tarunabh khaitanIt is hard to overestimate the political as well as the legal implications of today’s ground-breaking Supreme Court ruling, writes Tarun Khaitan (University of Oxford). It applied an effects-based test to the case rather than trying to establish the purpose of Boris Johnson’s move to prorogue Parliament. In doing so it created a brand new and sophisticated ammunition in the rapidly ageing arsenal of democracy defenders.

In a previous post on the Miller2/Cherry case, I had argued that the Supreme Court should adopt an effects-based test rather than inquire into the Prime Minister’s purpose of proroguing Parliament. In its landmark ruling today, the Supreme Court of the United Kingdom has applied an effects test, and completely side-stepped the purpose inquiry. It is hard to overstate the political as well as the legal consequences of this ruling. In this post, I will highlight the broader significance of the effects turn taken by the Court in this case, and explain why this turn may be significant to the future of democracy not just in the UK, but worldwide.

In a review essay titled ‘Executive Aggrandizement in Established Democracies’, I had compared democratic deconsolidation that many established democracies are witnessing today to a development in discrimination law a few decades ago:

Once the anti-discrimination norm comes to be widely accepted in a society, would-be discriminators don’t directly rely on protected characteristics such as race or gender. Instead, they use proxy characteristics such as educational qualifications or height to disproportionately exclude racial minorities or women. Couched in neutral terms, the effect of these acts is nonetheless discriminatory. Similarly, would-be autocrats don’t directly attack democracy, even though the effect of their actions is anti-democratic. This strategy of relying on pretextual factors lowers the cost of certain actions. When both sides claim to be defending democracy, moral clarity is the casualty. The consequent normative muddle makes it difficult to call out a breach, making democratic mobilisation to defend executive accountability mechanisms very hard. Thus, the assault on the mechanisms of executive accountability has been defended by strategic (and disingenuous) deployment of the democratic norm itself. [Emphasis added]

In 1971, the Supreme Court of the United States was faced with a case in which a company with a history of discriminating directly against black people had – conveniently after the promulgation of anti-discrimination legislation – changed its employment qualifications to include educational criteria. This education was not necessary to perform the job, and in fact, had never been required by the company before. It did have the effect of disproportionately excluding black candidates from the employment pool. As is often the case with purposes, the complainants could not prove, in facts, that the company’s purpose in adopting the new rule was to exclude black people. How could they? Company directors and government ministers are similar in this respect – it is very hard to see what might be going on in their minds. Rising to the challenge, the US Supreme Court famously decided in its landmark ruling in Griggs v Duke Power Company that discrimination can be found on the basis of effects alone, if an act disproportionately excludes a protected group (blacks) and cannot otherwise be justified. The judgment of the Court travelled to the UK in anti-discrimination measures adopted in the mid-70s, and then to many other parts of the world, as the prohibition on indirect discrimination. Regulation of indirect discrimination did not end discrimination. But it gave the victims of discrimination a robust weapon to fight it. It also captured much more closely what victims of discrimination mainly care about – its impact on their lives.

Today’s elected autocrats have, like the Duke Power Company in the 1960s, learnt that there is no need to attack democracy directly, since they can undermine it indirectly. Prime Minister Johnson prorogued Parliament ostensibly to prepare for the Queen’s Speech. As I argued here, however, this was a textbook example of executive aggrandisement (missing only the systemicity dimension because he hadn’t been in office for long enough): constitutionally shameless, but not obviously illegal; probably designed to silence Parliament, but using the smokescreen of the Queen’s speech that make it very hard to prove this design. It would have been legally dubious and politically tricky for the Court to hold, without clear proof, that his real purpose was something else and this was a pretext. The UK Supreme Court wisely took a Griggs turn, and laid down the following test:

a decision to prorogue Parliament … will be unlawful if the prorogation has 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. [50]

Notice the structural similarity of this test with the Griggs test. The relevant effect in Griggs was a disproportionate impact on a protected group. Here, it is frustrating or preventing a constitutional body from discharging its constitutional function. Both effects could be saved if good cause for undertaking the relevant actions that had these effects could be shown. There are differences too – the test in discrimination law specifies a lower bar of ‘disproportionate impact’; here the Court requires ‘prevention or frustration’. The justification in discrimination law must be ‘proportionate’; here, the Court will be satisfied it if is merely ‘reasonable’. These departures are understandable, as the Court is already taking significant political risk in finding the prorogation illegal. A deferential test, especially one that suffices for present purposes, is wiser one to adopt in a pioneering case. If it proves inadequate, the standard of review can always be revisited in future cases.

In the aforementioned review essay, I had identified elected political executives as the chief threat to democracy today. Their assaults tend to target other constitutional and civil society actors, especially those responsible for checking their actions. These include the political opposition, legislatures, the judiciary, fourth branch bodies such as electoral commissions and transparency bodies, and discursive institutions like universities and the media. These assaults tend to be subtle and incremental, but systemic. A purpose test, on its own, is wholly incapable of responding to these sophisticated tools developed to serve creeping authoritarianism. In inaugurating an effect-based test, the UK Supreme Court seems to have learnt an important lesson from the history of discrimination law. The Miller2/Cherry test, expressed more broadly and less deferentially below, is a brand new and sophisticated ammunition in the rapidly ageing arsenal of democracy defenders:

Governmental action that has the effect of frustrating, preventing, or substantially undermining the ability of constitutional actors to discharge their constitutional powers, duties, or functions shall be unlawful, unless the government can show that such action was a proportionate means of achieving a legitimate objective.

This test will not be a panacea. And courts alone cannot save democracy either, even if they remain competent, constitutionally literate, and independent. But as far as the judiciary’s constitutional watchdog role goes, this is as good as a judicial intervention is likely to get.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Tarun Khaitan is the Professor of Public Law and Legal Theory at the University of Oxford, a Future Fellow at Melbourne, and a Global Visiting Fellow at NYU.

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