Did the flexibility of the UK's unwritten constitution facilitate changes that have made governing almost impossible?
Last Tuesday, the UK’s Supreme Court found that the Royal Prerogative was justiciable in what appears to be all circumstances. This is a departure from what had been assumed in the past (including by me), although the question is almost never raised in the courts and one can find examples of the Royal Prerogative being reviewed before, both a long time ago and more recently. This is what happens when your Constitution is the legal equivalent of a collection of Post-it Notes covered in scribble jotted down in response to various national crises.
“Well, the UK has acquired its very own SCOTUS,” I told friends, along with the rider “I wasn’t expecting that”. Sovereignty is no longer the Crown in Parliament, it’s the Crown and Courts in Parliament. There has been some silly behaviour on this point: not a few UK public lawyers immediately got to work trying to pull the veil of common law fiction — that even the most shocking judgment has always been the law, and that judges make “discoveries” rather than decisions — over the ruling. But that veil is starting to fray, snagged on the thorny sight of commentators shifting from the original claim being a no-hope case to the only proper understanding of the law in the space of less than a fortnight. Anyone who’s completed the first term of a law degree knows that judges make law. Please, fellow lawyers, stop it. The jokes are bad enough already.
Before the ruling, while I didn’t agree with the argument that the Royal Prerogative as a whole is not justiciable in England, I anticipated the UK Supreme Court would put down a clear marker that abuses of the prorogation prerogative would be open to review by the courts, but hold this prorogation was not such an abuse.
The old view, based on ex parte Everett (1989), was that there were two forms of Royal Prerogative: “administrative” Royal Prerogative which was justiciable and subject to the ordinary grounds of judicial review, and “high policy” Royal Prerogative, which either wasn’t justiciable or had special grounds for review (such as perhaps only allowing review based on a fundamental constitutional principle). According to that line of authority prorogation is clearly “high policy”.
I also thought the question of justiciability would depend on the nature of the challenge to the exercise of these “high policy” prerogatives, and that it probably wasn’t possible to say any exercise of them was irrational. Merely trying to gain a political advantage or having political motives would not be enough — as it would be with administrative acts. I suspected only things like bad faith, fraud, bribery, coercion or similar would invalidate an exercise of the prorogation prerogative. The same reasoning would therefore apply where the motive was to frustrate the operation of a statute.
I set the above out here because it was the common understanding of every English-trained lawyer. I was taught it at Oxford. However, I also learnt (in Edinburgh) that Scotland has a rather different tradition on this point, of which more later.
In any event, the review was upheld on the basis of a fundamental constitutional principle — the right of Parliament to exercise its political functions — so it may not have mattered for this case whether special grounds were applied or the Royal Prerogative is to be subject to the normal process of judicial review from now on.
The judgment overturns the settled understanding of the nature and extent of the prerogative power. Intellectually — and legally — I agree with it. One of the things I don’t like about the UK’s constitutional arrangements is the way the PM and Cabinet often wield what are ultimately monarchical powers. Always remember the prerogative power was once the power of kings: that Prime Ministers now use it is in many respects an accident of history. But this ruling does represent a major change. Be in no doubt about that.
I will, however, make one “practitioner” observation I think bears on what this case may mean in the future.
The Government argued its case before the Supreme Court very poorly. The key to the ruling is a question of fact: did the government present reasonable justification to the Court for its exercise of the power? The judgment ends up saying “no” reason was advanced.
What the Government appears to have done is present a series of reasons for the five-week prorogation that were transparently false, like arranging for a Queen’s speech, when in fact no Queen’s speech would reasonably take five weeks to prepare. A “normal” prorogation in those circumstances is about 10 days. The Government then refused to provide witness statements from the PM or Ministers to support its own case.
The courts are perfectly entitled, if they are given a transparently false reason for a particular action, to disregard it and insert what they consider to be the true reason based on the evidence in front of them. In this context, the Inner House of the Court of Session (Scotland’s highest civil court) was right to say the stated reason for the prorogation was not the real one and it is the real one which ought to be reviewed. The true reason uncovered in this case was of course Brexit.
This overriding desire for truth is stronger in Scots law, with its Roman-Dutch roots. The sine qua non of Roman law going back to classical antiquity is a belief that courts can (and should) ferret out the truth, rather than the common law tendency to prefer adjudication between two opposed arguments and plump for the stronger.
What the Government should have done was to accept the prorogation was Brexit related but argue that (a) prorogation was “high policy”, and (b) when the Royal Prerogative is used for a matter of high policy, it is either not justiciable at all or subject to special grounds of review.
Given keeping the Commons out of Brexit is an explicitly political motive, counsel would have needed to argue that these special grounds did not permit the court to ask whether ministers took improper considerations into account, or whether the reason for the prorogation went beyond the constitutional purpose of the power. Then deference to the argument may have been required. Psychologically, one suspects the judges were thoroughly annoyed the government assumed no such argument was necessary. Judges do not like being treated like mushrooms — kept in the dark and fed bullshit — a lesson baby barrister me learnt in my first week.
Of course, this approach may not have succeeded, but it would have been more honest, perhaps even provoking a serious argument over the limits of judicial review, including whether issues of substantial constitutional propriety ought to be left to Parliament or should be ruled on by the courts.
As it is, the Supreme Court was forced to spend a tremendous amount of time and effort explaining why it didn’t accept the Government’s stated reasons for the prorogation, and that is the substance of the written ruling. It is fair to say an argument this bad may well come to compromise the quality of the precedent created.
If I can go beyond doctrinal and procedural analyses for a moment, I think this points towards a gradual shift in what the English judiciary considers its role to be. Lord Bingham’s book, The Rule of Law, argued for a “thick” understanding of the rule of law, which contains various substantive political principles that the courts should enforce. This is opposed to the older, more procedural approach to the rule of law, which leaves matters of substantive constitutional propriety to Parliament.
This, to be fair, is in contrast to the situation in Scotland, and I do think it significant that it was a Scottish court, the Inner House of the Court of Session, that was first to break ranks. The Royal Prerogative as exercised by the Scottish Kings was always narrower than that in England (one of the reasons James I made a Divine Right of Kings bid only after the Union of the Crowns in 1603), and for very practical reasons. Local Scots lairds often had their own powerful “regality” jurisdictions where the King’s Writ simply did not run. Until 1660, Scottish monarchs were addressed only as “Your Grace”, not “Your Majesty”. Practically speaking, it means the royal prerogative in the United Kingdom is now governed by Scots tradition, if not Scots law sensu stricto.
This is not politicisation in the American sense — at least, not yet — but it does suggest the creation of a greater sphere of political discretion for judges. In some ways this is good. The Prime Minister responded to the Fixed Term Parliaments Act — which took away his right to call an election at his own discretion — with the dramatic and unwise measure of trying to shut down Parliament at a moment of national crisis. Parliament was too divided to defend itself against this abuse of executive privilege and under the old proceduralist model, the courts would not have defended it either.
But I do not think this “thick” rule of law is an unalloyed good. It will intensify popular resentment against the managerialism of the new political and professional class, their fascination with rule by experts and the fundamental distrust of electoral decision-making that lies behind it. The traditional Royal Prerogatives, which now face being eroded not only in Parliament but also in the courts, may come to be identified with the frustrated popular will and that would be a disaster. Unfortunately, a reason the Royal Prerogative (both for calling elections and proroguing) is now floundering is that the political class has come to identify it with populism. That is a very dangerous state of affairs.
The most cogent critics of liberalism (both in its classical form or the vague big-government progressivism of a Hillary Clinton or Tony Blair) have always challenged its comfortable self-exculpations, not least its tendency to disclaim political responsibility for social strife, or to see its roots as outside the political process. It has often depended on exclusion, and juxtaposed its putative universalism with a recurrent distrust of the franchise and careful policing of the boundaries — class and racial — of the political community. The common Remain argument that all the old Leave voters must be dead by now is a particularly repellent instance of distrust and boundary-policing.
I do suspect it means litigation of this type will become routine if, say, any government of any stripe has a remotely radical agenda. Imagine a putative PM Jeremy Corbyn’s schools policy (a sweeping plan announced at Labour Conference to “de-privatise” much of the UK secondary education sector) encountering a cut-down prerogative where the only effective way of doing what the policy requires is to use the power. Labour people who support the ruling should bear this in mind: clear Manifesto promises are now vulnerable to lawfare when the “prize” is that government action can be ruled unlawful and so of no practical effect.
Constitutions — even written ones — aren’t just words. They are conventions, and time, and interpretations, and practice. You don’t find out how they work until you have used them for a while. Changing them is dangerous. This desire to “modernise” — which Tony Blair had in spades and the LibDems had when in coalition with the Tories — is always going to create all sorts of unintended consequences. “If it ain’t broke, don’t fix it” is often good advice.
Now, though, the Big Electric Trainset is thoroughly broke, and it is going to have to be fixed. Talk of a written constitution and the adoption of US-style judicial confirmation hearings is already making its way around Westminster. Which means we may well find ourselves with an untested system. Which will probably take at least 50 years to settle down.
Relatedly, any possibility of a return to the relationship Britain had with the EU before 2016 — which was generally cordial but occasionally prickly, while Britain and Germany were quasi-allies without actually ever saying it — is gone too. So even if we don’t have Leave, we won’t really have Remain either. This is something many Remainers simply do not appreciate.
Ultimately, it’s up to Parliament to resolve these tensions. It’s the only body with the power and — via its electoral mandate — the legitimacy to settle Brexit, fix the crisis caused by the Fixed Term Parliaments Act (along with the broader crisis of confidence in politics), and restore a functional relationship between the political class and electors.
Parliament is unfortunately preoccupied with aiding the arsonists present in democracy’s basement.