The Courts should be an emergency backstop to parliament, not an active player nor a spectator

The Courts should be an emergency backstop to parliament, not an active player nor a spectator

The Supreme Court has the chance to rebalance the relationship between the Courts and politics

The Brexit process might have inhibited growth, deterred foreign investment, broken political parties and bitterly divided politics, generated political violence and protest not seen for decades and placed a perhaps irredeemable strain on the Union but it has at least help clarify some important points of constitutional law and for that we should be grateful.

The next of these points will be determined when the Supreme Court rules this week on whether parliament is lawfully prorogued, after the English and Scottish courts, hearing essentially the same case, came to opposing conclusions. The two systems do, obviously, operate under different legal codes so both decision could in theory be correct but the failure to arrive at a clear, consistent judgement is of itself rather typical of Brexit in general.

Also rather typical of Brexit in general is the failure to respect boundaries. For once, we’re not talking about Ireland here but the legitimate overstepping of the constitutional marks by the legislature, executive and courts. Sadly, after both government and parliament have trodden beyond their traditional limits (or at least, sought to), the courts have joined that unfortunate party.

Before going into the reasoning, I should declare that I am merely an ignorant layman, with neither qualification nor experience in law. It could be considered presumptuous of me to lecture their learned lordships on their errors. On the other hand, even ignorant layfolk should be able to spot error of consistency, which is largely what I’m doing here.

That said, to my mind, both the High Court and the Court of Session had a bit of a shocker in their judgements, taking – in opposite directions – quite extreme views.

The High Court took a very hands-off approach, stating that it isn’t the job of the courts to get involved in political matters and that the decision to prorogue – including for whatever reason and for what length of time – is a political one. In other words, the High Court could not issue a judgement on the matter irrespective of the practical consequences of the prorogation.

This seems to me to be very dangerous reasoning. The dates chosen for the prorogation are consistent with the maximum length of time possible while still allowing for ministers to comply with the requirements of the Section 3 of the Northern Ireland (Executive Formation etc) Act 2019. What the Court implies in determining that the use of prorogation is non-justiciable (as opposed to prorogation being justiciable but this specific case being a lawful exercise of it), is that there was in law no need to time the prorogation to fit in with the N Ireland Act, other than that the Act contained provisions to handle such a prorogation. Had that not been the case, the government could have prorogued parliament for longer with impunity and if the Act couldn’t be complied with then such is life. Indeed, had it wanted to, the government could have prorogued parliament right through from the summer recess to October 31.

This credits the executive with far more power than it should have, including the power to override the practical effects of legislation and the ability to preserve itself in office or implement policy, temporarily at least and where primary legislation isn’t needed, against a hostile legislature.

By contrast, the Scottish Court of Session asserted a similarly sweeping but opposite conclusion: that the Court had the right to adjudge any prorogation against not the stated purpose but what the Court inferred from whatever evidence – direct or circumstantial – was the purpose of the prorogation.

In doing so, it disappeared down an unnecessary rabbit hole. Seeking to determine the intended purpose is a mistake: it doesn’t much matter why parliament has been prorogued (and in any case, political decisions are frequently taken for multiple reasons and despite multiple reasons); the more relevant question is what the effect of that action is. It’s a classic error to try to identify only one reason, or even one principle reason.

And that action is not substantially different from that which takes place every year. It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold, even accepting that recesses and prorogations are different beasts.

This isn’t to say that judicial reviews should never consider intent or whether a power has been used for a legitimate purpose. In the normal course of events, that’s an entirely legitimate question.

But this case isn’t in the normal run of events. Usually the power in question, and the scope of the body exercising it, is quite limited and granted by at least two layers of authority – for example, rules set by a regulatory body created by legislation. However, there are virtually no limits to the power of the government and parliament in consort, nor any establishing authority. Their scope is nothing less than the government of the entire country. The question of whether an action was for a legitimate purpose therefore becomes of itself almost irrelevant when together – and to some extent even individually, any purpose is legitimate. The relevant constitutional question in terms of their mutual interaction is therefore best understood not in terms of nebulous intent but in more readily establishable effect.

It is, after all, an absurdity to say that the prorogation is perfectly fine and valid if the Prime Minister really did tell the truth and wanted to prepare for a Queens Speech but unlawful if it was to stymie parliament’s scrutiny – when the former would ensure the latter, whether or not that was what the PM wanted.

In practice, ‘effect’ was how the Court of Session resolved the question anyway. Despite the absence of direct evidence, it concluded that the effect must imply the intent. They may well have been right about that but frankly, they would have been better cutting out the middle-man and resolving the case in terms of whether the effect of the prorogation is lawful in the circumstances.

On that point, it does seem odd that they almost entirely ignored the fact that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – but will have another chance in October. The alleged capacity of the government to truly engineer a No Deal Brexit on Oct 31 is difficult to reconcile with the reality of the Benn-Burt Act, demanding the government request a further 3-months extension in the likely even of no deal being agreed by 19 October.

To my mind, the question of prorogations in general must be judiciable but governments need to be given wide latitude in how they are used, given their inherent and legitimate political nature, and should only be ruled unlawful if they clearly render null the critical ability of parliament to hold the government to account or to legislate. The current prorogation, unusually long and at a time of high political tension though it is, does not meet that threshold. It should be allowed.

David Herdson

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