The following is my detailed, initial analysis of the Supreme Court’s judgment in the Cherry/Miller (No 2) case. For a shorter explanation of the case, see this 1,000 words post.
Reactions to the unanimous Supreme Court judgment in Cherry/Miller (No 2) [2019] UKSC 41 have been as strong as they have been diverse. On one analysis — including, arguably, the Court’s own — the judgment amounts to nothing more than an affirmation and application, albeit in a politically fraught context, of orthodox constitutional law. On other views, the judgment breaks new legal ground — and, depending on one’s perspective, in doing so either strikes a much-needed blow for constitutional principle or results in wholly improper judicial interference in the political arena. Against this background, this post considers four respects in which the judgment might be argued (in either positive or pejorative terms) to be novel. I suggest that the better view is that while the judgment develops and applies relevant elements of UK public law in sometimes novel ways — and certainly in novel circumstances — it is rooted in well-established constitutional principles. On this view, the case amounts to a significant restatement of a range of key matters, but cannot justifiably be criticised as having cast aside established principle or as an instance of improper judicial overreach.
Before embarking on that analysis, it may be helpful to
summarise the judgment. Following the prorogation of Parliament — a step
formally brought about by the Queen on the advice of the Prime Minister — the
Court was called upon to determine whether that advice, and the resulting
prorogation, was unlawful. As is well known, the Divisional Court had held that
this matter was one that a court could not properly consider on the ground that
it involved non-justiciable questions. In contrast, the Inner House of the
Court of Session considered itself to be under no such inhibition, and
concluded that the advice and the prorogation were unlawful on the ground that
they had been used improperly so as to “stymie” Parliament from discharging its
constitutional functions.
The Supreme Court disagreed with the Divisional Court, holding that the issues raised by the case were properly justiciable. Like the Inner House of the Court of Session, the Supreme Court concluded that the advice and the prorogation were unlawful. However, the Supreme Court reached this conclusion for different reasons. In particular, it held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification. As the Court put it in a key passage of its judgment:
[A] decision to prorogue Parliament (or to advise the monarch 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.
The Court concluded that no such justification had been
offered, given that prorogation of the relevant duration was not necessary to
facilitate the Government’s objective of securing a Queen’s speech and a new
legislative session. Having reached this conclusion, the Court articulated the
logical consequences by confirming that the prorogation was without legal
effect and that Parliament therefore remained in session.
A new understanding of parliamentary sovereignty?
The judgment is certainly striking for the way in which it
invokes two constitutional principles: namely, parliamentary sovereignty and
executive accountability. (In doing so, the Court happily avoided the trap into
which it fell in Miller (No 1) [2017] UKSC 5, in which
the notion of “constitutional principle” was invoked by the majority in a
lackadaisical fashion, often without any adequate attention to what the
relevant principles were.) That parliamentary sovereignty is a — if not the — fundamental principle of the UK
constitution is entirely uncontentious. What is more novel is the inference
that the Court was prepared to draw from the principle of parliamentary
sovereignty.
The Court stated, in entirely orthodox terms, that the
principle means that “laws enacted by the Crown in Parliament are the supreme
form of law in our legal system, with which everyone, including the Government,
must comply”. However, while this may be considered the kernel of the
principle, the Court went on to say that the principle is not thus confined.
Rather, the core principle produces penumbral implications that can themselves
properly be thought of as part of the principle of parliamentary sovereignty. This
is hardly controversial. Indeed, there are many existing examples of precisely
this phenomenon. One such example, as the Court pointed out, is that
prerogative power may not be used in ways that are incompatible with
legislation enacted by Parliament — a principle established in the seventeenth
century in the Case of Proclamations (1611) 12 Co
Rep 74, famously applied in the twentieth century in De Keyser [1920] AC 508, and perhaps
even more famously applied in 2016 in Miller
(No 1) concerning the triggering of the Article 50 withdrawal process.
Another implication of parliamentary sovereignty is that Parliament may not
bind its successors. A further such implication is one that the Supreme Court
had recent occasion to explore in Privacy
International [2019] UKSC
22, in which several of the Justices attached weight to the view,
expressed by Laws LJ in Cart [2009] EWHC
3052 (Admin), that access to court is a logical corollary of the
principle of parliamentary sovereignty, authoritative judicial interpretation
and curation of legislation being a prerequisite if Parliament is to have the
capacity to enact effective law.
Set against this background and properly understood, the
further step taken by the Supreme Court in Cherry/Miller
(No 2) is a relatively modest one. That further step entailed holding that
the sovereignty of Parliament “would … be undermined as the foundational
principle of our constitution if the executive could, through the use of the
prerogative, prevent Parliament from exercising its legislative authority for
as long as it pleased”. This does not mean that the Court could or should rule,
at the level of detail, on what is and is not an acceptable period of
prorogation. What it does mean, however, is that it would be incompatible with
parliamentary sovereignty for the executive to have legally unfettered
authority to prorogue Parliament. A potential response to this argument would
be to retort that parliamentary sovereignty requires only that the legislation
that Parliament happens to pass should
be respected by others, but that the sovereignty principle has no bearing on whether in the first place Parliament
has the opportunity to enact legislation. But to advance such a view would be
to engage in casuistry. The principle of parliamentary sovereignty is not an
arid, technical rule about the hierarchical legal status of legislation enacted
by Parliament (albeit that it does make provision in that regard). Rather, it
is a fundamental principle that determines and reflects the nature of
constitutional democracy in the UK. Looked at in this way the Court’s view
becomes an entirely unremarkable one: namely, that untrammelled executive power
to prorogue Parliament would render the sovereignty of Parliament a dead
letter, with the result that the sovereignty principle must deny the executive
any such power in the first place.
A new fundamental principle of accountability and a new approach to conventions?
The Supreme Court thus draws an important inference from
what is generally considered to be the kernel of the sovereignty principle —
but an inference is entirely warranted. The Court goes on to invoke a second
fundamental principle: namely “parliamentary accountability” — that is, the
accountability of the executive government to Parliament. Here, the Court
refers back to Lord Carnwath’s judgment in the first Miller case, endorsing his view that parliamentary accountability
is no less fundamental to the constitution than parliamentary sovereignty. The
Court might be thought to be breaking relatively new ground here, by
articulating parliamentary accountability in terms of a distinct and equally
fundamental constitutional principle. But even if this mode of analysis is
novel to some extent, the underlying thinking is surely not. The UK is a
parliamentary democracy in which the executive government is not directly
elected; rather, it formed out of, is sustained by, and is held to account by
Parliament. In such a constitutional setting, to ascribe to the executive
government a legally limitless power to neutralise the very institution upon
which it depends, and whose constitutional responsibility it is to hold the
executive to account, would be nothing other than perverse.
Of course, the notion of executive accountability to
Parliament — or ministerial accountability — is generally regarded as a
constitutional convention. The question therefore arises whether the Supreme
Court in Cherry/Miller (No 2) did
something in respect of constitutional conventions that is itself novel and/or
which is inconsistent with the conservative stance it adopted in that
regard in the first Miller case. In
particular, does the Court by invoking accountability in the way that it does,
somehow elevate a constitutional convention into a legal principle, thereby
doing the very thing that it said courts should not do in Miller (No 1), in which it
said that courts were neither the “parents” nor the “guardians” of conventions?
The answer to that question is “no”. The Court in Cherry/Miller (No 2) manifestly does not
legally enforce the constitutional convention of executive accountability to
Parliament, and therefore does not treat that convention as a legal principle.
What the Court does — and it is entirely justified in doing so — is to take legal
cognisance of the underlying constitutional reason or principle that
underpins and animates the convention of accountability to Parliament. The
principle in question is that in a parliamentary democracy, there must be
adequate opportunity for the executive government to account to and to be held
to account by the legislature. There is no reason why this constitutional
principle cannot both underpin a constitutional convention — and thus
institutionalise a required mode of political behaviour — while also serving as
a constitutional standard to be applied when lawfulness of executive action by
reference to the scope of its legal powers. This does not amount not to
judicial enforcement of a constitutional convention. Rather, it reflects the
reality that the dividing line between the political and legal spheres of the
constitution is not rigid, and that fundamental principle can and does inform
both conventional practices and legal analysis. Viewed in this way, the legal
significance ascribed by the Court in Cherry/Miller
(No 2) to the constitutional principle underpinning the convention of
accountability to Parliament is wholly unproblematic, and serves as an
important reminder that the legal and the political constitutions are related
as well as distinct.
A new approach to justiciability?
As noted above, the Divisional Court took the view that the
relevant issues were non-justiciable, and that the court could therefore play
no part in this matter. In disagreeing with the Divisional Court on this key
point, the Supreme Court was careful in the way in which it characterised the
nature of the issue before it. Clearing the decks, the Court rightly pointed
out that the mere fact that a question before it “is political in tone or
context” cannot render the matter non-justiciable. The question is not whether
the issue arises in circumstances that are political in nature — if that were
the test, then few, if any, government decisions would be amenable to judicial
review. Rather, the question is whether the issue amounts to a legal question, whatever political implications that question
might have. Having established these basic propositions, the Court concluded
that the issue before it was indeed a legal issue and that, as such, the issue
could not be non-justiciable, legal questions being par excellence questions for the courts.
How did the Court reach this conclusion? It did so by
holding — as I argued, in an earlier post,
that it should — that the issue before it concerned not the lawfulness of the
exercise of the prorogation power, but the logically and legally prior question
of whether, to begin with, there was a relevant and sufficient power capable of
being exercised in the first place. This is not to suggest (and the Court was
not suggesting) that there is no prorogation power at all: but the crucial
issue, according to the Court, was whether the scope of that power had been exceeded. The Court thus drew a
distinction between questions about “the lawfulness of the exercise of a prerogative
power within its lawful limits” and questions about “the lawful limits of the
power and whether they have been exceeded”. This may, at first glance, appear
to be a distinction without a difference. However, what the Court appears to be
doing is drawing a distinction between judicial review challenges that are
concerned with whether the impugned executive action lies with in the scope —
or, as it is sometimes put, the “four corners” — of the power, and challenges
which contend that a power exercised within its “four corners” has nevertheless
been used unlawfully (e.g. on the ground that the rules of natural justice were
not observed in its exercise).
In my earlier post on this topic, I argued that if the issue in Cherry/Miller (No 2) were approached in terms of determining whether the power had been used for an improper purpose — such as avoiding accountability to Parliament — then this would render the issue justiciable. I made that argument precisely on the ground that this would go to the question of the scope of the power as distinct from (to use the Supreme Court’s language) the lawfulness of the exercise of the power within its lawful limits, my argument being that (to use the Court of Session’s language) the prorogation prerogative does not in the first place extend to the “stymying” of parliamentary scrutiny of government. The Supreme Court’s approach, however, is different in one important respect from that which I advocated. The Court chose not to address the question of the propriety or otherwise of the purpose for which the power was used, but instead considered the adequacy of the reasons advanced by the government in support of a prorogation decision that impinged upon fundamental constitutional principles. This allowed the Court to avoid potentially fraught questions about the Prime Minister’s motivation in attempting to secure an unusually long prorogation.
A new approach to the standard of review and the principle of legality?
The question arises, however, whether in addressing this problem the Court merely created another. Surely, it might be argued, the question that the Court set for itself — namely, whether there was an adequate reason to support an executive act that impinged upon a fundamental constitutional principle — concerns the lawfulness of the exercise of an acknowledged power, rather than a prior question about the scope of that power? Such a view would seem to follow from the fact that questions about the adequacy of reasons would appear to raise questions about the reasonableness of administrative decisions — questions that are traditionally understood in taxonomical terms to be about the lawfulness of the exercise of administrative powers as distinct from their scope. But if the issue were characterised in this way, doubt would have been cast on the appropriateness of judicial oversight: the court would no longer merely be answering a crisp legal question about the scope of power, but would instead be involving itself in the superintendence of the exercise of the power.
However, the Court avoided any such problem by, in effect,
holding that there is no sufficient power
in the first place to prorogue Parliament when doing so would interfere
with fundamental constitutional principle for no adequate reason. This was
achieved by, in effect, treating the relevant constitutional principles —
absent reasonable justification for their infraction — as hard limits upon the
scope of the power. In other words, the Court (without saying as much) treated
the issue as one of ultra vires, the conclusion being that (in the
absence of an adequate justification) the government never in the first place
had authority to prorogue Parliament contrary to fundamental principles. In
this way, questions about the adequacy of the government’s reasons are
transformed from matters that would bear upon the reasonableness of the decision to matters that determine whether,
to begin with, the scope of the power — in the “four corners” sense — has been
exceeded.
This does not break entirely new ground, but it does mark a significant extension of the principle of legality. In El Gizouli [2019] EWHC 60 (Admin), the Divisional Court sought (wrongly, in my view) to confine that principle to an interpretive one that (therefore) applies only to legislation. In Cherry/Miller (No 2) the Supreme Court makes it plain that the principle of legality is a principle of much broader application that can cause prerogative power to be limited by fundamental constitutional principle and which can thus bring about, in effect, the elision of review on reasonableness and scope-of-power grounds, thereby allowing justiciability-based objections — which have traditionally enjoyed particular purchase in respect of prerogative powers — to be neutralised. A potential concern with this approach is that it short-circuits the deferential approach to review that is normally applicable when the unreasonableness doctrine applies, by instead treating the matter as one of vires that is unencumbered by the high Wednesbury threshold. That is, the question is no longer, on this approach, whether the impugned action is manifestly unreasonable, but is rather whether the court is satisfied that the reason offered in support of it is satisfactory. That is, on the face of it, a much more exacting test, and its substitution is open to the potential criticism that by a conceptual sleight of hand, the Court is facilitating a much stricter form of scrutiny.
There are, however, two reasons why this concern is likely
misplaced — provided that the courts apply this approach with appropriate
sensitivity. First, it is to be inferred from the judgment in this case — as
well as from judgments in other cases that have invoked the principle of
legality — that this is approach is only available to begin with when a
fundamental constitutional principle (or right) is in play. It is this that triggers
the limit on vires by dint of denying the executive any authority to interfere
with the relevant principle absent adequate justification. The normative case
for such heightened scrutiny when basic constitutional principles or rights are
at stake is plain.
Second, it would be wrong infer from Cherry/Miller (No 2)
that the Court’s approach to the reasonable justification assessment, when
enforcing scope-of-power limits derived from constitutional principle, will be
uniformly high. Indeed, while this proposition was not significantly tested by
the facts of the case, the Court acknowledged it and signalled that it would be
sensitive to it where relevant in the future. The reason why the proposition
was not significantly tested in this case is thanks to the weakness of the
government’s own case. This relieved the Court of any need to closely to
evaluate the quality of the government’s reasons for the prorogation: instead,
the Court found it “impossible … to conclude, on the evidence that has been put
before us, that there was any reason
— let alone a good reason — to advise Her Majesty to prorogue for five
weeks” (my emphasis).
However, the Court went on to indicate that if relevant
reasons had been offered, thus necessitating their qualitative evaluation by
the Court, it would have recognised that “the Government must be accorded a
great deal of latitude in making decisions of this nature”. The clearly implies
that the standard of review of the quality of any reasons would have been
relatively deferential bearing in mind the context, which in turn suggests that
by applying the principle of legality the Court is not straightforwardly flicking
a switch that swaps reasonableness for correctness review: the question remains
whether there is reasonable justification, and what will be taken to constitute
such justification will vary according to the context. Importantly, however, no
occasion for such deference arose in Cherry/Miller (No 2) because, to begin
with, no reasons capable of supporting the decision were offered by the
government. The proposition that the court will not and cannot defer to the
executive in the absence of the executive having taken relevant steps,
including by means of considering relevant issues and formulating relevant
reasons, is uncontroversial, as the House of Lords acknowledged in Miss
Behavin’ [2007] UKHL
19.
Conclusion: A new approach to constitutional adjudication or the application of established principles?
So does Cherry/Miller
(No 2) break new ground? Does it represent a new approach to constitutional
adjudication? Taken in isolation, none of the potentially innovative features
of the case identified above is necessarily ground-breaking. From the doctrine
of parliamentary sovereignty, the Court draws a sensible and warranted
inference. The Court acknowledges that the notion of executive accountability
to Parliament is not only (as has long been recognised) something that is
institutionalised in convention, but is also a constitutional principle that is
capable of informing analysis of the legality of executive action and shaping
the parameters of governmental authority. Yet in offering this insight, the
Court does not affront the orthodox view that conventions are not legally
enforceable. Meanwhile, the Court engages in judicial review in relation to a prerogative
power that has never before been subject to review, but in doing so applies
established principle, given that the Court is careful to frame its task as one
of purely legal analysis. Moreover, the Court acknowledges that if relevant reasons
had been advanced by the government, its evaluation of their adequacy would
have had to be informed by considerations of due deference, given the latitude
that the government properly enjoys in this sphere. And in characterising the
specific legal question that falls to be answered, the Court invokes an existing
principle — the principle of legality — albeit in a novel way, by applying it
to prerogative power.
Nevertheless, while it is possible to present each part of
the analysis in the case as at least relatively orthodox, the judgment’s
cumulative significance is greater than the sum of these parts, and it
undoubtedly represents an important milestone in the narrative arc of modern
public law in the UK. Taken in combination, the various factors that are at
work in this judgment paint a picture of a Supreme Court judiciary that is
prepared to serve as a guardian of constitutional principle in a way and to an
extent that previous generations of apex court judges in the UK were not. What
stands out about this case is the way in which fundamental constitutional
principle is operationalised so as to produce significant and concrete
limitations on governmental powers that have hitherto been considered to be
no-go areas for the courts. In the principle of legality, the courts have long
had at their disposal a powerful tool for confining the executive’s legal
capacity to affront fundamental constitutional principle. But in Cherry/Miller
(No 2), the potential of that principle is writ large — thanks both to the
Supreme Court’s resistance to attempts artificially to limit or marginalise the
relevant principles and to the Court’s willingness to apply those principles
not only to a prerogative power but to a power that was (incorrectly)
considered to lie deep within political territory and thus to be wholly off
limits to judicial review.
What, then, are we to make of this case? Is it a legal
landmark, or is it an orthodox application of existing constitutional
principle? It is both. The judgment affirms, articulates, clarifies, develops
and applies fundamental principles governing the place of Parliament within the
constitution and its relationship with the executive. In this sense, the
judgment is either orthodox or is at least firmly rooted in orthodoxy. What
renders the judgment a legal landmark is the willingness of the Court to take
those principles to their logical conclusion in the face of a perfect storm of
factors that, on the more superficial analysis favoured by the Divisional
Court, appeared to close the door to judicial review. Thus the Supreme Court
was prepared to draw inferences from, rather than relying exclusively on the
formal core of, the principle of parliamentary sovereignty. It was willing to
spell out the legal-constitutional implications of the political-constitutional
principle of executive accountability to Parliament. It rejected the sloppy
argument that because the issue had political implications it could not, at
root, be a legal matter. It extended the principle of legality such that it now
falls to be understood — as it always should have been — as a mechanism for giving
concrete legal effect to fundamental constitutional principle, irrespective of
whether the legal powers at stake are conferred by legislation or arise under
the prerogative. And — crucially — the Court was prepared to take all of these
steps simultaneously, with the result that what appeared, following the
Divisional Court’s judgment, to be an utterly hopeless case culminated in a
powerfully reasoned and unanimous Supreme Court judgment.
This helps us to understand why the case is capable of being at once both rooted in orthodoxy and path-breaking. The Supreme Court was prepared to take a series of significant — but individually entirely legitimate — legal steps in circumstances that were politically extraordinary and that resulted in the transformation of fundamental principle into hard and novel limits on executive authority. In doing so, the Court does something that is both trail-blazing and mundane. It is trail-blazing because “forbidden” executive territory has been shown to be anything but by a Court prepared to treat fundamental principle as something that is neither a mere rhetorical flourish nor something arid and technical to be understood in isolation from the broader constitutional landscape in which it sits. Yet the judgment is simultaneously mundane because, in the final analysis, it stands for the most modest of constitutional propositions: that the UK is a democracy founded on parliamentary sovereignty, executive accountability, and the subjugation of government to law; that, from those basic constitutional facts of life, it follows that the government is not afforded an unfettered power to deny the legislature the opportunity to perform its vital constitutional role; and that questions about the legal scope of government power are questions of law for courts of law. Once those self-evident propositions are accepted, it becomes clear that judicial intervention in this matter is a realisation of, not an affront to, the separation of powers. Indeed, for the Court to have declined to play its part, and to have refused to determine and enforce the legal limits upon the government’s authority to suspend Parliament, would have been nothing other than a dereliction of its constitutional duty.
I am grateful to Jack Williams for his comments on an
earlier draft of this post. The usual disclaimer applies.