Justiciability and the ‘Political Question’ Doctrine: R (Miller) v Prime Minister [2019] EWHC 2381 (QB)

In 2010, I wrote an article in Public Law which is newly relevant because of court challenges to Boris Johnson’s advice to the Queen to prorogue Parliament. I’ve uploaded the paper to SSRN. Here is the abstract:

In this paper, published in 2010 but relevant again as the UK courts consider the lawfulness of Boris Johnson’s 2019 prorogation of Parliament, I examine the place of the “Political Question” doctrine in the common law of judicial review.

I argue that executive decisions, even on matters of high policy, should be presumptively reviewable. Indeed, there is an obvious trend in judicial decisions towards reviewability. I allow for two exceptions, where matters have been clearly committed to the discretion of the executive, but note that the same concerns which militate in favour of a presumption of reviewability operate to circumscribe the scope of these exceptions.

I also argue that judicial conclusions of “nonjusticiability” are generally based not on the fact that a particular matter is “political” or of “high policy” but on the inability of a claimant to make out a persuasive ground of judicial review.

Download it here.

This morning the Divisional Court handed down its reasons in R (Miller) v Prime Minister [2019] EWHC 2381 (QB). The Court held that the decision to prorogue Parliament was not justiciable, because it was a political matter beyond the ken of judges:

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 claimants’ 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 (at paras. 51, 54).

This may be the right conclusion, but the Court’s approach is analytically suspect. When does a matter become too “political” for judicial resolution? This invites a line-drawing exercise which is inherently arbitrary. Just as courts struggle to define “jurisdictional” questions in judicial review cases so too do they struggle with “political” questions. Furthermore, as a matter of constitutional principle, very good reasons are required to wall executive decisions off from judicial oversight. As I argued in 2010, it is necessary to identify a sound constitutional basis for nonjusticiability; invoking the “political” nature of a decision is insufficient.

A more analytically secure route to the Court’s conclusion is to say that the matter is justiciable but that no ground of review has been made out. Here the claimants are attacking the Prime Minister’s advice to the Queen, not the prorogation decision itself (which is committed to the absolute discretion of the Crown), so the claim of nonjusticiability rings somewhat hollow. Rather, the difficulty for the claimants is that the Prime Minister’s power in this regard is very broad. As the Court observed:

The skeleton argument for the Prime Minister notes that there have been a number of occasions in modern times during which Parliament was prorogued for a lengthy period. It was, for example, prorogued on 1 August 1930 until 28 October 1930; on 18 September 1914 until 27 October 1914 and then further prorogued until 11 November 1914; and on 17 August 1901 until 5 November 1901. Those facts also highlight that Parliament may be prorogued for various reasons. There is no statute, other law or any convention which requires Parliament to sit in constant session. The purpose of prorogation is not limited to preparing for the Queen’s Speech…Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review (at paras. 54-55)

Although the closing sentence refers again to nonjusticiability, I think the Court is best understood as holding that the claimants have failed to establish that the Prime Minister acted for an improper purpose, given the breadth of the power in question.

This is not to say that the claimants face an insuperable hurdle. I pointed in a previous post to grounds of review which might be available, Professor Paul Craig (here and here) has set out bases on which the decision might be attacked and, of course, the Inner House of the Court of Session this morning came to the opposite conclusion on the issue of lawfulness, holding that this prorogation violated constitutional principles. I will have more to say about the Scottish decision when the reasons are published on Friday. For now, I would urge you to re-read this 2016 post by Professor Jean Leclair, an expert on the use of unwritten constitutional principles.

Finally, I should add that an absolute rule against judicial intervention in respect of “political” decisions is dangerously overbroad. I set out a series of provocative (but hardly entirely implausible) justiciability hypotheticals in a comment on a Canadian decision in 2012:

1. The Prime Minister and his advisers are approached by a wealthy venture capitalist who has just won election to the House of Commons. In return for healthy bribes, a minister is sacked and replaced by the venture capitalist. Are the Prime Minister’s nefarious deeds non-justiciable in an action for conspiracy?

2. The Prime Minister and his advisers formulate a policy that only white males will be appointed to cabinet. An incriminating copy of an email from the Prime Minister confirming the policy is leaked and finds its way into the hands of a high-profile backbench member of Parliament who was passed over for promotion. Is the Prime Minister’s racist and sexist policy non-justiciable on judicial review (an action in tort presumably not being available)?

3. Scurrilous rumours circulate about a venerated investment banker who is being considered for nomination to the Order of Canada. Whispers of a website with incriminating photos abound. One of the decision-makers voices public concern about the appropriateness of nomination in the circumstances. If the banker asked to make written submissions addressing the rumours but was refused, would this refusal be non-justiciable?

The UK Supreme Court will hear argument in the prorogation cases next week. Whatever the substantive outcome, I hope its treatment of justiciability is analytically robust.

This content has been updated on September 11, 2019 at 15:55.