“A Judicial Jamboree” – Boris and the Supreme Court
By Duncan Whitmore
Last week’s judgment of the Supreme Court (“Miller/Cherry”1) that Boris Johnson’s prorogation of Parliament was unlawful has been greeted as a “triumph” of democracy on the Remain side but, conversely, as an unwarranted judicial wading into politics on the Leave side – together with calls for the scrutiny of judicial appointments akin to what is seen with the US Supreme Court.
It will be argued here that, while undoubtedly significant, the court’s judgment to review the government’s decision for prorogation (and its disagreement with that decision) was not the most extraordinary aspect of the case. As we shall go on see in detail, the case is really an outcome of a continuing, decades-long attempt to squeeze historic, pre-democratic elements of Britain’s constitution into a democratic straitjacket.
What is astounding, on the other hand, is that the robustness and confidence of the decision represents a continuation of the same theme we identified in a previous essay on Brexit and the British Constitution – that the pro-Remain establishment, instead of simply cutting its losses and swallowing Brexit, is blind to the fact that its efforts to thwart the referendum result is jeopardising everything that legitimises (in the eye of the public) the sustenance of the British state. As Sean Gabb has said in his own post on the matter, “all that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine.” Surely they must have realised the Supreme Court’s decision, delivered without a single dissenting voice among eleven justices in spite of convincing counterarguments, would brazenly and wantonly take a sledge hammer to yet another veneer of legitimacy over the state system that keeps them in power – the notion of an independent and apolitical judiciary?
The Supreme Court’s Judgment
When viewed in isolation (and ignoring, for a minute, the highly charged Brexit backdrop), Miller/Cherry is a continuing demonstration of the fact that, for nearly two centuries or so, Britain has been trying to force its constitutional apparatus into a suit of democratic legitimacy – a suit which it predated and for which it was not designed. The “constitutional monarchy” that has existed in Britain since the Glorious Revolution of 1688 is essentially a truce, or accommodation, between two centres of power – the monarch and Parliament – whose seventeenth century antagonisms had caused a civil war and the loss of Charles I’s head (while the subsequent eleven years’ interregnum proved to be no less tyrannous or unstable).
After the disposal of James II, provisions such as the 1689 Bill of Rights and 1701 Act of Settlement specified the rights and restrictions to be placed on the monarch as well as the role and rights of Parliament. Absolute power became vested in the “Crown-in-Parliament” – that is, the monarch legislates but with the advice and consent of Parliament. It is this legal supremacy of the “Crown-in-Parliament” from which we derive the phrase “Sovereignty of Parliament” – that an Act of Parliament is the highest authority in the land, unchallengeable in any other proceeding, thus cementing the political arena as the forum in which political disputes should be settled.
Initially, post-1688 monarchs played an active role in the political process. They vetoed bills passed through Parliament that were passed for Royal Assent, as Queen Anne did when she blocked the Scottish Militia Bill; hired and fired their ministers, as when William Pitt the Elder was appointed by George III (who exploited Pitt’s ministry to boost his own political aims and popularity); they successfully influenced government policy, as evidenced by George III’s continual opposition to catholic emancipation; and, of course, they were active in foreign policy, as, again, George III was in regard to relations with America and France. But after the turmoil of the 1600s, the overall constitutional setup has resulted in Britain surviving until now without any revolutionary upheaval for the reason that those who have sought power were largely accommodated within the constitutional structure. This is in contrast to Britain’s European neighbours, such as France, Germany and Russia, where considerably greater degrees of power remained vested in the monarch while parliaments and assemblies, if they existed at all, were more akin to talking shops.
Over the course of the past three hundred years, however, the political power of the monarch has diminished gradually into the situation we have today where our present queen is little more than a figurehead (a diminution which, arguably, was made inevitable by the system from the start). As democracy gained in ascendance at the same time as all competing theories of governance were trashed, the requirement of democratic legitimacy was gradually superimposed onto the constitutional structure by a) Members of Parliament being elected by a population with universal suffrage; and b) the Queen selecting her ministers from the party most likely to command the confidence of the House of Commons (which these days means the party, or coalition of parties, gaining the majority of seats in a general election, with the party loyalty of MPs enforced by the whipping system).
Thus, a system designed as an accommodation between two different sources of power has, in practice, become a unitary system managed entirely by the government of the day, drawing its power and authority wholly from the ballot box. The constitutional fiction of two powers – Queen and Parliament – remains but has, today, been replaced by the near-fictional notion that the purpose of the Queen’s ministers is to govern while the purpose of Parliament is to hold that government “to account”. The reality most of the time, though, is that the government is subject to very little control. For the power of the Queen is now exercised by her elected ministers but the very same people, by virtue of their party majority in the House of Commons, have control over the Commons and its legislative agenda – a situation the late Quintin Hogg, Lord Hailsham, called an “elective dictatorship”.
One consequence of this normally fictional divide, however, is that (regardless of the weight of the 2016 referendum result on the government’s side) we have the strange situation of both Parliament and the government each claiming that their seemingly contradictory and mutually frustrating actions are a vindication of “democracy”. (And, moreover, each side can argue plausibly that its actions are constitutionally appropriate while pointing to the other entity as the usurper of power). For, under the logic of the Westminster system, the government is the entity which has been granted a majority in the house by the electorate and so can claim the right to govern; but the House of Commons consists of representatives elected by the people to scrutinise government action and so can claim the right to sit. So frustration of either of those two entities can be painted as an affront to “democracy” and constitutional propriety. Libertarians can only lament the fact that the recent kind of parliamentary logjam has failed to appear earlier when the government was, say, trying to increase taxes or take us to war. Indeed, most of the time, anything that blocks the power of the government would be a godsend. If the live issue wasn’t Brexit libertarians would be content to let the politicians tear each other to shreds while the general population gets on with their lives.
Anyhow, another lasting element of the post-1688 constitution is the royal prerogative – a series of discretionary powers and privileges reserved by the monarch but now, in the democratic era, exercised by the monarch’s elected ministers. Some of these residual powers make sense when you consider that they were to be exercised by the person of the monarch (or, at least, there is a convincing justification for them when considering the constitutional context).
The dissolution of Parliament is a case in point. The monarch, by virtue of the hereditary nature of his office, is a single and practically immovable entity, whereas the changing composition of Parliament and the assortment of conflicting interests within could allow it to descend into a rabble. Thus, in the event of a Parliamentary impasse, it made sense for the monarch to act as the broker by instructing Parliament to get its house in order – which, today, would mean “go and have a general election.” The fact that this power has, as of 2011, been removed and Parliament must now consent to its own dissolution is precisely what has permitted the current, inescapable gridlock.
Other prerogative powers continue to make sense today even though they are exercised not by the Queen in person but by her elected ministers. Foreign affairs, for instance, must be conducted in such a way that the country speaks with a single voice, and so are a matter reserved for the government – something else which, incidentally, is being eroded by Parliament’s interference with the government’s negotiations to conclude a withdrawal agreement with the EU. Indeed, one possibility that no one in Miller/Cherry seems to have considered is whether the Crown’s power to prorogue is itself an appropriate constitutional check upon Parliament’s abuse of its power.
However, the continued existence of the royal prerogative has proven controversial in the democratic era on occasions where the government appears to be using a given power in order to obtain a political advantage (or where the government has forced a political agenda through the “back door” by using the powers to avoid parliamentary scrutiny). It is, therefore, no surprise that use of the prerogative by elected ministers has been challenged in legal proceedings during the past few decades.
It was in the infamous GCHQ case of 19842 – a challenge to Margaret Thatcher’s use of the prerogative in order to ban trade union membership amongst spies at GCHQ – that the House of Lords (in its judicial capacity) discovered for itself the jurisdiction to subject the prerogative powers to judicial review based on the “appropriateness” of their use. Thus, more than thirty years ago, there was an acknowledged limit to the scope of the royal prerogative on account of the political advantage that it can hand to the government of the day. It is for this reason that the Supreme Court’s decision in Miller/Cherry is not, when viewed as part of this evolution, particularly earth shattering, and is merely a continuance of the attempt to temper the invocation, in a democratic age, of constitutional elements that were designed for a non-democratic era. Even the finding that a piece of advice given to the Queen by the Prime Minister is unlawful – a first in legal history – may well have ended up happening at some point anyway as the constitutional fiction of the Queen’s role has to give way to the reality that her powers are exercised by politically motivated ministers.
Moreover, it is not just the exercise of the royal prerogative that has come under scrutiny. For instance, in the case of R (Jackson) v Attorney General3, several of the judges made obiter (non-binding) comments concerning the limits of parliamentary sovereignty – i.e. whether and how the legal sovereignty of Parliament to pass whatever law it likes should be subordinated to the popular sovereignty of the electorate. What would happen, for instance, if Parliament tried to rescind, by ordinary statute, certain fundamental rights of the individual? Or what if a law was passed abolishing all elections and establishing a dictatorship? If faced with such “unthinkable” circumstances the judges indicate that the courts would be unlikely to simply stand aside. They have, after all, had much practice in this regard by virtue of their duties under the Human Rights Act 1998, which requires them to examine primary legislation for congruence with the European Convention on Human Rights, in addition to having followed a more general approach of construing legislation to be in harmony with certain, basic rights. Thus, any step towards the explicit judicial insulation of fundamental rights and principles from political override is becoming gradually smaller. (Although in the event that a dictatorial government did materialise as a result of parliamentary legislation it would probably just send in the army to turf the judges out!)
In sum, one can view this evolving “democratisation”, of which an increase in judicial policing of political processes is a part, as a long march on the road towards a codified constitution and the scattering of the functions of the British state into something more rigorously akin to the “separation of powers” – a model of government cited explicitly by the court’s judgment in Miller/Cherry and which is (dubiously) believed, on account of the kind of “checks and balances” which the court deemed itself to be fulfilling, to be more conducive towards political liberty.
(Incidentally, the creation of the Supreme Court is itself an element of this long process of “democratisation” – albeit a more deliberate and explicit one. As this issue represents something of a tangent, interested readers may consult the following footnote.4)
What is surprising, however, is the unanimity and stridency of the Miller/Cherry judgment, with the court displaying dubious regard for precedent and little deference to any alternative in a highly charged political context. Even in normal times it is rare in difficult, significant appeal cases to gain a unanimous decision of the Supreme Court when there is just a handful of judges sitting (normally five) without the floodlights of publicity shining on their faces. So there is surely something very odd when eleven of them reach unanimity in a case with constitutional and political ramifications at a point when the whole country is watching them on live television.
The complete lack of caution in the judgment only adds to the incongruity. In both private and public law, courts have normally been reluctant to grant relief in cases when there is a legislative alternative. Worse still, they have been especially reluctant when Parliament has explicitly refused to pursue such an alternative. But that kind of refusal is precisely what has happened in this instance. Parliament could have called a vote of no confidence in the government or voted for a general election, but it turned down both of these options. Indeed, the requirement of its confidence in the government is the grand, overarching power that Parliament has to subject the government to control. If, therefore, the house is willing to continue to lend the government its confidence then it could plausibly be said that it has, concomitantly, lent the government confidence in the exercise of the prerogative power of prorogation which it has exercised for centuries.
Moreover, another choice that Parliament had was to amend the power to prorogue by legislation (in just the same way that the power to dissolve Parliament was curtailed by the Fixed Term Parliaments Act 2011). For the government’s decision to prorogue did not deny Parliament the opportunity, in its remaining sitting days, to pass legislation changing the rules on prorogation (or just belaying the current decision to prorogue); Parliament simply decided instead to press on with its Brexit delay bill – which, having now passed, has been re-christened as the Benn “Surrender” Act. On these grounds alone, therefore, one could suggest that the Supreme Court’s judgment was wrong according to its own criteria. For the judgment specified that the decision to prorogue would be unlawful if it had “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” [emphasis added]. And yet, if Parliament had an escape route, then there was no such frustrating effect in the first place. Further, any reference in the judgment to the “exceptional” circumstance of an impending Brexit is, as a result, irrelevant. For if Parliament refused to legislate in order to continue its sitting all the way until October 31st then they, the elected representatives, demonstrated that their oversight of the government was not critical during this period.
Of particular absurdity in the judgment was the finding that “the effect [of the prorogation] upon the fundamentals of our democracy was extreme” [emphases added]. Apart from the fact that prorogation would not, given the party conference season, have truncated Parliament’s sitting days by very much, the government offered a general election as a way out of the impasse. So, at worst, the prorogation was brought about to gain a temporary political advantage – an advantage which a) was being used to deliver the result of a referendum, b) was taken wantonly in the past by one of the current complainants, arch-hypocrite John Major, and c) which, as we just explained, Parliament had ways of overriding anyway.
None of this suggests conclusively that the government’s power to prorogue is completely unfettered in principle; merely that the court wantonly disregarded other, more traditional restraints upon government power that were available in this case. The result of this is to elevate the judiciary to the role of the primary constitutional check on this power as opposed to the last resort. Any extra-judicial restraints that the court did acknowledge were dismissed as “scant reassurance”.
However, when it comes to the principle of the court’s ability to review the power to prorogue, the court faced a major stumbling block in the form of Article 9 of the Bill of Rights. This provision forbids any challenge to “proceedings in Parliament” outside of Parliament itself (for the precise reason that such an avenue was abused in the seventeenth century). This is the problem of “justiciability”, the scope of which defines the boundary between the legal and the political realms. In order to deliver its judgment against the Prime Minister, the Supreme Court in Miller/Cherry had to rule explicitly that prorogation was not a “proceeding in Parliament” on the grounds that it is something “imposed” on Parliament “from outside”. And yet, as government counsel pointed out, the court had decided unanimously in 2014 that the granting of Royal Assent to a bill that had passed through all of its Parliamentary stages was, indeed, a “proceeding in Parliament” and so not subject to judicial review. So, presumably, the court is effectively telling us that, on the one hand, the Prime Minister’s advice to the Queen to prorogue Parliament for a short period was such an intolerable affront to democracy that the court must intervene; but on the other, it was saying that if Boris Johnson had advised the Queen to withhold Royal Assent in order to permanently kill off a bill he happened not to like then the court – in spite of the flagrant anti-democratic nature of such an act – could do absolutely nothing. Moreover, it seems also that the opposition, in cahoots with the Speaker, are able to manipulate parliamentary procedure in order to hijack the Commons’ timetable with the full knowledge that such a usurping would be protected by Article 9; but the government’s attempt to achieve some other political advantage through a different mechanism can be struck down in court.
By selectively weakening the protection afforded to parliamentary proceedings by Article 9 of the Bill Rights and, thus, creating these kinds of anomaly, the Supreme Court may well spawn a plethora of future litigation that could see any government action, thought, piece of advice, or communication (as well as previously non-justiciable constitutional conventions) – basically anything that a rich busybody such as Gina Miller happens not to like – being “tested” in court for justiciability. Such litigation may be made all the more likely if the court, in future cases, continues to ignore traditional, political restraints upon all of these matters in the way we suggested it has done in Miller/Cherry.
Should this transpire, then we will eventually face a basic, constitutional question. Are “the fundamentals to our democracy” best protected by immunising parliamentary procedure from judicial review? Or should Article 9 of the Bill of Rights be repealed so that everything can be scrutinised in court? At the very least, answering this difficult question in a piecemeal fashion by drawing tenuous distinctions such as the court seems wont to do will not, in the long run, create a coherent and balanced system. In terms of both constitutional definition and the public’s perception of democratic legitimacy, the operation of “Parliament” is one, big caboodle – it is everything concerning the interaction between the Crown, the Commons and the Lords right up to the moment an Act of Parliament is created. It’s does not simply concern whether the likes of Barry Sheerman, Paula Sherriff or Jess Phillips can scream their heads off in the Commons. It makes no sense to subject different parts of the operation to different forms of oversight, particularly not when – as we indicated earlier – powers such as prorogation might themselves serve as constitutional checks upon other parts of the system.
Either way, it is clear that there was no fundamental or systemic threat to democracy in this case. And yet the wording of the judgment (not to mention the joy with which it was greeted) would make anyone think that Boris Johnson had attempted to dissolve Parliament permanently and abolish elections before proceeding to rule by decree for the rest of time. Indeed, the main justification for the court seems to be that the power to prorogue might, in some “extreme hypothetical example”, be abused. Even if it was too much to expect the entire court to immunise itself from this age of hyperbole, outrage and hysteria, could we not, at the very least, have expected two, may be three, dissenting judgments to have argued in favour of the points we have raised? Was it too much to expect at least a handful of them to have agreed with the completely opposite judgment of the three highest judges in English and Wales when they ruled that prorogation is not justiciable? Instead, all of this is reminiscent of how one legal commentator reacted to a judgment made by the House of Lords in the 1960s which represented a similar leap in the area of tort law:
Never has there been such a judicial jamboree as [this case] where one almost has the feeling that their lordships had been on a trip to Mount Olympus and perhaps smoked a joint on the bus. Something certainly went to their heads, presumably not the merits of the claim.5
Perhaps with some awareness of this the judges tried to play down the scope of their decision. It is a “one off” they say; the circumstances (of the pending withdrawal from the European Union) were “exceptional”. For reasons we outlined earlier the effects of this case may not be so easily containable. The justices also threw in the usual judicial apologetics seen commonly in administrative law cases – reiterating that the duty of the court is to police the “boundary” of power, not to examine its “mode of exercise” within that boundary. In plain English, what this means is that judges are not supposed to rule on whether the actual decision made was “good” or “bad”; instead, their role is to determine whether the government could make the decision in the first place. The problem, however, is that, under the court’s criteria, the boundary of the power depends upon the justification for its use – i.e. whether the government had good reasons for “frustrating or preventing […] the ability of Parliament to carry out its constitutional functions”. Courts are used to requiring these kinds of substantive justification in human rights cases – in other words, they can define the boundary of the state’s power to interfere with your human rights based upon whether the government has given adequate reasons for doing so. Traditionally, however, the bar of “reasonableness” was set extremely high – an executive/administrative decision under review would have to be manifestly absurd in order for the court to set it aside.6 Miller/Cherry, however, suggests that a more intense review of the government’s reasons for its exercise of power is possible, the implications of which remain to be seen. Will it be confined to cases where the preservation of important constitutional principles is alleged to be at stake? And how satisfactory do the government’s reasons have to be in order to justify its action? Unfortunately, as the government, in this case, failed to give any reasons at all – a factor which pretty much sealed the case against it – we will not know the answer to this question for some time. Certainly, however, if this jurisdiction of the court is interpreted widely in future cases then the judiciary will open itself to the objection that, under the guise of determining whether a power exists, the court is merely substituting its own decision for decisions that are normally made in the political arena.
While it is true that the Supreme Court seems to have made a significant intrusion of the legal realm into what was once the political, the wider ramifications could be even more significant: that what the united justices of the Supreme Court have achieved with their inexplicable heavy handedness is to blow up the spectre of a Remainer/establishment conspiracy to thwart Brexit by introducing themselves as part of the plot – a plot that is keeping an unrepresentative Parliament in place that will use every trick up its sleeve to reverse the referendum result while avoiding any possibility of an election. It is difficult to tell, at the moment, whether Boris Johnson is being the blundering buffoon he is reputed to be or whether he is playing 4D chess by fuelling a milieu of the “people vs. the establishment”. But if the latter is the case then the Supreme Court has fallen wilfully into the trap – indeed, it is difficult to see how they could have tried any harder to make it look like a stitch up. Judging by the fact that 60% of voters now want Britain to leave the EU on October 31st (and that Nigel Farage received something of a backlash from his own followers for having criticised Johnson in the wake of the judgment) the strategy seems to be working. But if the public finally loses faith in the system then the ultimate result of the whole saga could be a much more dramatic and revolutionary rewriting of the British constitution than the evolutionary process we outlined above. As James Delingpole commented:
[There is] this sense that our country, whose laws and traditions and customs were once the envy of the world, no longer belongs to us; that it has been taken over by alien forces who certainly don’t give a damn about us but don’t even seem to have any grasp of what it is that made Britain so special.
Libertarians, proud as they may also be of Britain’s culture, customs and traditions, have never been quite so in awe of its current constitutional structure. We know that democracy, in particular, has simply been a ruse that has enabled, rather than to restricted, power controlled by a tiny elite. Indeed, the supposed “bitter” opposition between political parties has been permitted to continue because it represents little more than infighting within broadly acceptable parameters, while the victory of a particular party at any general election has made little difference to the overall direction. It is this, rather than anything that has occurred in the past three years, that has really driven our country to the statist ruin that it now. It is, however, astonishing that the elite could be so willing to blow the lid off the entire charade simply in response to a single, democratic decision that has dared to step outside the boundaries of tolerance. As we said earlier, Britain has avoided revolution for more than three hundred years for the reason that everyone who has sought power has largely been accommodated. But what happens if the people get to the point when they feel that the system has completely shut them out? If we do get that to stage then, even if the final outcome of any backlash ends up being more conducive to liberty (don’t hold your breath though), the way there could be very messy indeed. As historian David Starkey, never one to mince his words, has pointed out: “the last time we were in territory like this it was decided by civil war.”
1R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland (Scotland), (2019) UKSC 41. Quotations in this essay are from both the summary and the full judgment.
2Council of Civil Service Unions v Minister for the Civil Service, (1984) UKHL 9. The government ended up winning the case on the grounds of “national security”. It was cited directly in Miller/Cherry.
3(2005) UKHL 56.
4Prior to 2009 the highest appeal court in the UK was the House of Lords, which is, of course, the upper house of the legislature. This curious mixture of duties undertaken by the House of Lords – seemingly without an equivalent in any other country – became a perpetual itch for separation-of-powers ideologues. An even greater horror was the role of the Lord Chancellor who, simultaneously, was head of the judiciary, the effective “speaker” of the House of Lords and had a seat in the cabinet.
These anomalies make sense, however, when you consider that the English constitution grew around sources of power, not around function (in fact, any extensive and explicit recognition of the differences between the legislative, executive, and judicial functions of the state is a much later product of the eighteenth century, specifically of Montesquieu). The original dispenser of justice was, of course, the king, and so it was natural for the judicial powers of the king to be subjected to the same kinds of dispute as his executive and legislative powers. Indeed, the due process clauses of magna carta are an early example of an attempt to regulate the king’s judicial power. Just as, therefore, the highest legislative authority in the land became the Queen-in-Parliament, so too did the same forum become the final court of appeal for the dispensation of justice.
Originally both houses of Parliament heard legal petitions, but the Commons ceded this function to the Lords in the fourteenth century. All members of the Lords could hear appeal cases, but this too was gradually whittled down, if only by convention. Disquiet about this function of the Lords is nothing new – Gladstone tried to abolish it in 1873. However, its operation in later years was not terribly unlike the operation of the government in the Commons. For in just the same way as the Queen appoints her Prime Minister from the Commons in order to govern in her name, so too would she elevate professional jurists to the peerage as “Law Lords” in order to adjudicate in her name. The only difference is that the Law Lords, unlike key government ministers, were not selected by a democratic process, their appointment being regulated by the Appellate Jurisdiction Acts of the 1870s and 1880s.
At the end of its life, the Lords’ judicial business was practically separate from its legislative function anyway. In fact, appeals were made not to the House as a whole but to the “Appellate Committee of the House of Lords”, which heard cases in committee rooms in the Palace of Westminster rather than in the debating chamber. The Law Lords rarely spoke or voted in the House’s legislative business (although they were always available to lend advice on legal matters to other peers) and, similarly, non-judicial peers abstained from the same in judicial proceedings.
Nevertheless, the move of the Lords’ judicial functions across Parliament Square to the new Supreme Court may end up being more than symbolic. One consequence of setting people up in their own little castle is that they tend to use it as a base from which to start building an empire. The kind of judgment in Miller/Cherry could be the start of a greater expansion of the legal realm into what were formerly pure political matters. To paraphrase Lyndon Johnson, the government may come to find that it was better to have the judges inside the tent p*ssing out rather than outside the tent p*ssing in.
5Tony Weir, Errare Humanum Est in Peter Birks (ed), Frontiers of Liability Vol. 2, OUP (1994) at 105 (n). The case is question was Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465.
6This is the so-called “Wednesbury unreasonableness” test dating from Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, (1948) 1 KB 223.