The Rogue Prorogation and the English-Scottish judicial divide

As the pressures and contradictions of no-deal Brexit threaten the unity of the United Kingdom, further fissures are to be seen through the prisms of judical reasoning, in which English and Scottish judges view and interpet the world in utterly divergent ways.

The English High Court (which included the Lord Chief Justice and the Master of the Rolls) has curtly dismissed the claim that the Prime Minister’s decision to seek prorogation of Parliament, for the five week period so shortly before the current Brexit deadline, was unlawful.  By contrast, the Scottish Court of Session (hearing the case on appeal) has held that the advice was for an improper purpose and so unlawful.  Both decisions are the subject of appeal to the UK Supreme Court, to be heard on 17th September.

We have now seen the full reasons of both the English High Court and of the Scottish Court of Session.  They relate to the same issues and set of facts – but the judicial approach and the outcomes completely diverge.

So what conclusions can we draw from the courts’ very different approaches?

There are in essence two main legal issues.  The first is whether the case is “justiciable” at all, i.e. do the courts have any jurisdiction to intervene, even if satisfied that the Prime Minister’s decision to prorogue had no valid public interest reason? If the answer is no, that it is “non-justiciable”, then the motive – even if generally seen as improper – is by definition irrelevant.  The courts have no role to play.  In such a vew, it is purely a political matter.

The second issue only arises if the answer to the first is that a decision to prorogue (strictly, to advise the Queen to prorogue) is, at least in some circumstances, justiciable. If so, then the courts can review the reasons for the decision and – if it considers them to be illegitimate, e.g. by undermining Parliamentary democracy – hold that the decision is unlawful, and overturn it.

The English Court view – it’s political, so not justiciable

The English High Court held that the decision to prorogue is not justiciable, and chose not to look behind the thin veil of justification with which the government sought to cover its decision.

At paragraph 37 of their decision, the judges say:

“We do not, however, accept the proposition of Lord Pannick [counsel for the applicants], … that the jurisprudential stage has now been reached where there is no longer any exercise of common law prerogative powers which is immune from judicial review, that is to say non-justiciable, but that there are merely areas in which the courts must proceed with caution.”

Moreover (para. 41):

“The question of justiciability comes first, both as a matter of logic and of law.”

They then set the dividing line in this way, and found the government to be on the non-justiciable side of it:

42. The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of “high policy” or are “political”. In this way the courts, whose function it is, have marked out the separation of powers between the judicial and the executive branches of government, a fundamental feature of our unwritten constitution. In the present case the Prime Minister contends that the advice to Her Majesty to prorogue Parliament, which was given effect in the Order in Council of 28 August 2019, was political.”

The “political” nature of the case, as the Court saw it, was this (Ms Da Costa being the (not-a-civil-servant (director of legislative affairs at No.10):

51. The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy. The evidence shows that a number of considerations were taken into account. We have summarised them extensively already. They included the need to prepare the Government’s legislative programme for the Queen’s Speech, that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations, that a number of days falling within the period of prorogation would ordinarily be recess for party conferences, and that the current parliamentary session had been longer than for the previous 40 years. The Prime Minister had also been briefed in Ms da Costa’s submission that it was increasingly difficult to fill parliamentary time with appropriate work and, if new bills were introduced, either the existing session would have to continue for another four to six months at a minimum or they would be introduced knowing that they would fall at the end of the session. All of those matters involved intensely political considerations.

And the conclusion:

54. All of these arguments face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between Parliamentary sessions.

This represents, in my view, a particularly spineless approach to the judicial role. The fact that no reason why prepariatoin for the Queen’s Speech should require Parliament to be out of the way for five weeks remained not only unexplained by the government, but unexplored by the judges to test whether the reason for the delay was in any way justifiable.

The final, and possibly most worrying part of the judgment, relates to the dismissal by the judges of any limitation on their “non-justiciable” conclusion.  What about a government going even further in preventing Parliament sitting than on this occasion? The court gave democracy no comfort that in such a case, the English courts would come to the rescue, faced with an Executive determined to destroy or severely curtail our Parliamentary democracy.

“The spectre was raised in argument of a Government seeking to rule without Parliament or, at the least, dispense with its sitting for very lengthy periods. A series of technical arguments was raised by Sir James to point to the practical impossibility of such a course, including the need for the vote of funds to govern and the need annually to extend the Armed Forces Act 2006.

66. We do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples, not least because it is impossible to predict how the flexible constitutional arrangements of the United Kingdom, and Parliament itself, would react in such circumstances.”

 This is feeble in the extreme, at a time when authoritarian government in many parts of the world are setting out to diminish democracy.

The Scottish Court – protecting Parliamentary democracy is a justiciable issue

The Scottish Court took a very different view of the law and interpretation of the government’s reasons and justifications.

The three judges  each gave separate judgments of broadly similar views and identical decision; for present purposes, I will refer to and cite from that of the Court’s President, Lord Carloway (excluding his references to specific cases).

[50] The decision under review, which seems to have been made by the Prime Minister alone, is that to request HM the Queen to exercise her prerogative to prorogue Parliament. A prerogative decision may be the subject of a judicial review. Whether the issue is ultimately justiciable will depend upon the subject matter. As a generality, decisions which are made on the basis of legitimate political considerations alone are not justiciable. It is not possible to apply to such decisions the public law tests of reasonableness, impartiality or fettering of discretion. In this case, if the challenge was based upon these judicial review considerations or similar matters, it would not be justiciable. If the reasons for the decision were based upon legitimate political considerations, including a desire to see that Brexit occurs, they would not be challengeable. However, that is not the contention.

[51] The contention is that the reasons which have been proffered by the PM in public (to prepare for a new legislative programme and to cover the period of the party conferences) are not the true ones. The real reason, it is said, is to stymie Parliamentary scrutiny of Government action. Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying “the principles of democracy and the rule of law.”…

Thus, the Court – unlike the English High Court – sees its role as overseeing the application of the principles of democracy and rule of law.  This means that a government decision to seek prorogation is indeed justiciable in principle – even if the courts would normally be slow to intervene.

But the starkest difference between the approaches of the Scottish and English courts is in their interpretation of the ‘evidence’.  The English Court clearly did not want to look at whether the purported reasons for a long Parliamentary absence really made sense.  The Scottish Court, by contrast, was quick to draw conclusions that were adverse to the government:

[53] The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for Parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake. This is in the context of an anticipated no deal Brexit, in which case no further consideration of matters by Parliament is required. The Article 50 period, as extended, will have expired and withdrawal will occur automatically.

[54] This conclusion on the true reason stems from a number of factors. First, the prorogation was sought in a clandestine manner during a period in which litigation concerning the prospect of prorogation occurring was extant. Although it is possible to argue about exactly what was meant by the respondent’s [i.e. the UK government’s] fifth plea-in-law, it is not unreasonable to comment that even the respondent’s legal team appear to have been kept in the dark about what was about to happen. Secondly, the decision to prorogue in the manner sought was taken against the background of the discussions in which it was being suggested that MPs, and thus Parliament, would be unable to prevent a no deal Brexit if time was simply allowed to elapse, without further legislation, until the exit date. Put shortly, prorogation was being mooted specifically as a means to stymie any further legislation regulating Brexit.

[55] Thirdly, there is remarkably little said about the reason for the prorogation in the respondent’s pleadings. Although the court would not expect an affidavit from a Government minister or official testifying to the reason, it would expect averments in the respondent’s answers setting out that reason…

[56] Fourthly, there was, and is, no practical reason for a prorogation for what is, in modern times, an extraordinary length of time (5 weeks instead of about 7 days). The Memorandum of 15 August 2019, which does not emanate from a member of the civil service, does not state that there is any such reason…

And lots more on this point… followed by:

[57] At the Cabinet meeting, the tenor of the PM’s remarks, and the discussion around them, point to the various factors being used publicly to deflect from the real reason for the prorogation. That reason, as is reflected in the frequent references to it in the papers, centred on Brexit and not the intervention of the party conferences or the new legislative programme.

[58] The fact that there will be some days in September and October during which Parliament will be sitting, and thus potentially some time to discuss Brexit, does not detract from the general position that the prorogation is intended unlawfully to restrict that time. The court is not dictating the days on which Parliament should sit. That is a matter for Parliament to decide. It is merely holding that a particular attempt to restrict the available days is unlawful.”

And finally, in paragraph 60, Lord  Carloway concludes that

“that the advice to prorogue Parliament on a day between 9 and 12 September until 14 October, and hence any prorogation which followed thereon, is unlawful and thus null and of no effect.”

Strong stuff – and extremely far-reaching in the extent of willingness to look behind the overt reasons given by government for the length of the prorogation.

Conclusion

In sum, the English court followed a well-worn judical path that leads to giving  almost unquestioning support to the Executive.  There is in truth a wisdom in the courts not interfering too deeply in what may be seen as the political process, but in this case, the High Court was – if not cowardly – at least docile and naive in accepting at face value what was clearly a dubiously honest or complete statement of reasoning for the length of Parliamentary absence to be achieved.

What was worse still, in my view, was the Court’s refusal even to spell out that there are foreseeable situations in which it would be proper, and necessary, for the court to intervene, in order to protect Parliamentary democracy and human rights.  This English Court on this occasion abjectly failed to say so.

The Scottish Court of Session, by contrast, rightly laid down that the courts do have the right and the power – and the duty – to intervewn if necessary to protect Parliamentary democracy. 

Whether the (UK) Supreme Court will be willing to go quite as far in making inferences of fact so adverse to the government as those drawn by the Court of Session, I have some doubts, even though I am absolutely sure those inferences are valid in reality.  But at the very least, the Supreme Court should affirm the potential of judicial intervention if the true intent of a government (as expressed, or reasonably to be inferred) is to limit or prevent the exercise of Parliamentary democracy.