30 September 2019

Why the Supreme Court got it wrong on prorogation

By William Norton

As you may have heard, on 24 September the Supreme Court decided that the Prime Minister unlawfully advised Her Majesty to prorogue Parliament between 10 September and 14 October, on the grounds that this was an unreasonably long period to achieve the Government’s declared aim of preparing for a new Queen’s Speech.

This is the latest example of the Supreme Court making a mess of the British Constitution. This time the eleven justices were unanimously wrong, instead of merely eight of them.

The judgment starts off well. The Court notes that prerogative powers can only exist where recognised by law (correct) and to the extent not circumscribed by that law (correct). Therefore prerogative powers must be “justiciable” – subject to review by a court – because a court is obviously able to assess the extent of any law (yes, but just because you can define something doesn’t give you the power to amend it).  Unlike a recess, prorogation prevents Parliament from “holding the executive to account” (correct). Unlike a dissolution, there are no statutory restrictions on prorogation (correct – as the Court notes, the power of prorogation is expressly excluded from the restriction of the power to dissolve in the Fixed Term Parliaments Act). Therefore, in default of anyone else, it must be the function of the courts to assess whether the power has been exercised reasonably (wrong – the logical fallacy of presupposing what you are meant to be deducing).  An unnecessarily long prorogation frustrates the function of Parliament in “holding the executive to account” (quite possibly true, but irrelevant), therefore the Government is being unreasonable, hence unlawful (but if Parliamentary scrutiny really is the fundamental basis of the Constitution, any prorogation is unlawful, not just long ones.)

The Supreme Court has correctly identified a power vacuum, and then incorrectly decided to leap into it.

It has never been the job of the Supreme Court to police prorogations. A court can undertake judicial review of the Government’s exercise of its statutory powers. Quite possibly, since 15 September 2011, the Supreme Court can opine on whether a dissolution has been carried out properly. But if Parliament had intended the courts to have jurisdiction over prorogations, they would not have expressly excluded the topic in section 6(1) of the 2011 Fixed Term Parliament Act. So it must remain for Parliament to police.

Was the Prime Minister secretly intending to frustrate his opponents by proroguing, rather than recessing, Parliament, in breach of the spirit of our constitutional conventions?  Of course he was. Helpfully his genius assistants had been briefing the press for weeks that they had this move up their sleeve. Joanna Cherry MP started her court action in Scotland in July, so it is difficult to claim Parliament was ambushed. Prorogation had as much shock value as a murder in Midsomer.

But that does not alter who is responsible for sanctioning the Prime Minister. Parliament had the chance, and they blew it. The Supreme Court judgment notes that the Commons remained sitting between 3 and 9 September. MPs used this time to pass legislation fettering the Royal Prerogative to negotiate with the EU. They did not address the prerogative to prorogue. MPs had the chance to cashier the Prime Minister and install someone else to give different advice to Her Majesty. They flunked it, and also rejected the offer of an early dissolution. And that’s all, folks.

Britain does not so much have a Constitution as a Constitutional Ethos, a way of playing the game which partly refers to written rules and partly relies on conventions of behaviour, expectations that will be fulfilled unless it becomes absolutely necessary to do something else instead. The spirit in which the game is played is just as, if not more, important than the actual rules. The process relies on none of the players pushing their luck too far, because otherwise the others will step in and stop them, and that establishes a new convention. The courts are one of those players, too.

The upshot is that Britain – to the fury of enlightened political theorists – has never really had a formal separation of powers between the executive, legislative and judicial arms of government. Instead, Britain developed a sharing of powers with the three arms all gloriously muddled together and occasionally disentangling themselves. It worked pretty well, with the executive governing the country through Parliament and letting the judges perform a watching brief from the side-lines.

Or at least it did until 1997, when in typically unthought-out and spiteful vandalism, Tony Blair decided to force reality to conform to theory and started writing out prescriptive rules. Which has encouraged players to push their rights and powers to see what they can get away with. Everyone has begun behaving badly. An arms race in boorishness has broken out. Boris cheats because Bercow cheats.

Once upon a time, British politics at least pretended to be a game like cricket. You played hard but within limits. Every now and then fundamental rules were reformed (outlawing bodyline bowling) and you could modernise when absolutely necessary (creating one-day versions; adopting devices for umpiring the game more fairly). Above all, occasional clamp downs on cheating demonstrated that the authorities really did attach value to their bromides about the proper spirit of the game. Cricket has managed to evolve beyond all recognition without seeming to change.

Now British politics is becoming a game more like football. Forget five day matches: players cannot even go for 90 minutes without fouling, cheating or intimidating the referee, urged on by coaches and even the spectators.  Tellingly, the authorities have made an utter hash of introducing “new” technology like TV replays, and evince no appetite for curbing over-mighty clubs and over-paid players.

We don’t have to sign up to a rose-tinted and cosy image of a lost Golden Age. Britain has been badly-served by its leaders before, and grandstanding egomaniacs are nothing new. By modern standards, quite a few celebrated politicians of the past would be inside a prison cell today. However, at some point, back in the past our leaders would come to their senses and step back from whichever brink they were strolling towards. That’s why we have conventions. They mark where the brinks are.

Some people might argue that the Supreme Court’s intervention demonstrates the British Constitution working as it is supposed to. But two wrongs don’t make a right. You do not solve the problems of a dysfunctional Westminster by turning to a saviour on a white horse, even a judge, no matter how jazzy her brooches. Nor do you solve them by stoking up fatuous populism (and doing it ineptly), or using hysterical language to denounce the use of hysterical language. You solve these problems at Westminster, either by its current personnel coming to their senses and ceasing to be dysfunctional, or by electing a better standard of personnel.

The electorate have a “function” in this constitution, too.  Maybe it’s time to let them have a go?  They can’t make a worse fist of things than the experts.

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William Norton is a non-practising solicitor who worked for Vote Leave