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.
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.