Alan
S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author
welcomes comments on the blog at a.s.reid@shu.ac.uk.
Lord
Doherty, gave his eagerly anticipated judgment on Wednesday morning in the
Outer House of the Court of Session. The judgment in Cherry [2019]
CSOH 70 was a legal blow for the 79 petitioners and the wider Remain
Alliance. Lord Doherty had been asked by the petitioners to rule on the
legality or otherwise of Prime Minister Johnson's advice to the Queen to
Prorogue Parliament sometime between the 9th and 12th of September. Lord
Doherty roundly rejected the petitioner's pleas, holding that the decision to
prorogue was an exercise of prerogative power that was non-justiciable, since
it involved matters of high policy and political judgment.
It
is supremely ironic that the Scottish court, at the heart of Remain Scotland,
delivered a conservative judgment, albeit with a small c. However, the judgment
was not altogether unsurprising. As I have argued previously,
the main obstacle for the petitioners was the justiciability question (ie
whether the issue should be decided by courts, or left to politics) and this is
where the case fell. Lord Doherty inclined towards the traditional dichotomy
between prerogative powers that are reviewable and those which are not ((R (Sandiford) v Secretary of State for
Foreign and Commonwealth Affairs [2014] 1 WLR 2697, de Freitas v Benny [1976] AC 239 and the dicta of Lord Roskill in Council of the Civil Service Unions v Minister
for the Civil Service [1985] AC 374 (the GCHQ case)).
Famously,
Lord Roskill in the GCHQ case
observed, obiter dicta, that certain
executive powers were not amenable to judicial review. For the present case,
the main executive power excluded from judicial review is the power to dissolve
Parliament. Thus, according to Lord Doherty's view, decisions of a Prime
Minister, or the wider Privy Council, to advise the Queen to prorogue
Parliament are matters of high policy and involve highly politically sensitive
assessments, decision making which is generally beyond the purview of the
courts.
However,
notwithstanding the terse rejection of their claim, the petitioners have
indicated their intention
to appeal. At first light, this may appear like clutching at straws,
however, it is at least arguable that the original decision could be reversed.
In these topsy-turvy times of Brexit, anything is indeed possible and
perseverance has served the Good Law Project well during Brexit - the Wightman case (discussed here)
was seen by some as a hopeless case without merit and yet they were fully
vindicated at the European Court of Justice. In a similar vein, the Miller (No 1) case (Miller v S. of S. for Exiting the EU [2017] UKSC 5])
also confounded some experts with its surprising inroads into the exercise of
royal prerogative.
For
the petitioners, the need for prerogative powers to be subject to oversight, be
it legislative or judicial, is absolutely fundamental to the proper functioning
of the modern United Kingdom, a state governed by an overriding adherence to
the rule of law (Teh Cheng Poh v Public
Prosecutor [1980] AC 458, per Lord Diplock at p 473, as discussed by Lord
Doherty at para. 6).
This
is invariably true and the UK courts are understandably somewhat wary of the
royal prerogative as a 'relic
of a past age' (as per Lord Reid in Burmah
Oil). As such, as I have argued in a
previous blog
...'the royal prerogative is a diminishing executive power, subject to ever
more control and supervision by the legislative wing of the state. The status
quo pertaining to the exercise of the royal prerogative is under attack on two
fronts: replacement of the amorphous executive power with a statutorily
defined, controlled and exercised power and judicial and democratic supervision
of the remaining executive powers of prerogative.'
Nevertheless,
it would be a mistake to simply assume that the judges' wariness of the
exercise of prerogative power and its potential to be abused will translate,
further up the court hierarchies in Scotland the rest of the UK, to a
willingness to intervene in such affairs. Rather, Joanna Cherry, the other 78
petitioners and the Remain Alliance may face an uphill battle in reversing the traditional
view of the royal prerogative espoused by Lord Doherty.
The GCHQ case was a watershed case, carving
out exemptions to the absolutist view that any use of the royal prerogative was
beyond the purview of the courts ((R
(Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs
[2016] UKSC 35) as discussed here.
However, the common law develops incrementally and carefully and it is still
the case in the second decade of the 21st Century that the UK courts show a
great deal of deference to the UK Executive and its prerogative powers. This
judicial reasoning is not hard to fathom. Prerogative powers are the engine of
Parliamentary democracy in the UK, even if they are anachronistic and
diminishing in scope and number and as such they are still given a surprising
degree of deference by the judiciary.
For
example, in Shergill v Khaira [2014]
UKSC 33, the UK Supreme Court opined that the courts would decline to
interfere with prerogative powers in the domestic plane when the issues relate
to the separation of powers and executive powers. Lord Reed, one of the
dissenters in the Miller
case, has some pronouncements that may provide a foretaste of the challenges
that face the petitioners in Cherry.
For
example, Lord Reed made much of the extant political accountability mechanisms
that are integral to the UK constitution. He stated, at para. 240 of Miller, that the 'controls over the
exercise of ministerial powers under the British constitution are not solely,
or even primarily, of a legal character'. He went on to warn that:
For a court to proceed on the basis that if a prerogative
power is capable of being exercised arbitrarily or perversely, it must
necessarily be subject to judicial control, is to base legal doctrine on an
assumption which is foreign to our constitutional traditions. It is important
for courts to understand that the legalisation of political issues is not
always constitutionally appropriate, and may be fraught with risk, not least for
the judiciary.
His
reason for judges exercising caution in this area is the well-established
principles of Executive accountability to Parliament and Parliament's
sovereignty, which includes Parliament's power to govern itself, free of
outside influence and interference. Indeed, he stated, at p. 249
It is wrong to see this as a simple choice between
Parliamentary sovereignty, exercised through legislation, and the
“untrammelled” exercise of the prerogative by the Executive. Parliamentary
sovereignty does not begin or end with the Tin Council principles. No less
fundamental to our constitution is the principle of Parliamentary
accountability. The Executive is accountable to Parliament for its exercise of
the prerogative, including its actions in international law. That account is
made through ordinary Parliamentary procedures. Subject to any specific
statutory restrictions (such as under the Constitutional Reform and Governance
Act 2010), they are a matter for Parliament alone. The courts may not inquire
into the methods by which Parliament exercises control over the Executive, nor
their adequacy."
Further,
Lord Reed then quoted Lord Mustill's view of the separation of powers doctrine.
Lord Mustill's view is that:
It is a feature of the peculiarly British conception of the
separation of powers that Parliament, the executive and the courts each have
their distinct and largely exclusive domain. Parliament has a legally
unchallengeable right to make whatever laws it thinks right. The executive
carries on the administration of the country in accordance with the powers
conferred on it by law. The courts interpret the laws, and see that they are
obeyed. This requires the courts on occasion to step into the territory which
belongs to the executive, not only to verify that the powers asserted accord
with the substantive law created by Parliament, but also, that the manner in
which they are exercised conforms with the standards of fairness which
Parliament must have intended. Concurrently with this judicial function Parliament has its own special means of
ensuring that the executive, in the exercise of delegated functions, performs
in a way which Parliament finds appropriate. Ideally, it is these latter
methods which should be used to check executive errors and excesses; for it is
the task of Parliament and the executive in tandem, not of the courts, to
govern the country …
These
views accord closely with those of Lord Doherty. His view was that political
not legal accountability is the proper approach and remedy for any alleged
wrongdoing of Prime Minister Johnson in advising the Queen to prorogue
Parliament. On such a view, Boris Johnson will be, in due course, held
accountable by his Parliamentary colleagues and by the electorate at the ballot
box.
In a
perverse way, the fact that the case failed may help the petitioners in their
bid to stop a No-Deal Brexit. The longer Boris Johnson continues with his
No-Deal plan, the more he will face political and reputational consequences of
his actions. The court case had one serious political consequence - the release
of documentation undermining the Prime Minister's assertions as to when the
decision to prorogue Parliament had been taken. This factor, more than the
arcane legal arguments over the justiciability or otherwise of exercises in
Royal Prerogative, may seal the fate of Boris Johnson.
The
reluctance of judges to interfere with executive power is a high barrier to a
successful outcome for the petitioners in Cherry.
However, on appeal, the Inner House of the Court of Session might be convinced
to go against the dissenting view of Lord Reed, one of the two Scottish judges
in the Miller case, however it is a
big ask, but not insurmountable. Alongside the ongoing Cherry case, south of the Scottish border, Gina Miller and and Sir
John Major will have their day in court this week as well. They have engaged
Lord Pannick QC to also seek a judicial
review of the decision to prorogue in the English High Court, starting on
Thursday the 6th of September. A day later, over in Belfast, Raymond Mccord, will
start his action
against prorogation, alleging that imposing a No-Deal Brexit on Northern
Ireland will breach the Good Friday Agreement.
These
three cases illustrate the strength of feeling against Boris Johnson's plans to
prorogue Parliament and ensure a No-Deal Brexit. However, given his political
defeats in the Commons this week, which mean laws attempting to stop No-Deal
Brexit can progress through Parliament and an imminent general election looks
to be ebbing away, the political arena seems to be a more fruitful area for
challenging the Prime Minister than through the courts of the three
jurisdictions of the UK.
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