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Supreme Court against the people

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Written by Danny Nicol

In the second of this week’s articles on the Supreme Court judgement Professor Danny Nicol argues that the Court’s reasoning in Miller-Cherry is less than compelling. The Court’s claim that its judgement had nothing to do with Brexit cannot withstand serious scrutiny and it acted in a partisan fashion as if it were the legal wing of Remain

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The chorus that the United Kingdom Supreme Court’s decision on prorogation (R. (on the application of Miller) v The Prime Minister; Cherry and others v. Advocate General for Scotland [2019] UKSC 41) has “nothing to do with Brexit” cannot withstand serious scrutiny. The British electorate’s decision to leave the European Union is the pivot around which contemporary politics revolves.  There is no question to my mind that the aim of prorogation was to ease Britain’s withdrawal from the organisation, and thankfully the question of prime ministerial motivation was not a live issue in the Court’s judgment.  This post argues that the Court acted in a partisan fashion as if it were the legal wing of Remain, and that as a result the judiciary now needs to have its wings clipped.

The political fundamentals against which the Miller-Cherry case fell to be decided are as follows: (1) a majority of those voting in the EU referendum voted to leave; (2) a parliament was subsequently elected in which 85 per cent of MPs won their seats on the promise to respect the referendum result; and (3) in the event most of those MPs reneged on that promise and obstructed the country’s departure from the EU both with a deal (31 March) and now without one (31 October).  Prorogation however improved the chances that the government would be able to carry out the will of the electorate as expressed at both the referendum and the subsequent general election.

Lochnerising prorogation

It bears emphasising that the EU referendum was not merely a democratically taken vote of the British people.  It was the largest vote in British history.  It was also the most class-correlated vote in recent British history.  The less well-off were more likely to vote Leave.  Some 64 per cent of working-class voters did so.  By contrast the wealthier were more likely to vote Remain.  This should come as no surprise.  Forty years of intensified capitalist globalisation have been good news for the prosperous and bad news for the underprivileged.  And European integration with its famous Four Freedoms serves after all as regional office for capitalist globalisation.

The justices of the Supreme Court are well-to-do.  They have the same class interest in continued EU membership as do Britain’s upper-middle class generally.  But they have additional compelling reasons to frustrate Brexit, above and beyond their membership of the privileged social class.  European integration has meant “plain and simple judicial empowerment” as Joseph Weiler explains:

“Lower courts and their judges were given the facility to engage with the highest jurisdiction in the Community and even more remarkable to gain the power of judicial review over the executive and legislative branches even where such judicial power was weak or non-existent.  Has not power been the most intoxicating potion in human affairs?  … Institutionally, for courts at all levels in all Member States, the constitutional architecture with the Court’s signature meant an overall strengthening of the judicial branch vis-à-vis the other branches of government. (J. Weiler, The Constitution of Europe, Cambridge: CUP, 1999, 197).”

EU membership gifted British judges an escape route from the restrictions of parliamentary sovereignty, literal interpretation and Wednesbury limits of review.  It has bestowed upon them the right to set aside Acts of Parliament whenever these conflict with EU law.  The judges’ touching tenderness for parliamentary sovereignty, which looms large in the judgement, never extended to the British judiciary denying themselves this new power over statute law.  EU law also empowered British judges to escape lingering traditions of literalism in favour of a teleological approach whereby the courts may ignore the clear words of the legislature in favour of versatile notions of statutory purpose.   For good measure the EU is a gravy train of career opportunities and pleasurable gatherings for judges, practitioners and academic lawyers alike.  It fosters professional links and transnational judicial comity. The Justices of the Supreme Court therefore have not only a strong class interest but also a strong professional interest in keeping Britain in the European Union.  By taking a decision which hampers Britain’s departure they acted as judges in their own cause.

Making it up as they go along

Unsurprisingly therefore the Court’s reasoning in Miller-Cherry is less than compelling. The Court cited parliamentary sovereignty as one of its leading reasons for striking down the prorogation.  It starts out by providing an uncontentious definition of the doctrine: “that laws enacted by the Crown in Parliament are the supreme form of law in our legal system” (para 41). The Court then goes on, however, immediately to undermine that definition by saying that parliamentary sovereignty also means something else entirely different.  It asserts that parliamentary sovereignty would be undermined if the executive could prorogue Parliament for an unlimited period, so the judiciary have the power to invalidate prorogations (para 42). Yet parliamentary sovereignty is about how judges treat Acts of Parliament: it has nothing whatever to do with protecting the period of time within which Parliament should sit. It is not even clear whether parliamentary sovereignty’s underlying aim is to benefit MPs, let alone unelected, unaccountable peers.  Dicey saw the beneficiary as the electorate itself: “the electors can in the long run always enforce their will” (A. V. Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 1962) 73); and in recent history the doctrine has arguably helped governments far more than backbenchers.  Be this as it may, the novel doctrine that judges can strike down a prorogation ought not to be smuggled into our constitutional law under the petticoats of the well-established doctrine of parliamentary sovereignty.  It is not part of that doctrine: it is a brand-new, entirely separate doctrine, handily invented Lochner-style and made-to-measure to arrive at the outcome which the Justices find politically desirable. (Lochner v New York (1905) 198 U.S. 45, a case which became infamous for the US Justices abusing their judicial powers by advancing their personal political preferences.  See further D. Nicol, “Europe’s Lochner Moment” [2011] P.L. 308.)

Furthermore, the Court opens itself up to charges of humbug by concocting a doctrine which outlaws practical obstacles to the exercise of Parliament’s legislative omnipotence.  Lack of time may indeed be an issue which hampers Parliament from exercising its right to make the supreme law of the land.  But the supremacy of EU law represents a far more serious practical limitation to Parliament’s “right to make or unmake any law”.  It excludes ever greater fields from Parliament’s ability to make the supreme law.  Yet the judges have been quite content to set aside Acts of Parliament on EU grounds.  If British judges seriously believed in according pride of place to the practical expression of Parliament’s legislative omnipotence, they would surely rise up against their own power to disapply statute.

The Court also asserted that parliamentary accountability is fundamental to the constitution, so that prorogations must also be struck down where they prevent Parliament holding the executive to account.  But why infantilise Parliament?  It had two entirely feasible opportunities to prevent the prorogation: a vote of no confidence and a statute promoted by backbenchers.  In the current climate both these options stood a very high chance of success.  Yet Parliament chose not to take the necessary steps.  If the Supreme Court really has such a touching concern for Parliament and its monitoring role, it should surely respect Parliament’s autonomy to keep the executive as accountable as Parliament, not the Court, chooses.

A prorogation, the Court concluded, would be unlawful if it has the effect of frustrating or preventing Parliament’s functions as legislator and supervisor of the executive.   In such situations the Court will intervene if the effect is sufficiently serious to justify such an exceptional course (para 50). To borrow from J.A.G. Griffith, this formula “is sufficiently imprecise to enable judges to jump with the cat in any direction they choose”. (J.A.G.Griffith, The Politics of the Judiciary, (London: Fontana, 1997) 341.) There is ample flexibility within this test for the Court to come down on the opposite side of the line should a Remain Prime Minister ever use a similar prorogation to effect re-entry into the EU in the face of a Leave Parliament.

Finally, the Court denied that prorogation is a “proceeding in Parliament” such as to remove the Court’s jurisdiction:

It is not a decision of either House of Parliament.  Quite the contrary: it is something which is imposed upon them from outside”. (para 68)

The Court conveniently ignores what is learnt by rote by every first-year law student: that Parliament consists of the House of Commons and the House of Lords and the Queen.   The two Houses alone do not constitute Parliament in the legal sense: the Queen is a constituent part of Parliament too.  She is not remotely an outsider.  Parliament consists of all three institutions.  Proceedings between them, of which prorogations are undoubtedly one, are no business of the courts.

The Court quashed the prorogation and called on the Speaker and Lord Speaker immediately to enable each House to meet as soon as possible “to decide upon a way forward”.  With these words the Court lets the cat out of the bag.  In normal times the two Houses never “decide a way forward”.  Our system is parliamentary government not government-by-Parliament.  It is governments which determine ways forward and Parliaments which keep those governments accountable.  The Court’s strange phraseology makes perfect sense however in the context of Brexit whereby it is for backbench MPs and peers “to decide a way forward” in terms of preventing the country from leaving the European Union at all costs.

The stolen constitution

There is much to be said for the comment that if the Supreme Court does not want to be called the enemy of the people then it should stop behaving like one. The use of judicial power to try to thwart the biggest vote in British history represents an outrageous intrusion into politics by eleven individuals none of whom we can vote out.  It merits a strong response.  As Griffith observed, judges cannot be politically neutral because they are called upon to make political choices which are sometimes presented to them, and often presented by them, as determinations of where the public interest lies. (Griffith, The Politics of the Judiciary, 336).The only solution, insofar as there is one at all, is to remove completely from the judges’ ambit the most intensely political decision-making.  Quite apart from the judicial disempowerment represented by Brexit, measures such as repeal of the Human Rights Act 1998, withdrawal from the European Convention on Human Rights and rejection of all supranational arrangements which create or increase judicial power, now deserve far more serious consideration.  We need to move towards a constitution in which power is exercised by those whom the people can remove.  In its efforts to frustrate the will of the electorate the Supreme Court has taken the constitution away from the people: the people now need to find representatives who will legislate to take the constitution away from the Court.

Danny Nicol is Professor of Public Law at the University of Westminster. This article first appeared on the website of the UK Constitutional Law Association

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Danny Nicol

Danny Nicol is Professor of Public Law at the University of Westminster. This article first appeared on the website of the UK Constitutional Law Association