In Court

Stephen Sedley

For at least four centuries the courts have contested the claims of monarchs to untrammelled authority. ‘The king,’ Chief Justice Coke said in 1611, ‘hath no prerogative but what the law of the land allows him.’ Although the historic settlement of 1688-89, which gave us today’s constitutional monarchy, left in existence a wide swathe of prerogative powers, these have become subject to two governing principles. One is that they cannot be enlarged. The other is that both their constitutional extent and their lawful use are subject to judicial review. If the rule of law is to mean anything, it has to mean this.

It is because in the years that followed the ousting of the Stuarts, as Sir William Anson neatly put it in The Law and Custom of the Constitution, the Crown ceased to govern through ministers and ministers began to govern through the Crown that an issue like the prorogation crisis has been able to arise. The role of the Privy Council, the prerogative body composed today of about seven hundred holders and former holders of high public office, has shrunk for practical reasons to the token function of proclaiming the successor to the throne. Into the resulting void have stepped successive governments, giving the cabinet and its ministers, in the capacity of privy counsellors, regular private access to the queen, who by convention signs whatever Orders in Council are placed before her. This is how it was possible for a trio of politicians – Jacob Rees-Mogg as leader of the Commons and lord president of the Privy Council, Baroness Evans as leader of the House of Lords, and the government chief whip, Mark Spencer – to turn up at Balmoral and in the Privy Council’s name get the queen to prorogue Parliament.

Because this process takes place without the prior knowledge of Parliament or the public, the first the world knew of the Order in Council proroguing Parliament, which the Supreme Court has now struck down for illegality, was as a political fait accompli. In the not so distant past this was the method used by Jack Straw, as foreign and Commonwealth secretary, to deprive the Chagos islanders of their right to return. It is no way to run a democracy, and it is to be hoped that in less febrile times the entire prerogative procedure will be made public.

More dramatic than the lifting of the procedural veil are the Supreme Court’s substantive reasons for striking down the prorogation order. They are essentially that the ineluctable effect of the prorogation was not the constitutionally proper one of clearing the decks for a new legislative programme, but the illicit one of bringing parliamentary processes to a prolonged and unjustified halt, whatever the motive might be. It’s not easy to envisage a more serious finding of political malpractice, and difficult to think of a time when a prime minister implicated in it would not have felt honour-bound to resign.

This is underscored by the exiguous documentation produced to the court. On a memorandum from the government’s director of legislative affairs, Nikki da Costa, which at least attempted to face some of the constitutional issues, Boris Johnson had written:

(1) The whole September session is a rigmarole introduced [words redacted] t [sic] show the public that MPs were earning their crust.

(2) So I don’t see anything especially shocking about this prorogation.

(3) As Nikki nots [sic], it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.

The excised words, it turns out, were ‘by girly swot Cameron’. A minute of a cabinet conference call on 28 August was also disclosed, revealing little more than a concern not to be wrongfooted in manipulating a prorogation. Any suggestion that Johnson had given informed and conscientious consideration to the constitutionality of what he was doing will have withered on counsel’s lips.

How, then, had the High Court in London been initially persuaded – as the Outer House of the Court of Session in Edinburgh had also been – that the issue, being political, was not justiciable? In spite of its prestigious composition (the lord chief justice, the master of the rolls and the president of the Queen’s Bench), the court had started at the wrong end: because prorogation of Parliament was essentially a political act, they reasoned, the courts had no power to look into its legality. ‘The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the state,’ they said, and ‘the relationship between the executive and Parliament is governed in part by statute and in part by convention. Standing orders of both Houses elaborate the procedural relationship between the executive and Parliament. This is territory into which the courts should be slow indeed to intrude by recognising an expanded concept of parliamentary sovereignty.’

In the Supreme Court the government’s contention that the entire issue was off limits for the courts turned out to be something of an own goal. To the contention that it was a purely political issue, the court in effect responded that breaking the law for political reasons was still breaking the law. Answering the argument that the Bill of Rights by its ninth article explicitly forbade the impeachment or questioning of ‘proceedings in Parlyament’ in ‘any court or place out of Parlyament’ the justices patiently explained that the whole point was that the challenged acts had taken place not in Parliament but behind its back.

Amplifying their reasoning, they pointed out that there was no need, for the purposes of the challenge, to expand parliamentary sovereignty: it was a given. So, too, was parliamentary accountability. But

the prime minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued … The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament.

They went on:

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.

It followed that the lawfulness of the prime minister’s advice to the monarch was a justiciable question, to be answered by existing legal standards: ‘it is well established … that the courts can rule on the extent of prerogative powers. That is what the court will be doing in this case by applying the legal standard which we have described.’ That standard determines the limits of the prerogative power, ‘marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand. An issue which can be resolved by the application of that standard is by definition one which concerns the extent of the power to prorogue, and is therefore justiciable.’

If you watched the livestreamed delivery of the court’s judgment, you will not have heard these passages. They come from the full-length judgment of which Lady Hale, the president, was delivering a summary. The summary is itself a document of lambent cogency which ought to become required reading for students, whether of law or politics or for that matter the English language.

The problems of Brexit have not been laid to rest. Johnson’s overt refusal to accept that the law is what the Supreme Court says it is has both personal and constitutional ramifications which may take a long time to play out. More immediately, the legislation sponsored by Hilary Benn requiring the prime minister to ask the EU for an extension to Article 50 in the absence of an exit agreement before Halloween contains no enforcement mechanism. One may have to be devised by the courts. And there is no guarantee that, if Johnson does ask, his request will not be obligingly vetoed by a state with its own populist leadership, such as Hungary.

This said, what the prorogation debacle has brought back into focus is not so much the ninth article of the Bill of Rights as the first: ‘That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.’ The Supreme Court, as much by its unanimity (in Gina Miller’s first case in January 2017 it was divided 8-3) as by its reasoning, has re-lit one of the lamps of the United Kingdom’s constitution: that nobody, not even the Crown’s ministers, is above the law.