Martin Brenncke (Aston Law School) explains the difference between the two high court rulings regarding the prorogation of Parliament.
The Prime Minister‘s decision to advise the Queen to prorogue Parliament is a political decision. It is not subject to judicial review by the courts. Whether or not the timing and duration of prorogation constitutes an abuse of power by the Prime Minister is a political question, which is not for the courts to assess. This is the gist of yesterday’s High Court judgment in Miller v The Prime Minister.
The High Court had to determine the border between law and politics, but this border is fuzzy and a large grey area rather than a fine line. The court determined this border by making a discretionary policy decision. It would have been within the common law powers of the court to decide that any exercise of the executive‘s prerogative power is subject to judicial review. Such a decision would have made the law much clearer, but the court did not venture down this path and this is a smart decision.
There would have been little benefit of throwing the courts into the current political power struggle between Parliament, the Executive and the people. The public and media outcry of such a political decision from the unelected branch of the state would have been immense and would have undermined public confidence in an independent judiciary. The memories of ”Enemies of the People“ are still fresh. The High Court also pointed out explicitly that Parliament, despite prorogation, still has sufficient time before 31 October 2019 to debate Brexit and to hold the government to account. In other words, political means are still available to solve this crisis. An intervention of the courts would have been a high-risk venture with limited benefits.
This assessment does not hold in Scotland where the Court of Session decided yesterday that the Prime Minister‘s decision to advise the Queen to prorogue Parliament is (a) subject to judicial review and (b) unlawful. The Scottish Court also determined the border between law and politics, but it did so differently than the High Court. This policy decision is in harmony with the political parameters in Scotland. It is in line with the will of the majority of the Scottish people, the Scottish Parliament and the Scottish government. In Scotland, these judges are ”Heroes of the People“ and defenders of democratic values. The intervention of the Scottish court was thus a low-risk venture. This is different in the UK Supreme Court where the controversial issue will be heard next Tuesday, finally settled and where the political stakes are higher.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image by DAVID HOLT, some rights reserved.
Martin Brenncke is Lecturer in Law at Aston Law School, Birmingham. His recent monograph ‘Judicial law-making in English and German courts’ investigates the limits of judicial power in a legal system.
One thing I don’t understand is the conflict between Scots and Welsh/English law and how it gets resolved. Since the two legal systems are different, it is perfectly possible that the Scottish judges decided correctly according to Scots Law and the High Court correctly according to Welsh/English law. Suppose the Supreme Court decides that according to Scots Law the Prime Minister’s decision is judiciable, under Welsh/English Law not, what happens then? Or is there some common legal system which is supposed to apply?
There is a basic internal flaw in the English decision, a Catch 22. If the advice to the Queen has to be followed, and that advice is not accurate (a lie) and it results in Parliament being suspended then there is no political solution available.
This gives the Prime Minister complete control over our political system as he/she can suspend Parliament at will, silencing all opposition including being removed from office by a vote of no confidence. This is the essence of a dictatorship.
Courts have to have the power to scrutinise and decide on the consitutionality of this, it is not just a political decision but the essence of democracy.
@David: “This gives the Prime Minister complete control over our political system as he/she can suspend Parliament at will, silencing all opposition including being removed from office by a vote of no confidence.” I think you are over-dramatising. With or without Parliament,it is not possible for Boris Johnson to say “Off with his head” and have someone dragged off immediately to be beheaded on Tower Hill. (Even Henry VIII couldn’t do that, back then, he needed to get Parliament to pass a Bill of Attainder.) While Parliament is not sitting, the Prime Minister is not a dictator, because he still only has the powers granted him by statute. He cannot make new laws or raise new taxes. He also needs to get Parliament to pass Finance Acts every year or government will shut down. So the PM does not become a dictator.
On the general question, there is no absolute answer. Where the law is unclear judges have to take into account various competing factors. I think judges can reasonably worry about the consequences if they are seen not to be independent, as the article’s author points out. I don’t think anyone wants judges in the UK to be as politicised as in the USA, where the Supreme Court seems to have become a third chamber of the legislature. As part of the collateral damage of Brexit we have already seen the politicisation of the Speaker, we don’t want the judges to be politicised as well. That really would attack the essence of democracy.
It is undoubtedly a pity the Speaker and the law courts have been dragged into the Brexit process.
However as I see it it is the fault of the Tory extreme Brexiteers that this is happening. They are using every trick in the book, and stretching the British (uncodified) Constitution to, and even beyond it’s limits. The British Constitution relies on various checks and balances, and on each actor realising that he/she cannot act unilaterally, cannot act without considering the views of the many other actors.
In their worship of Brexit, and especially a hard Brexit, the Tory controlled Executive is trying to steamroller away any opposition. This the British Constitution cannot stomach, and inevitably the Legislature and Judiciary, as the other two key pillars of the British Constitution, will react against this
@Friedrich: I think shoving blame in one direction is not really fair. Both sides have been using every trick in the book, and some out of it. I do at least give Boris Johnson credit for not openly attempting to block Royal Assent on the Benn-Burt-Bill, which various people suggested might happen.
I don’t think the British Constitution is stretched beyond its limits. There is no effective government at the monent, but this dies not make the UK a dictatorship, if anything it makes it the opposite of a dictatorship. By 2022 at the latest there will be fresh elections and then I hope there will be an executive which is capable of commanding a majority in Parliament.
@Alias – “I think you are over dramatising…”
I don’t really think so, we have a Parliamentary democracy where Parliament has been suspended for 5 weeks on the advice of the Prime Minister to the Queen which has been found by a court to have been misleading as to its true purpose. Parliament wants to deal with this problem, as well as other problems and wants to sit so that it can scrutinise the executive. It has been forbidden to do so by the executive with (possibly) the courts unable to put right this misuse of power. How is that not a dictatorship?
The checks and balances we have in our constitution depend on the players being honest and playing by the rules. There has to be a recourse if they don’t. That does not politicise the judiciary in itself.
@David: “How is that not a dictatorship?” To be a dictatorship, someone needs to be able to dictate. Boris Johnson can’t do this. He has no more constitutional powers as Prime Minister than at any other time.
You don’t just get a dictatorship because Parliament is not sitting.
“The checks and balances we have in our constitution depend on the players being honest and playing by the rules.”
In 2013 parliament decided not to implement the recommendations of the independent Boundary Commission. Had they done so, Mrs May would have entered office with a majority of 32 rather 12. This was the start of the slippery slope which has left us where we are. We cannot be sure, but it seems very likely that parliament would not now be in a state of prorogation had the opposition agreed by the rules and updated constituency boundaries in line with population redistribution.
Thank you for your comments.
My argument is that the question of whether the Prime Minister’s decision to advise the Queen to prorogue Parliament is justiciable or an exclusively political matter is not clearly answered by existing statute and common law. Therefore, the judicial decision-making process is not fully determined by deductive reasoning from statute or existing cases. Instead, a frame exists within which different and competing interpretations are reasonable and tenable. Both courts provided valid legal arguments. As there are valid legal arguments on either side, it is possible that two different courts (High Court, Court of Session) can come to different conclusions. Since legal arguments do not fully determine the answer to the controversial question, it is ultimately a policy decision by the court which involves an element of judicial discretion.
Against this theoretical background, I provided some of the political context in this blog post. My argument is that taking the different political contexts into account can shed light on why the English and the Scottish court came to different conclusions regarding the question of justiciability, which is a question about UK constitutional law. Ignoring the different political contexts would ignore an aspect that influences judicial decision-making.
“Such a decision would have made the law much clearer, but the court did not venture down this path and this is a smart decision” if the former then why the latter?
Well, if the Court f Session judgement is not upheld, that is just one more reason for Scotland to leave the UK and become independent from English rule. Because that in fact is what governs the UK – the English Parliament, where the vast majority of English MP’s vote for measures favourable to England – not to the UK, whose peripheral MP’s are always outvoted.
This is a real democratic deficit as opposed to the imaginary one with regard to the EU.
If Scotland rejoined the EU it would have both a real, effective vote and a veto – in the UK it has neither.