Friday, 20 September 2019

That Would Be a Constitutional Matter

The UK Supreme Court will be ten years old at the beginning of next month. It was the creation of the Blair government (set up by the 2005 Constitutional Reform Act) and exhibited both the virtues and vices of its authors' political culture. It rationalised a clearly antique and inefficient system, scrupulously separating the political and judicial powers of the Lord Chancellor and making the court independent of the Justice Ministry, but it also saddled the court with a name that raised expectations derived from the fantasy of The West Wing and thus simultaneously politicised it. The political role of the US Supreme Court is determined by two features of the US system: the presence of a written constitution that requires interpretation, and the tension that arises between the two main branches of government, Congress and the Presidency, each of which has independent democratic legitimacy. Neither feature is relevant to the UK, despite this week's hearing on the right of the executive to constrain the legislature by proroguing Parliament.

In the UK, there is only one institution that has democratic legitimacy and that is the House of Commons. We the people do not elect the monarch, the House of Lords or the Prime Minister. The executive has an indirect legitimacy only by virtue of the support it enjoys in the Commons. We would regard any attempt by the unelected institutions of the state to constrain the Commons as undemocratic. This should logically apply to the executive as well as the monarchy or the Lords, and not just when the executive does not command a majority in the House. When the government "exceeds its powers" it is in effect arrogating authority that the Commons has not granted it. This was essentially the judgement in the Miller case, which obliged the government to seek parliamentary approval for the invocation of Article 50, on the grounds that only the Commons could approve an executive action that would effectively repeal existing statute.

A similar argument was made in a submission to the Supreme Court this week by John Major: that were there to be no restraints on the exercise of prerogative power in relation to prorogation, then in the event that the Commons approved a bill to abolish the executive's rights in this area, a Prime Minister could simply prorogue Parliament and thereby cause the bill to fail. Similarly, a Prime Minister who loses a vote of no confidence could use the 14 day grace period provided under the Fixed Term Parliaments Act to prorogue Parliament and thereby escape the consequences of defeat. Of course, this would only delay the inevitable reckoning, but it would also be a clear abuse of power that involved the executive impeding the Commons. The point generalises beyond the narrow issue of prorogation: prerogative power can effectively be used to constrain the Commons without its consent.

The long history of the struggle for supremacy between Crown and Parliament has seen an inexorable advance by the latter. This has been boosted by the moral authority of an expanding democracy, but it has also benefited from executive over-reach in the exercise of prerogative power. Each attempt to constrain the Commons has resulted in a counter-movement to restrain the executive. Much of this has taken the form of establishing precedents, thereby evolving new conventions. For example, after the debacle of the Iraq War and the 2015 vote on intervention in Syria, it is now inconceivable that a government would commit the UK to military action without the express approval of the Commons. This isn't explicitly mandated by law or even in the pages of Erskine May, but it is now commonly understood that the executive no longer has an exclusive privilege to initiate military action except in extremis.

The legal community's consensus on the current debate is, predictably, that the court should not be drawn into making judgements about political decisions. The alternative proferred by the likes of David Allen Green is that Parliament should legislate to formalise constitutional conventions around the use of prerogative power, rather than commit to the larger challenge of developing a written constitution: "Each prerogative power that can be exploited by the prime minister needs to be made subject to formal requirements such as the approval of parliament". Crucially, this acknowledges that authority ultimately must vest with the Commons, whether through explicit statute or contingent approval, which means that the Supreme Court should have little or no role to play. That the Court is now involved highlights the absence of a formal constraint on the executive, however it does not mean that the authority of the Commons can be ignored on a technicality.

The Supreme Court can pass judgement on secondary legislation created by the executive, but it cannot challenge primary legislation enacted by the Commons (though it can make a "declaration of incompatibility" in  respect of the European Convention on Human Rights). The Court itself is the creation of the Commons and thus subject to its authority. The question of "justiciability" in respect of the executive's exercise of the prerogative power of prorogation is something of a red herring. What matters is not existing statute but the intention of the Commons. The question is whether the authority to prorogue Parliament ultimately derives from the Commons itself. Given that the only answer consistent with democratic legitimacy is "yes", then it's hard to see the Supreme Court finding in the government's favour.

If the Court decides that this particular prorogation is unlawful, it may do so in a manner that does not question the executive's right to exercise prerogative power. In other words, it may simply find that the government made an administrative error and acted ultra vires. In theory, Johnson could recall Parliament and then, more carefully, prorogue it again. However, that would also provide an opportunity for the Commons to seize control of the order paper and pass a bill mandating that all future prorogations be approved by the House. If the Court finds against the government, it is still likely that legislation to formalise and make watertight this understanding will be passed anyway, either by this or a future parliament. The bottom line is that even if Johnson gets away with it on this occasion, the executive's prerogative power will probably be further reduced. He has recklessly led the Crown to another defeat.


  1. You argue that since all legitimacy derives from the commons including ultimately prorogation power, the supreme court could well we'll take the view it should find this issue iusticable, since prorogation in this case clearly does not command parliament's approval.

    But is it really so simply. Parliament did have an option, faced with a government acting against its wishes. It could have held a vote of no confidence. The supreme court cannot help but notice that parliament didn't do this, for political reasons - namely to avoid either an election or the prospect of Corbyn as PM of a coalition. By not doing this parliament has placed the supreme court in a political position. Does it's democratic legitimacy extend to being able to do this too? Given it has waived the use of its conventional power, why should the supreme court agree that the commons should be able to extend its power over itself the supreme court ???

    1. The principle of sovereignty means that parliament is right even when it's wrong.

      More pragmatically, the government engineered a situation where the Commons was faced with a choice: pass a bill to mandate an extension or move a vote of no confidence. There wasn't time to do both and the consensus, which may certainly have been informed by partisan calculation on the part of some, was that an extension had to take priority in the short-term. In those circumstances, I don't think the Supreme Court could infer that the Commons did not wish to exercise power over prorogation.

  2. 'parliament is right even when it's wrong'. Would the supreme court actually agree with that statement?

    How would you respond to Helen Thompson's argument that our Constitution is fundamentally political

    I can't paste the link, but her argument is summarised on the LRB blog for 29 sept, under Talking Politics

  3. I think Thompson is correct (I presume this is the link:

    My argument is that the SC faces a dilemma. If it finds that proprogation is not justiciable, then it is inviting the Commons to a) make it so and b) assert that the SC should as a matter of principle recognise that any action by the executive to constrain the Commons is unconstitutional.