The recent decision of the Supreme Court on prorogation has attracted a great deal of media and scholarly attention. The case has divided opinion, from the Leader of the House calling it a “constitutional coup” to Guy Verhofstadt hailing it as evidence that “the rule of law in the UK is alive & kicking”.
In the midst of this febrile atmosphere, it can be hard to digest the more technical aspects of what is a unique and important legal case. Below are three key takeaways from the Cherry/Miller 2 judgment.
A new legal test
Lawyers and judges are always looking for a key paragraph or phrases to sum up the conclusion of a court case. In a system built on precedent, this reasoning can make and shape the law in future.
In Cherry/Miller 2, paragraph 50 is about as close as it gets:
“A decision 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”
This is essentially a new legal test, albeit one built on orthodox constitutional principles. It is surprising in the sense that it is stringent. The onus is on the government to prove that it has a reasonable justification and argue what ‘reasonable justification’ means.
It will be interesting to see how this plays out if and when prorogation is used henceforth. Another pertinent question for future proceedings will be to what extent this test is transferable to analogous situations. For example, there may be instances where the government frustrates the ability of parliament to scrutinise it by failing to answer parliamentary questions or to cooperate with select committee investigations. Will this precedent be applicable then?
A wide view of parliamentary sovereignty
For centuries it has been commonly accepted that the basis of Britain’s constitution is the sovereignty of its parliament, especially its elected chamber. But defining this principle has been fraught with difficulty and has spawned thousands of books and journal articles.
For some, parliamentary sovereignty means only that Acts of Parliament are the highest form of law or that those commanding a majority get to form the Government. Quite clearly, the Supreme Court does not share this narrow view and sees parliament as the central actor in our Constitution.
The court refers numerous times to the need for parliament to hold the government to account and seems to see accountability as a core constitutional principle. The court also emphasises the importance of select committees and written parliamentary questions; this normal business could have been conducted even if parliament went into recess as planned but not in the case of prorogation.
The judiciary appears to be willing to protect a whole host of legislative functions: the ability of parliament to ask questions, debate and scrutinise policy, conduct investigations and hold the government to account. Parliamentary sovereignty from this angle is much more than the notion that Acts of Parliament are the highest form of law. It is the view that parliament is at the heart of policy-making and governance in this country.
The role of the judiciary
For decades the third institution of government, the judiciary, has languished in the shadows. Britain’s constitution has been mainly focused on political bodies, certainly in terms of its most important institutions. This started to change with the rise of judicial review in the latter half of the 20th century and the introduction of the Human Rights Act at the beginning of the 21st.
Cherry/Miller 2 can be seen as part of a wider shift towards a more significant and high-profile judiciary within our constitution. As mentioned above, it is doubtful as to whether a decision of this nature has ever received such public attention.
Whilst a powerful Supreme Court having major influence over the issues of the day is well-established in countries like the United States, it will be interesting to see how this plays out in this country. Perhaps it will lead to more critical scrutiny of what our courts do, or more disagreement over how judges are appointed.
It could even lead to increased public engagement with how our constitution works - and that can only be a good thing at the present time.