Some Qualms about R (Miller) v Prime Minister [2019] UKSC 41

Brexit provided more grist for the public law mill this morning with the UK Supreme Court’s unanimous decision in R (Miller) v Prime Minister [2019] UKSC 41. In a judgment written by Lady Hale and Lord Reed, the Court held, first, that Prime Minister Johnson’s advice to prorogue Parliament was unlawful and, second, that the prorogation was a nullity. Parliament will reconvene tomorrow morning. I will have more to say about the remedy below but the Court’s decision not to simply declare that the advice was unlawful and leave the next steps up to the Prime Minister suggests a striking lack of trust in Mr Johnson and his advisors.

The core of the Court’s reasoning on lawfulness can be found in the following passage:

This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.

Such an interruption in the process of responsible government might not matter in some circumstances. But the circumstances here were, as already explained, quite exceptional…

The next question is whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy. Of course, the Government must be accorded a great deal of latitude in making decisions of this nature. We are not concerned with the Prime Minister’s motive in doing what he did. We are concerned with whether there was a reason for him to do it. It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks. Everything was focussed on the need for a new Queen’s Speech and the reasons for holding that in the week beginning the 14th October rather than the previous week. But why did that need a prorogation of five weeks?

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful (at paras. 56-61).

As to the remedy, the Court concluded that because the advice given to the Queen was unlawful, everything founded on that advice fell away. In law, there was no prorogation. Accordingly, “as Parliament is not prorogued… the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward” (at para. 70).

This is plainly a momentous judgment. It is also eminently clear and readable. Quite what the short- and long-term consequences will be is anybody’s guess, tied up as they are with the uncertainties of the Brexit process. For now, it seems to be a significant victory for the applicants, in itself a tribute to the eloquent advocacy of their legal team. As with any apex court judgment, it deserves careful scrutiny. I have qualms about several aspects.

First, as to justiciability the Court insisted that in respect of prerogative powers “it is necessary to distinguish between two different issues”. One, “whether a prerogative power exists, and if it does exist, its extent” and two, whether “the exercise of the power is open to legal challenge on some other basis” (at para. 35). Justiciability, the Court held, arises only in respect of the second issue, the first falling squarely within the judicial domain; matters might be non-justiciable for various reasons when it comes to the application of the grounds of review (legality, rationality and procedural propriety) but not in determining the scope of a prerogative power.

Despite the neatness of the distinction, however, it breaks down in the instant case. The Court’s analysis of the “extent” of the prorogation prerogative led it to conclude as follows:

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that 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 (at para. 50, emphasis added).

This is the language of rationality review. To put the point another way, the prorogation prerogative seems to contain a ground of review. Review for rationality — and the modern, substantive review variety, not old-fashioned Wednesbury unreasonableness — seeps into the determination of the scope of the prerogative.

There is no reference to Dicey’s definition of the prerogative as the “residue of discretionary or arbitrary authority” held by the Crown, nor of the definition offered in Miller (No. 1): ” the residue of powers which remain vested in the Crown,…exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation” ([2017] UKSC 5, at para. 47). Far from the prorogation prerogative being arbitrary, or existing as a broad discretionary power within fixed statutory parameters (such as the Northern Ireland (Executive Formation etc) Act 2019), it comes in fact with a built-in limitation of reasonable justification. That the prerogative is limited “by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict” is an innovation which belies the neat analytical distinction offered by the Court (at para. 49, emphasis added).

Second, the effect, in turn, of rationality review seeping into the determination of the extent of the prorogation prerogative is to place a free-standing burden on the Prime Minister to justify the exercise of the prorogation power. Rather than the onus being placed — as it ordinarily is in judicial review cases — on the applicant to ‘make her case’, the burden of justification is shouldered by the respondent. It will then be for the courts “to decide whether the Prime Minister’s explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation” having regard to the “extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions and its supervision of the executive” (at para. 51). It is true that an applicant has to identify such an inability on the part of Parliament, but the mere fact of prorogation will surely suffice to place a burden of justification on the Prime Minister, even in respect of a “short period” designed to end one parliamentary session and begin another (at para. 51). All prorogations necessarily interfere with Parliament’s legislative and scrutiny functions. Given, further, the obligations imposed on judicial review respondents by the duty of candour, any Prime Minister wishing to justify a prorogation will have to produce extensive (and persuasive) contemporaneous reasons, the failure to do so here having doomed the legality of Mr Johnson’s advice to the Queen.

The introduction of new limits on prerogative powers, including the imposition of a burden of justification on the Prime Minister may well be A Good Thing. It is certainly consistent with broader trends in UK public law relating to the progressive elimination of the prerogative and with the rise of a culture of justification in Commonwealth public law. No doubt, this case will find its place in the Canon, along with the Case of Proclamations and others. But it must nonetheless be recognized that today’s judgment breaks new ground.

Thirdly, the discussion of remedy has an appealing logical simplicity. Because the advice was unlawful and a nullity, everything built on it fell away:

It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect (at para. 69).

The consequences flowing from the unlawful advice are said to be uncontroversial, but I am not sure they are. Common law courts often make a distinction between a finding of illegality and its effect or consequences, as Jeff King explains. Judicial review remedies are discretionary, which allows judges to manage the effect or consequences of relief in any given case. When the effect or consequences of relief would interfere with, for instance, the interests of third parties or cause administrative chaos, judges tend to be very careful as to the choice of remedy. Judges can withhold a remedy altogether, but issuing a declaration is typically a better way of proceeding carefully: the effect is to leave an instrument tainted by illegality in place and allow other actors to decide best how to proceed. Furthermore, when courts are faced in subsequent cases by applicants ‘piggybacking’ on a remedy granted in a previous case they have an inveterate tendency to refuse to accept that illegal action was a nullity incapable of having legal consequences (see David Feldman).

So I have some difficulty with the proposition that unlawful advice to prorogue Parliament “should” (at paras. 69-70) lead to the quashing of the Order in Council and the conclusion that Parliament has not been prorogued. I also wonder whether, given that legislation which would ordinarily have ‘died on the order paper’ with the end of the parliamentary session instead lives on, the Court’s orders do have an effect on “proceedings in Parliament”, notwithstanding the Court’s careful analysis of the principle of parliamentary privilege (at paras. 63-68).

But my qualms as to remedy are relatively minor. My point is only that the Court had options. The one it chose was (subject to my observations about parliamentary privilege) open to it in my view. That it chose to put control of the next steps in the hands of Parliament implies scepticism about the likelihood of the Prime Minister responding in good faith to the Court’s judgment which, in turn, sheds significant light on Britain’s extraordinary contemporary political climate.

This content has been updated on September 24, 2019 at 16:54.