Timothy Endicott: Don’t Panic

The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is the representatives of the people (and the people themselves in an election) who ought to have, and to exercise, responsibility for holding the Prime Minister to account for misconduct in proroguing. If the judges were to accept the novel claims in Petition of Cherry and other/s [2019] CSIH __ and R (Miller) v Prime Minister No 2 [2019] EWHC 2381 (QB), and forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility.

And the present political crisis is no time to be changing the constitution. It would be better for the courts to adhere, in spite of the worst of political machinations, to a structure that is more sustainable and robust than people tend to remember. This is no time to panic, and judicialize the operations of Parliament.

Are these claims really novel?

The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law. And in the days before the Fixed Term Parliaments Act, it was never held to be unlawful for the government to stymie Parliament by a dissolution. But the claimants in the Cherry case and Miller No 2 (‘the claims’) rely on the most orthodox propositions of administrative and constitutional law (‘ordinary public law principles’, as the claimants put it in Miller No 2 [23]): that executive power cannot lawfully be used for improper purposes, and that Parliament is sovereign. The two arguments connect, of course: it is because of the sovereignty of Parliament, according to the claimants, that it is improper –and therefore unlawful– to stymie Parliament.

There is a strong allure in these arguments for judicial action against abuse of power. But I will argue that they only misapply the principles that demand judicial interference in the great improper purposes cases such as R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 and Padfield v Minister of Agriculture [1968] AC 997. To Professor Paul Craig and to others, it seems deeply unattractive to say that an abuse of power should not be subject to judicial control. But it is no accident that there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament.

The Inner House in Cherry held that the judges must prevent the Prime Minister from using prorogation to stymie Parliament. The English Divisional Court (like Lord Doherty in the Outer House of the Court of Session) held that the judges cannot do so: ‘that is not territory in which a court can enter with judicial review.’ [55] Suppose, as Nicola Sturgeon put it, that ‘The prime minister’s behaviour has been outrageous and reckless, and has shown a complete disregard for constitutional rules and norms.’ Or that, as Lord Brodie put it in the Inner House in Cherry, it was ‘…an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. Then what the Prime Minister has done is worse than many unlawful uses of executive power. You see the attraction –we can all feel it– in thinking that the judges must be prepared to step in.

But ‘executive power’ is not a thing that is subject to uniform judicial supervision. Lord Doherty at first instance in the Outer House in Cherry got the most important point on the table when he said that the judges’ role depends on the type of executive power: ‘The court’s role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise’ [13]. That dependency is at the heart of this case.

In Miller No 2, the claimant’s counsel, Lord Pannick, offered an account of the dependency: the courts have reason to be more or less cautious (and sometimes very cautious) in concluding that a power has been exercised for improper purposes [27], [37]. The Divisional Court held, instead, that ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts’ [68] (cf ‘the decision of the Prime Minister was not justiciable.’ [1]). And Lord Doherty ruled in the Outer House that ‘the claim is non-justiciable’ [13].

Justiciability and non-justiciability in administrative law are, primarily, properties of issues or questions, rather than of exercises of power, or of claims. In GCHQ [1985] AC 374, for example, the judges decided that they could not answer the question of whether there would be a serious risk to national security if the Prime Minister consulted the applicant Union. The Union lost because in order to decide in the Union’s favour, the judges would have needed to answer that non-justiciable question.

The ‘non-justiciability’ here is a different matter: it is a property of the decision to prorogue, according to the Divisional Court in Miller No 2 [1], [68]. Lord Doherty treated it as a property of the claim [26], [27]. It may be the case that non-justiciable political questions would need to be answered in order for the judges to say whether the Prime Minister’s purposes were proper. The judges of the Divisional Court in Miller No 2 certainly considered that such questions arose in the case; this would have been enough to justify their decision to reject the claim (as in GCHQ). But they held something stronger: that ‘The question of justiciability comes first, both as a matter of logic and of law.’ That is, it seems that they would not be prepared to pass judgment on the propriety of the Prime Minister’s purposes, regardless of the facts. Imagine that an alleged improper purpose involved no political question that judges cannot appropriately answer. There would still be no judicial review, on the Divisional Court’s approach. It is not just that the judges should be very cautious; they should not even ask, for the purpose of a challenge to the lawfulness of a prorogation, whether the Prime Minister’s purposes were proper.

That result –which seems intolerable to some lawyers, and to the claimants– is, with respect, exactly right. In the great cases on improper purposes in administrative law, Lord Pannick’s approach is a sound approach to the dependency of judicial review on the nature of the case: the judges should be more or less cautious, in answering questions that are less or more ill-suited to judicial decision. But in those cases, the power in question (to initiate a statutory inquiry; to spend overseas development money…) is not the Prime Minister’s power to regulate a Parliament that is responsible for his tenure in office, to which he is accountable, and on which he is utterly dependent. The dependency of the judicial role on the nature of the power is more radical than Lord Pannick’s argument suggests. It is a matter of constitutional principle that the House of Commons should have responsibility for responding to wrongdoing in the exercise of the Prime Minister’s power over its own proceedings.

The Divisional Court’s term, ‘non-justiciable’, needs disambiguating; lawyers use it both when it is more or less unsatisfactory for judges to base a decision on their own answer to some question, and also when it is unsatisfactory for judges to hear a claim, or to interfere with a decision. The Divisional Court’s reasoning in Miller No 2 is justified; the justification could alternatively be expressed accurately without using the word ‘justiciability’. It could be expressed by saying that the common law does not regulate the scheduling of parliament proceedings. As a result, the case that the prorogation was unlawful lacks its very first premise.

It would be an inauthentic contribution to democratic politics, if judges gave the Prime Minister their seal of approval for his truthfulness and for his purposes in a prorogation. Likewise, if they inflicted on the government their adverse take on this political move. It is not merely that the judges would have difficulty answering the questions at stake; it would be inauthentic because while any of us can pass judgment on a Prime Minister’s truthfulness and his purposes, the judges would be giving the binding authority of their court to their own answers to these questions of parliamentary politics. This form of ‘non-justiciability’ –as the Divisional Court called it– arises because the judges’ supervision would diminish Parliament’s responsibility for its own operation.

Extreme prorogation

Here is one potentially good argument for judicial interference: that it might be necessary in the interests of constitutional governance, where the Prime Minister is able to prevent the House of Commons from exercising the very form of control that, I have said, it ought to exercise. The argument is, as Jake Rowbottom has put it, that:

‘the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.’

That is not this case. Parliament was not stymied by the prorogation; it was energised. It legislated in three days to require the Prime Minister –against his headline policy– to seek an Art 50 extension. The House of Commons could have thrown his government out. It could have done so after the legislation was passed. The House could have agreed to either of the Prime Minister’s proposals for an early general election. There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct.

Now what if we imagine the worst: a prorogation sine die (perhaps to avoid a vote of no confidence). Do we need the courts to protect us from that? The government would run into the buffers of its own need, in the 21st century, for frequent parliamentary sessions, and eventually the Fixed Term Parliaments Act would require a general election. But it would never come to that; ordinary day-to-day politics prevents prorogation sine die. No Prime Minister could hold together a party while doing that. There isn’t actually a need for judges to be on standby to fill in for a House of Commons that is prevented from discharging its own responsibility.

Conclusion

The House of Commons does not need the courts to take over its responsibility for holding the Prime Minister to account for scheduling sessions. The courts and the politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of Parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of Parliament’s proceedings.

In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford and Fellow in Law, Balliol College

(Suggested citation: T. Endicott, ‘Don’t Panic’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

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