Talking about the Case of Prorogations

I’m grateful to Radio Canada and the hosts of the Stereo Decisis podcast for giving me the opportunity to speak about the Case of Prorogations [2019] UKSC 41 this week. As it happens the decision was handed down on my birthday, which was quite the present.

I’ve embedded the Stereo Decisis discussion here:

And here (in French) is my interview with Michel C Auger on Midi-Info:

In this post I want to develop a few points raised in the Stereo Decisis discussion about the longer-term impact of the Case of Prorogations. I critiqued aspects of the judgment earlier in the week but whatever its merits it represents a major judicial statement on prerogative powers and review by the courts of executive action. Its effects are likely to reverberate around the common law world.

First, the Case of Prorogations represents further curtailment of the prerogative. The process of limiting or replacing prerogative powers has been ongoing for many centuries, with both legislatures and judges contributing over the years. This case will be influential not just because of the Supreme Court’s decision, but because of the broader context of a Prime Minister being held to have abused a prerogative power in order to neuter Parliament. If this is the tale that comes to be told about the Case of Prorogations — and I expect it will be — it will galvanize future legislative and judicial efforts to limit or replace prerogative powers.

More generally, given that the Queen did not refuse this prorogation — which many experts considered at least unconstitutional and which senior judges later found unlawful — the impression is likely to grow that the Crown is not a sufficient bulwark against potential abuses of executive power, an impression which in turn will further galvanize legislative and judicial opposition to the prerogative.

Second, the Case of Prorogations is a further step along the road to a full-fledged “culture of justification” in Commonwealth public law. Here, even a highly political decision, in a highly politicized context, was held not only to be justiciable but also to require a “reasonable justification”. Where once executive officials could rule by diktat, producing conclusions but not reasons, they are no longer free to do so, even in an area previously thought to be off limits for judicial scrutiny. Common law jurisdictions have gradually been moving from a “trust us” mode of decision to a “justify it” mode of decision. With its emphasis on the importance of providing a reasoned justification for assertions of executive authority, the Case of Prorogations is an important staging post on that journey.

Third, the Case of Prorogations highlights the dynamic relationship between procedure and substance in the common law tradition of judicial control of executive action. The conventional narrative is that, in recent decades, judicial review has expanded in scope to cover the “dead ground” vacated by other accountability mechanisms: in lieu of meaningful parliamentary scrutiny of executive action, so the story goes, we get heightened judicial scrutiny; in the Case of Prorogations the Crown’s limited ability to act as a check placed an onus on others to exercise their “constitutional responsibility” (at para. 30); and it is at least implicit that the Supreme Court saw itself as filling an accountability gap where neither Crown nor Parliament could act.

An alternative or complementary narrative, however, is that the increased production of reasoned decisions by administrative decision-makers has invited courts to scrutinize them more closely. Many factors contribute to the profusion of reasons — technology, statutory obligations and administrative best practice — but once they have been produced to the courts, scrutinizing them is almost irresisible. Was it ever likely that the judges in the Case of Prorogations would refuse to look closely at the Da Costa memorandum proferred as the basis of the prorogation advice? And once courts get used to voluminous records with extensive material explaining and justifying the decision under review, they may begin to compel its production, via procedural devices such as the duty of candour (developed by English judges) and substantive devices such as the imposition of a burden of justification. Either way, procedural and substantive developments in the law are intertwined. The result is that there is more and more judicial scrutiny of administrative decision-making. Woe betide, as in the Case of Prorogations, executive officials who do not carefully explain and justify their decisions.

This content has been updated on September 27, 2019 at 21:05.