Who takes back control? Parliamentary prorogation in the courts

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. 

Photo credit: Telegraph

Barnard & Peers: chapter 27 

Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk

As the Brexit clock ticks down, and the diametrically opposed objectives of Theresa May's negotiating imperatives become ever more exposed, the clamour to clarify the processes and procedures surrounding Brexit intensifies.

At the tail end of 2017, a group of seven Scottish politicians, from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action in the Scottish Court of Session, essentially seeking an answer to the simple question 'Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?' The group is headed by Andy Wightman MSP, and the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie were joined in the case in May 2018.  The case was crowdfunded through the Good Law Project, headed by Jolyon Maugham, who is also a petitioner.

The pursuers are keen to know the answer to this question since they believe that the route to Brexit is not unidirectional and binary. For the pursuers, representing constituents in a nation of the United Kingdom which voted overwhelmingly to remain in the EU referendum, Brexit does not have to result in 'Deal or No Deal'. Rather, there may be a third way: A People's Vote that includes the option to Remain in the European Union.

In order for a Scottish court to make any pronouncement on this legal question, the court would have to send a preliminary reference request to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union since Article 50 TEU is a provision of EU law and by definition, only the CJEU can offer a binding interpretation of EU law for the entire EU.

In February 2018, the pursuer's application for judicial review (subject, in Scotland, to the Court of Session Act 1988, s. 27B) was refused by Lord Doherty in the Outer House of the Court of Session, on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since both the UK Parliament and Her Majesty's Government had no yearning to resile from the path to Brexit (paras 10-14 of the judgment).  In particular, Lord Doherty opined that the pursuer's action had no reasonable prospect of success (para 8; see s 27B(2)(b) of the Act) since the matter was not a justiciable matter suitable for judicial determination.

The pursuers appealed the decision to refuse the judicial review and accompanying CJEU reference to a bench of three Scottish judges in the Inner House of the Court of Session by way of a reclaiming motion (which is the process whereby a decision of the Outer House of the Court of Session can be appealed). In their judgment, the panel of three judges heavily criticised the terms of the original judicial review pleadings as being overly complicated, unclear and potentially confusing and fell way below the standards expected for a judicial review application. (The clarity and structure expected in a judicial review claim were set out by Lord Hope in Somerville v The Scottish Ministers [2007] UKHL 44, at paras. 39, 46, 52 and 65. See also Lord Rodger's dicta at para. 88) Nevertheless, given the constitutional importance of the question raised, their lordships were minded to forgive such careless drafting and allow the appeal and remit the case to the Outer House for judgment (para 12). In the opinion of their lordships, the case was neither academic nor hypothetical given that the UK Government could be asked to revoke the Article 50 TEU notification at the request of the UK Parliament (para 30). But, even where the case were to proceed, the pursuers would need time to revisit and rephrase their averments (para 34).

Following a much amended set of pleadings, Lord Boyd of Duncansby heard the application for judicial review in June 2018. Lord Boyd refused the application and thus with it any chance of a preliminary reference request being submitted to the European Court of Justice (para 75). His Lordship's opinion hinged on the hypothetical and speculative nature of the claim. At the time of the judgment, the EU (Withdrawal) Act 2018 was still a bill progressing through Parliament and thus a definitive date for UK withdrawal from the European Union had not yet been set out as a matter of UK law. Rather, the date of exit of the UK was only set out as a matter of EU law as per the terms of Article 50(3) TEU, that is the date of entry into force of the withdrawal agreement or two years from the date of Article 50 notification itself.

As is well known, the European Court of Justice does not entertain national courts submitting hypothetical questions concerning EU law (see, for instance, Foglia v Novello). The preliminary ruling procedure is a practical cooperative link (for example, Case C‑470/12 Pohotovost) between the national courts of the member States and the Court of Justice of the EU, designed to help the national courts decide cases in which the interpretation of EU law is integral to the resolution of the dispute before the national court. (In the Scottish context, see the case of Scotch Whisky Association v Lord Advocate, discussed here) Having reviewed the authorities in this matter, Lord Boyd declared that the case was a hypothetical one which did not need to be answered in order for him to give judgment. He also stated that this position was synonymous with the position adopted by the Scottish courts as to hypothetical cases before them (for example, see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).

The petitioners, in their case, also objected to the stated position of UK Ministers that outlines that Article 50 TEU is not unilaterally revocable. Indeed, in the earlier seminal constitutional case of Miller,  the question of unilateral revocability of Article 50 TEU was assumed by both parties to be answered in the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth discussion as to the legal appropriateness of the stated position of UK Ministers on the revocability of Article 50 TEU on the basis that were he to do so, this would be a usurpation of Parliamentary privilege and contrary to Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers then immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review action was not competent because the order sought was not practical. On the contrary, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process (paras 22-23 of the judgment). More significantly, the court also found that the case was no longer hypothetical since in between the date of the judgment by Lord Boyd and the present case, the EU (Withdrawal) Act 2018 had now passed onto the statute books and certain provisions of that Act had come into force.

In particular, section 13 of the Act – the “meaningful vote” section – provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty's Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve. In the event that approval has not been forthcoming, the Government must inform the Parliament of how it intends to proceed within 21 days of the decision not to approve. Further, in the period up to the 21st of January 2019, if the Government again considers that no deal can be agreed then Parliament must be told of how the Government intends to proceed and again after the 21st of January 2019, the Government must inform Parliament of how it intends to proceed.

In all of these scenarios, there is a presupposition that both the Brexit clock inexorably continues to countdown to the 29th of March 2019 and that the choice for the UK Parliament is stark: Deal or No Deal. The Scottish politicians at the heart of this case contended that there is an alternative to this dystopian vision: The UK population can be given a People's Vote on the terms of the deal, including an option to Remain in the EU. However, this option will only be realisable if the UK's automatic exit from the EU on the 29th of March 2019 can be postponed and the only ways to disapply the automatic departure of the UK is by the UK either securing the agreement of the 27 other Member States to extend the Article 50 TEU time period or by unilateral rescission of the Article 50 TEU notification.  If neither of these options can be secured, then clearly, given that it is November 2018, there will be insufficient time to organise the necessary preparations for what would be in effect a second referendum on UK membership of the EU.

In the reclaiming motion, the Scottish judges approved the text of the question that they wished to send to the CJEU (see the Appendix to the judgment). The question is thus:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”

Given that time is of the utmost essence in this case, the Scottish court expressly requested use of the expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) before the Luxembourg court. At present, the average time taken for the CJEU to deliver a ruling under the Article 267 TFEU procedure is 15.7 months (page 114 of the 2017 Annual Report of the CJEU) . Such a timeframe would, ironically, render the judgment academic since the UK is heading towards Brexit in just over four months.  However, even with the expedited procedure, the Court will in all likelihood take between 3 and 5 months to render a judgment. Even this timeframe is problematic given that, at the time of writing, the UK and the EU have agreed a provisional withdrawal agreement on the 13th of November 2018.

In order for the issue of the revocability of Article 50 TEU to have practical import, UK politicians would need to know the answer to this question before they are asked to perform their constitutional task of participating in a meaningful vote on the terms of the withdrawal agreement. Given that there is an agreement in principle in existence between the UK and EU, it is likely that UK MPs will be asked to vote on the terms of the deal before the Christmas parliamentary recess, a mere six weeks away.

The window of opportunity for the CJEU is exceedingly tight. It received the Scottish reference on the 3rd of October 2018. Sixteen days later, the President of the CJEU confirmed that, given the constitutional seriousness of the case, the case would be expedited. It will be heard on the 27th of November 2018.

The UK Government has formally objected to this preliminary ruling request on a number of fronts. Firstly, the UK Government has published a policy paper to the effect that the question from the Scottish court is still a hypothetical one and that the CJEU has overstepped its judicial role in effectively acquiescing in this subterfuge. These arguments can be dealt with cursorily. As a cooperative horizontal judicial process between national courts and the CJEU, it is for the national court alone to determine the appropriateness of sending an EU law question to the CJEU for adjudication. As such, it is a subjective task for the judges seised of the case before them to assess whether they require a resolution to an EU law question in order to enable them to make a decision (See for example, Case 126/80 Salonia).  Secondly, if that is the case, then the answer from the CJEU is not merely an advisory one, rather it is a sine qua non of the national judges preforming their constructive and practical constitutional role.

The UK Government's second approach to taking exception to this Scottish court reference was to challenge the process of requesting assistance from the CJEU itself. The Advocate General for Scotland alleged that the proper course for this issue should have been for the Court of Session to have appealed the case up to the UK's Supreme Court for adjudication rather than sending the case to Luxembourg. The Inner House of the Court of Session, on the 8th of November 2018 refused leave to appeal to the Supreme Court. The UK Government has not given up and has more recently submitted legal papers to try to get the Supreme Court to order cancellation of the reference request from the Court of Session. The Supreme Court has confirmed receipt of these legal papers and has assigned the case to Lady Hale, Lord Reed and Lord Hodge. It is to be expected that a ruling will be forthcoming from the Supreme Court given the Supreme Court's statement itself that it is aware of the urgency of the matter and the fact that the CJEU will hear the Wightman case on the 27th of November 2018.

Regardless of the relative merits or demerits of such an approach by the UK Government, these legal actions evidence a worryingly poor grasp of EU law principles. It is a well-established doctrine of EU law that the Article 267 TFEU Preliminary Ruling Procedure is not an appeal mechanism and as such national courts are free to submit requests to the Luxembourg court, free of any interference from higher national courts (See for example Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member States are of course free to issue guidelines to the lower courts on when references should be sent to the CJEU (See for example the dicta of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), and the CJEU itself issues guidelines on how to refer EU law questions to it, however, these guidelines cannot fetter the wide discretion afforded to national courts to make their own decision on the appropriateness of an Article 267 TFEU reference.  The lack of knowledge of basic underpinnings of EU law at the heart of the UK Government is either negligence writ large or an unashamed attempt to circumvent well established judicial lines of communication between national courts and the CJEU. Either way, it diminishes the reputation of UK Plc. and conversely enhances the standing and reputation of the Scottish courts and politicians.

Nevertheless, inexorably the Brexit clock lurches forward and it remains to be seen whether Scotland can Scotch Brexit for the evident utility of the entire United Kingdom.

*Update (23 Nov 2018): on 20 November 2018 the UK Supreme Court refused to give leave to appeal against the decision to refer, on the grounds that the Court of Session judgment was not final. The CJEU will therefore hold a hearing in this case as planned on 27 November. Also, you can find the full text of the written legal arguments of Mr Wightman and others before the CJEU here. 

Barnard & Peers: chapter 27

Photo credit: Scotcourts.gov.uk