Judges, politics and democracy
Mike Macnair warns that the Supreme Court decision on prorogation could be used as a precedent to block radical measures by a Labour government.
A full eleven-judge panel of the Supreme Court of the United Kingdom on Tuesday ruled unanimously that Prime Minister Boris Johnson’s prorogation of parliament was illegal and void.1 A storm of controversy has at once broken out.
Johnson’s initial response has been that he “will respect” the decision, but disagrees with it, and will not be diverted from his plan to leave the EU, with or without a deal, on October 31. He has commented obliquely that “Let’s be in no doubt, there are a lot of people who want to frustrate Brexit.”2 Jacob Rees-Mogg characterised the decision as a “constitutional coup” (Geoffrey Cox has been frantically rowing back on this in the Commons Brexit Committee after criticism from senior Tories).3 Nigel Farage has similarly commented that “For right or wrong we now have a Supreme Court, Tony Blair set it up. It is a political court and it’s made a very political judgement.”4
As to what comes next, the government has been kite-flying the idea of a new vote for a general election by passing a short act which would pro tanto repeal the Fixed Term Parliaments Act to allow an election to resolve the ‘deadlock’.5 The difficulty is that for the opposition parties in general and the MPs Johnson has expelled from the Tory Party, to vote for such a motion would be turkeys voting for an early Christmas.
The suggestion has been made that the Scottish National Party as well as the Democratic Unionists might come on-side; a poll reported in the Express Sept 3 has the SNP potentially winning 52 of the 59 Scots Westminster seats.6 It is not clear that the arithmetic would work even so, and the SNP might find that their obvious betrayal of the opposition to Brexit radically undermined their polling numbers.
The Telegraph has two-sided comment, though slanted overall against the decision. Their leader claims:
For centuries, the UK constitution has been a delicate balance of powers shared between parliament, the courts and the crown represented by government. That balance has, with no real debate, been peremptorily tipped in favour of the former against the latter. And yet it is the executive in the form of Boris Johnson which is trying to carry out the democratic will. When they finally get the chance, the voters will judge who is in the right.7
The comment page has three articles. Janet Daley and Philip Johnson run the Johnson line that the Supreme Court is an undemocratic manoeuvre against Brexit and Labour must concede a general election now. Barrister, journo and blogger Matthew Scott has a different view:
Given that the official opposition is now a strange personality cult of unrepentant Marxists committed to expropriating private property, conservatives of all kinds should be profoundly grateful that the Supreme Court has reaffirmed this limitation on the prime minister’s powers.8
The Mail similarly, within an overall slant against the decision, has an interesting exchange between long-standing traditional-rightist columnist Peter Oborne and younger Oxford academic lawyer Richard Ekins.9 Ekins argues that the court has overstepped the line between law and politics, and that control of prorogation should be the job of the ‘political constitution’, not of judicial review.
The solution is to remind judges about the proper limits of judicial power - and the place to start might be for the next Parliament to restate the Bill of Rights’s prohibition on judicial interference in parliamentary proceedings, and to strip the court of any jurisdiction to challenge prorogation.
Oborne, in contrast, argues against any such approach:
This morning, as he returns to Britain to face the music, Boris Johnson has a choice. Does he double down, take the advice of Cummings and continue his campaign against the rule of law and against the British tradition of parliamentary sovereignty? Or does he learn the lesson of yesterday’s wise and responsible court judgment?
The Times carries a comment by recently retired Supreme Court Justice Lord Sumption which directly opposes Ekins’ argument:
The objection to judicial intervention in politics is that it undermines the democratic legitimacy of public decision-making. The court’s judgment, however, is concerned not with the political issues of Brexit but with the process by which those issues are to be resolved. Its effect is to reinstate parliament at the heart of that process.10
Given that Sumption has recently published a book arguing for reduced judicial intervention in political matters,11 that he should here support the UKSC decision has more force than the liberal pro-judicial review ‘usual suspects’.
Lord Finkelstein, a Times commentator since 2001, can also see advantages in the court’s ruling:
The area of judicial review and constitutional judgments is expanding, which will bring about a debate about the judiciary. It would be better, however, if this took place at a cooler moment. And better too if, when it did, Conservatives reflected on the value of the courts limiting prerogative powers exercised by ministers in the name of the queen.
One of the precedents cited yesterday was a 1965 ruling that the executive can’t exercise such power in order to deprive people of their property without compensation. It doesn’t require much imagination to think of circumstances where that sort of ruling might come in handy.12
At the time of writing, three left papers have responded to the UKSC decision. Solidarity has very little to say, merely reciting the basic decision and Johnson’s immediate response. They clearly added reference to the decision to their front-page leader at the last minute. For the Morning Star:
The court’s verdict is a defeat for Johnson. But he is not without options. His immediate response from New York struck the combative tone we can expect from the government. He made no bones about accusing the court of unjustified interference in the political sphere.
Johnson’s narrative has been clear for months: he and only he will deliver the departure from the EU that the people voted for in what - as Corbyn was right to remind Labour conference today - remains the biggest democratic vote in our history.13
What they think is needed is “... a relentless focus by Labour and the whole movement on forcing and winning a general election as soon as possible.” As we have commented before, the demand for an early general election is now Johnson’s and the Tories’ agenda.
Socialist Worker falls into the same trap. Charlie Kimber writes that:
There needs to be an election now—and Labour MPs need to vote for it as soon as parliament reassembles. ...
Calling it should not depend on the timetable of Brexit, but on the overriding need to get the Tories out.
Johnson’s only card left is to pose as the defender of democracy against elite judges, MPs and the media who ignore 17.4 million Leave voters.
The more an election is delayed in favour of waiting for no-deal to be avoided, the stronger his fake claims will look.
The way to deflate Johnson is to take him on at the polls.
Labour should put forward a Brexit that favours working class people, to highlight the issues of austerity, racism and climate change where the Tories are so weak.
Kimber does, however, unusually on this occasion have the advantage of recognising the constitutional issue where the Morning Star missed it:
The future can’t be left to judges. While many may celebrate the court’s verdict, it underlines how judges are able to reach into highly political decisions. It is now easier to imagine them striking down radical measures from Labour.14
In the light of the arguments of Matthew Scott and of Lord Finkelstein this point has considerable weight.
How should we respond to this judicial decision? There are three levels: the decision itself and its constitutional implications as such; the arguments for the decision and their constitutional implications; the immediate political effects of the decision in its context.
Johnson used the ‘royal prerogative’ to ‘prorogue’ parliament. The court has decided that he did this for no good reason (paras  and ) and without considering parliament’s duties in relation to Brexit (para ), and that Johnson’s advice to the queen to prorogue was therefore unlawful and void (para ).
The prerogative is those rights which the queen has by common law, as opposed to under acts of parliament, and by virtue of being queen, as opposed to - for example - property rights. Quite a lot of former prerogative rights have either been abolished, or replaced by statutory provisions under acts of parliament. What remains are a rag-bag set of provisions to which for some reason neither happened.
‘Prorogation’ is one of them; it is to bring the parliamentary session to an end (thereby terminating all bills which are in progress, so that proposers have to begin again from the beginning) without bringing to an end the current parliament and thereby leading to a general election. It is therefore more potent than an adjournment or recess, which leaves the session in being and the existing business pending. On the other hand, because it is a prerogative power, it can be done without parliamentary consent; recesses are done by parliamentary resolution.
If we ask why the prerogative of prorogation exists at all, the answer is, first, that it is a relic of the old absolute monarchy, which summoned, prorogued and dismissed parliaments at will. In 1689 parliament introduced limited controls on prorogation - the requirements of annual statutory authorisation of taxes and the armed forces, still in existence. Second, it was convenient to party and prime ministerial government as it developed in the 18th century and after that prorogation and dissolution, the calling of elections, should remain prerogative powers to prevent the House of Commons getting out of control.
There is, therefore, no good reason for prorogation to exist in a democracy, or even in the sort of ‘mixed constitution’ in which the government is supposed to be answerable to parliament. The power of the two houses of parliament to adjourn themselves is perfectly sufficient. It follows, therefore, that the argument that the UKSC decision is anti-democratic because it interferes with a government decision is rubbish. If anything was anti-democratic it was the prorogation.
The arguments for the decision are a little more complicated. The traditional understanding was that exercises of the royal prerogative were not subject to judicial review. Hence the cumbersome mechanisms of the Bill of Rights 1689 and the Armed Forces and Finance Acts to prevent long prorogations. The Divisional Court followed this view, arguing that the issue was “not justiciable”, or alternatively was “political” so that there was no measure against which the court could judge its correctness.
The UKSC has responded to these arguments by relying on two lines of precedent; the first being (fairly recent) cases in which proceedings formally under prerogative have been judicially reviewed, where they were not too close to the political functions of ministers (paras  and ); and the second being a much older line of cases which say that the courts can decide on the existence and limits of prerogatives. It is in this context that they cite (20th century) cases on expropriations (paras  and ).
The difficulty here is that on the one hand, proroguing parliament is core “politics”; and on the other, the existence and limits of the prerogative of emergency expropriation was controversial all the way back to the late middle ages, and the existence and limits of prerogative of prorogation has not previously been questioned. The solution the UKSC adopts is to say that the lack of reason for the advice takes the case outside the limits of the prerogative of prorogation.
This is a constitutionally dangerous argument, because it implies that any decision the court finds lacks sufficient reasons can be quashed as ultra vires (beyond the limits of the power). And this in turn amounts merely to the court disagreeing.
That said, courts have routinely done this to local government - famously, for example, in the 1982 ‘Fares Fair’ case.15 The rule-of-law rhetoric found in the prorogation is run-of-the-mill. The background should remind us, as Kimber says, not to be too quick to celebrate judicial decisions.
But if anything the prerogative powers used by the prime minister are a more acceptable target for judicial review than local government. If we won a Commons majority, we would want to abolish the monarchy and House of Lords and govern through democratic decisions - not to vest old monarchical prerogatives in government.
On the political background to the decision and its implications from that point of view I can and must be very brief. The most fundamental point is, in fact, made by Lord Sumption:
Most of our difficulties over the past three years have arisen from the misguided attempt to insert a referendum into a parliamentary system. Leaving the EU requires new laws and political judgments about our future relationships with the EU.
Parliament is the supreme source of law. It is also the only body to which ministers can be continually accountable, and is central to our political system. A referendum can serve none of parliament’s functions ...
There has been a good deal of talk of ‘coups’ on both sides. But so far as there has been a coup at all, it took place in 2016 when the Tory leadership contenders and the Brexiteer press barons claimed that the result of a referendum - explicitly legislated as advisory - was binding on parliament and more democratic than elections. Bonaparte, Hitler, Khomeini is the political lineage of this argument. It sets up a trap which we are still in.
Available at https://www.supremecourt.uk/cases/uksc-2019-0192.html.↩︎
Telegraph Sept 25.↩︎
Guardian politics live Sept 25.↩︎
‘Farage grilled by BBC’s Jon Kay over ‘dangerous’ statement on ‘political’ Supreme Court’ Express Sept 25.↩︎
‘Live Brexit latest news: Boris Johnson will attempt to force through General Election for third time, Geoffrey Cox indicates’ Telegraph Sept 25.↩︎
‘Election 2019 polls: Scotland will become dominated by SNP in snap election - polls’ Express Sept 3↩︎
Leader, ‘The electorate will be the final judge’ Sept 25.↩︎
‘Healthy government needs the rule of law’ Sept 25.↩︎
‘Bad for democracy and the law... or teaching Boris Johnson a lesson? Oxford professor RICHARD EKINS locks horns with PETER OBORNE over the Supreme Court’s verdict’ Mail Online Sept 25.↩︎
. ‘It’s about the process, not the politics’ Times Sept 25.↩︎
. Trials of the state: law and the decline of politics Profile Books (August) 2019.↩︎
. ‘This court ruling is a car crash for the Tories’ Times Sept 25.↩︎
. ‘Editorial: Labour must use a recalled Parliament to bring the government down’ Sept 24.↩︎
. ‘Political chaos in Britain after court judgement - drive the Tories out now’ Sept 24.↩︎
Bromley LBC v. GLC  WLR 62; Griffith  Cambridge Law Journal pp216-219.