, to prorogue Parliament to prevent a bill privatizating the NHS from working its way through Parliament, following a referendum saying no to privatization?
Full marks for creative thinking; but under the guise of this new-found principle, requiring a “reasonable justification” for any future prorogation, the court, by quashing a prorogation order in toto, can indirectly decide everything from what legislation ought to be voted on by Parliament to who ought to form government when a governing-coalition fractures. In attempting to prevent alleged executive overreach the court has simply sowed the seeds for further judicial overreach. Under the guise of a vague government accountability principle, allowing the Courts to balance the interests of the executive against that of Parliament, the Court can now readily interject itself into the political fray, acting as the new Great Arbiter and King-Maker within the policy-making process.
Flaw 3: Ignoring the Crown and Political Constraints
Another striking aspect of the decision is its self-aggrandizing nature; there is no mention of any other body or person to act as defender of Parliamentary sovereignty. The court sidelines, indeed usurps, the role of the Crown in assessing the suitability of any prorogation. To that end, the court conveniently says it has “no view” on whether the Crown must accede to Ministerial advice in every circumstance (para [30]) whilst being prepared to recite the potential extreme “abuses” associated with the power of prorogation (para [42]-[43]). But surely any intelligible discussion on this point requires some discussion of the reserve powers. If the reserve power to refuse a rogue prorogation exists, as precedents and authorities, including English authorities (cited in Chapter 9 of the Veiled Sceptre by Anne Twomey) all suggest, then these extreme hypotheticals evaporate. But such a meaningful discussion is ignored, I suggest, because it is inconvenient; the court wants to paint itself, rather than the Crown, as the new, glorious guardian of the principles underpinning responsible government.
But the unsatisfying nature of the decision does not end there. In response to the suggestion that Parliament must meet in order to fund itself, the Court suggests these practical constraints offer “scant reassurance” against abuse. But why? Why would civil servants (including those who advise the PM!) not being paid, ongoing media scrutiny, vigorous protests and dissent from the opposition, and possibly even within the governing party, and the moral authority of a Sovereign insisting that Parliament should convene in face of protests and civil unrest together constitute a scant reassurance? Apparently, only this court can save us – never mind that in 1909, in Western Australia, Governor Gerald Strickland managed to wisely refuse a prorogation, given supply would run out before Parliament would reconvene.
And, surely, if the government wants to be re-elected again it must reconvene Parliament in order to show voters how effective it is at implementing its prior campaign promises, thereby giving people a reason to vote for the government again, lest the incumbent leader face a leadership challenge But, again, why is the incentive for re-election a scant reassurance?
And why could Parliament not just pass a law, like it has many times before (see above), limiting the power to prorogue? Again, there are no answers given to this question.
What Now?
After the next election, Parliament should simply enact a statute which says:
Parliament shall be prorogued whenever Her Majesty thinks fit.
No court shall have any jurisdiction whatsoever to adjudge the legality of any prorogation proclamation, purported or otherwise, made by Her Majesty. Any decision to prorogue Parliament, purported or otherwise, and the advice, if any, requesting that Parliament be prorogued, shall not be challenged, declared invalid, impeached, questioned, quashed or impugned in any way whatsoever in any Court of the Land.
For the purposes of the Article 9 of Bill of Rights, prorogation shall be deemed to be a proceeding in Parliament.
The American people cannot easily overrule the US Supreme Court. Nor can a single member of the EU unilaterally overrule a decision of the ECJ. But, luckily, one of the happy incidents of living in the UK, as Miller No. 2 reminds us (at [41]), is that the UK Parliament is supreme – indeed, so supreme that it can prevent the UK Supreme Court from becoming a rival to the US Supreme Court, with in its ever-inflated desire for political attention, authority, and relevance.
Steven Spadijer, DPhil candidate, Oxford University
(Suggested citation: S. Spadijer, ‘Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy’, U.K. Const. L. Blog (7th Oct. 2019) (available at https://ukconstitutionallaw.org/))
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