supreme court

It was an alibi, not a justification

Published: 24 September 2019

Richard Parry discusses the way that the UK Government made it easy for the Supreme Court to regard the prorogation decision as unlawful

The Supreme Court’s judgment was stunning because it was unanimous and offered not a crumb of legal comfort to the UK Government. In a telling exchange on the second day of the oral hearings, Lord Reed quoted the ‘official’ reasons for prorogation quoted in the memorandum of 15 August by Nikki da Costa, and Lord Keen, the UK Government’s Advocate General for Scotland, picked these up to say that they made his case. On the following day, Reed had a slightly testy exchange with the opposing counsel Aidan O’Neill and commented ‘this isn’t as it were providing an alibi, it’s giving advice to the Prime Minister’.

In the event, Robert Reed was not sending a negative signal to O’Neill. The Court saw the da Costa advice as relating to 14 October as a good date for the Queen’s Speech not as a justification for a lengthy prorogation (para 60). Reed is an important actor as the Deputy President of the Court who will take over as President in January, and a former Scottish judge who found for the UK Government on the Miller case but then tore into it on the Unison case about the legality of employment tribunal fees. The way that the justices stood together marks the culmination of Lady Hale’s legal career before her retirement, and Reed co-wrote the judgment.   

Despite its victory in the High Court before England’s two most senior judges, the Lord Chief Justice and the Master of the Rolls, the UK Government was always on weak ground in resting its case before the highest constitutional court on non-justiciability. The Supreme Court is not in the business of granting expansive general rights to the executive. The fact that prorogation has in the past been exercised uncontroversially could not protect it from judicial review when it was exercised controversially. The legal leap the justices had to make was to accepting that judicial, and not just political, standards existed to assess Boris’s behaviour. The standards they found derived from the correspondence between stated purpose and the effect of the instrument used – there was no reasonable justification for the frustration or prevention of Parliament’s constitutional function that has occurred. The image in para 69, highlighted in Brenda Hale’s oral summary, of the prorogation proclamation being as if a blank sheet of paper was dramatic.

Government whips were already hemmed in by the terms of the Northern Ireland (Executive Formation) Act 2019 which required a ministers in both Houses to move motions that reports had been considered by 9 September and again by 14 October.  In the event the prorogation order encompassed every day between those two dates. The Order Paper for 9 September set aside time for five Northern Ireland debates but these were truncated into a single one of 90 minutes The order gave flexibility to prorogue between 9 and 12 September but the availability of  further time for Northern Ireland was resisted to the point of having prorogation itself take place after midnight. A similar event could have been can be foreseen for 14 October when the Queen’s Speech and associated debates was set to suck the oxygen of time from proceedings unwelcome to the Johnson government. 

Along the way Johnson’s team made a lot of points to the effect that the length of prorogation did not preclude rapid legislation, including that on the length itself. The problem for them was that the restriction of sitting time was so extreme. The weak arguments adduced for the length of prorogation showed a reluctance to stand purely on non-justiciability and so undermined its force. Although the Court’s judgments were as usual not a scoring of the quality of the oral arguments before it, Edward Garnier’s arguments on behalf of John Major were an impressive aspect of the anti-Boris case. As with the first Miller case on notification of withdrawal, the Court secured a ratings triumph on its video feed.

The dominant aspect of these cases is that Lord Carloway and his colleagues in the Court of Session read the matter right. Their three concurring judgments were not watertight on detail and logic but in the event the big picture had its way. No specific points of Scots law were claimed and so the Scottish and English courts were cast as concurrent and equal jurisdictions – and would the Supreme Court have gone the way it did without the Court of Session reasoning on hand?   Boris Johnson typically pushed his luck too far and made it possible for the Supreme Court to find a solid judicial ground for a decision that accords with their general jurisprudence on executive power. As the judgment says in para 39, ‘although the United Kingdom does not possess a single document entitled “the Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice’. The Court did not shirk from the capital ‘C’.  

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