Alan S.
Reid, Senior Lecturer in Law, Sheffield Hallam University. The author
welcomes comments on the blog at a.s.reid@shu.ac.uk.
The A-Z of Scots
Law: From Avizandum to the Zany Antics of Boris Johnson
The recent, zany
antics of Prime Minister Boris Johnson are being subject to intense
interrogation by the Scottish legal system. The case of Cherry
has seen the decision to prorogue the UK Parliament declared unlawful and the
Prime Minister’s reported defiance
to refuse to comply with the specific terms of the European Union (Withdrawal)
(No.2) Act
2019 will be litigated
upon in the Scottish courts next week. This new statute is designed to
avoid a No-Deal Brexit on Halloween. It requires the Prime Minister to send a
letter to the European Council requesting an extension to the Article 50 TEU
negotiating period by the 19th of October 2019 if there is no deal in place (or
no vote by parliament approving a no deal outcome) between the UK and EU by
that date.
These developments
have exposed non-Scots lawyers and the general public in the UK to a whole new
lexicon. In the Cherry case, they
were treated to the terms ‘Avizandum’ and ‘stymie’ and in the prospective case
forcing Boris Johnson to comply with the 2019 law, the general populace
encountered the Latin term ‘nobile officium’.
The term
‘Avizandum’ is a Scots law term of
art indicating that the court will take time to consider its judgment and
deliver its reasoning at a later date. The word ‘stymie’ has been used in the
case of Cherry to refer to the fact
that proroguing Parliament will frustrate Parliament’s ability to scrutinise
the work of the Executive while it is suspended. The etymology of ‘stymie’ is Scottish
and refers to someone who can’t see very well and it was adopted as a golfing
term to refer to a ball that prevents their opponent from having a clear shot
at the hole. Thus, it is an apposite term for the actions of a Prime Minister
attempting to deflect Parliament’s attention away from a No-Deal Brexit.
The ‘nobile
officium’ is an ancient
power of the supreme court of Scotland (the Court of Session) to offer an
equitable remedy for pursuers when there is a perceived deficiency in the law.
This blog will
discuss the significance of the unanimous decision of the Scottish judges in Cherry to declare the Prime Minister’s
prorogation of Parliament unlawful, compare and contrast this with the English
High Court’s decision to refuse to rule on the matter in Miller 2 and the potential ramifications of these cases for the
Supreme Court hearing on Tuesday the 17th of September 2019. (For an overview
of the prorogation case law with links, see here).
The original Cherry
case (discussed here)
was the first legal test of Boris Johnson’s decision to prorogue Parliament. At
first instance, Lord Doherty roundly rejected the petitioner's pleas, holding
that the decision to prorogue was an exercise of prerogative power (ie
non-statutory) by the executive (the Government) that was non-justiciable (ie not
amenable to review by a court), since it involved matters of high policy and
political judgment. Thus, such matters were best left to be resolved in the
political arena, primarily by the Prime Minister being held accountable for his
actions by his equals in Parliament and subsequently by the electorate at the
ballot box.
South of the
border, Gina Miller, Shami Chakrabarti and Sir John Major instigated a similar claim
against prorogation in the English High Court. At this level, both courts were
at one on this point: the decision of the Prime Minister to prorogue was a
classic exercise of prerogative power that was non-justiciable, since it
involved matters of high policy and political judgment (see the Miller justifications at paras. 38, 42
and 60, the dicta of Lord Doherty in Cherry
1 at paras. 25 and 26 and the Scottish case law of MacCormcick v Lord Advocate 1953 SC 390, Gibson v Lord Advocate 1975 SC 136 and Lord Gray’s Motion 2000 SC
(HL) 46). In their view, there were no legal standards from which to judge the
legitimacy of the decision to prorogue (para. 51). The justifications for such
an approach are plentiful and eminent. The long line of judicial precedent confirming
such an approach stretch from de Freitas v
Benny ([1976] AC 239), R v Secretary
of State for Foreign and Commonwealth Affairs, ex parte Everett [1975] 1 QB
811 the GCHQ case through to A v
Secretary of State for the Home Department [2005]
1 AC 68 (aka the Belmarsh case) and the case of Shergill v Khaira [2014]
UKSC 33. In the Belmarsh case, Lord
Bingham famously declared that:
“The more purely political (in a broad or narrow sense) a question
is, the more appropriate it will be for political resolution and the less
likely it is to be an appropriate matter for judicial decision. The smaller,
therefore, will be the potential role of the court. It is the function of
political and not judicial bodies to resolve political questions.”
Further, as I
discussed last week,
the dissenting judges in Miller 1
offered a stark warning to judges willing to embark on evaluations of matters
involving high policy. Lord Reed expressed the view that:
“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.”
The English High
Court heeded such warnings and tersely stated in the first paragraph of its judgment
in Miller 2 that:
“It is not a matter for the courts.”
The
non-justiciability argument appeared to have won the day north and south of the
border. And further, to the west, beyond the Irish Sea, the High Court of
Northern Ireland in Belfast decided not to rule on the prorogation issue at
all, in a case brought by Raymond McCord.
Further, the
English High Court also considered at the same time that, even if the contested
order to prorogue had been reviewable, a number of legitimate and plausible
reasons had been put forward by the Prime Minister that supplied sufficient
reasoning for the prorogation (para. 51). Primarily, it is entirely normal and
expected that a new Prime Minister would desire a Queen’s Speech in order to
give legal effect to their policy priorities. Further, in the present instance,
even with prorogation, there would still be time to debate and scrutinise
Britain’s withdrawal from the EU; there would already be reduced Parliamentary
time to scrutinize, given that the prorogation would fall in the middle of the
traditional party conference season when
Parliament is recessed; and finally, the previous Parliamentary session had
been one of the longest in living memory.
In the face of
such insurmountable odds, it appeared that all was lost for the Remain
Alliance. The activities of the Prime Minister were beyond legal reproach, even
if not beyond political or ethical reproach. And yet...
The original
decision of Lord Doherty in the Outer House of the Court of Session in Scotland
was immediately appealed against. On Wednesday the 11th of September 2019, the
three judges of the Inner House dropped their bombshell unanimous decision –
the decision of the Prime Minister to prorogue Parliament was justiciable and
upon subsequent forensic examination it had been found wanting.
The Scottish
judges did not hold back, using rather forceful language to condemn the events
laid before them. Lord Brodie found that the decision to prorogue was an
‘egregious case’ of improper behaviour (para. 91) falling well below the
generally accepted standards of behaviour expected of public authorities and
figures.
At first glance,
the remarkable decision of the Scottish Supreme Court flies in the face of
received legal orthodoxy. Proroguing Parliament is a classically political act,
thus protected from legal challenge. So how do lawyers, north and south, square
this circle?
The answer comes
down to one of approach and the classification of the question that came before
the courts in the three jurisdictions of the UK. As I discussed earlier,
the question of the justiciability of royal prerogative powers is no longer a
binary one, ever since the GCHQ case. Now, the test for justiciability rests on
the nature of the prerogative power in question. The more legalistic in nature
the power is, the easier it is for the courts to assume jurisdiction.
Conversely, the more political or non-legal the power, the harder it is for the
court to assume jurisdiction over that decision-making power. However, this
sliding scale argument just outlined, does not help much in explaining the
diametrically opposed judgments north and south of the border. Indeed, on this
view, the English and Scottish courts should have been at one.
Legal
clarification to this confusing situation may come, ironically some may say,
from eminent Sassenach
(used here in a non-pejorative sense) legal jurists, Professor Paul Craig and
Professor Mark Elliott. Both Professor Craig and Elliott have cogently and
eruditely explained the constitutional dilemmas borne out of Boris Johnson’s
premiership. From their perspective, for the courts to absolve themselves from adjudicating
upon a matter of such momentous proportions would be a gross dereliction of
judicial duty (See Professor Craig’s view on this in his blog Prorogation:
Three Assumptions of the 9th of September). The dangers to the UK
constitution posed by the behaviour of Boris Johnson both necessitate and
justify judicial involvement. This situation is such a singular affront to the
democratic principles of the UK’s unwritten constitution that a judicial response
is both right and necessary (See Professor Craig’s blog Prorogation:
Constitutional Principle and Law, Fact and Causation, of the 31st of
August).
To provide for
no legal redress in this pivotal moment would create a legal vacuum and
indirectly give succour and implicit legitimation to the decision of the Prime
Minister (see the discussion of these matters by Alan Greene in his blog Miller 2, Non-justiciability and the Danger
of Legal Black Holes, available here).
For Professor Elliott, the sweeping, blanket refusal of the English High Court
to entertain any possible review of the decision to prorogue is legally suspect
on two main grounds. First, because the refusal to adjudicate goes against the
liberalising tendency of the extant judicial precedence on non-justiciability,
which is incrementally lessening the scope and reach of the non-justiciability
barrier and, secondly, and in my opinion more forcefully, the judgment in Miller 2 misconstrued the legal question
before it (see Professor Elliott’s blog Prorogation and justiciability: Some
thoughts ahead of the Cherry/Miller (No. 2) case, available here).
Thus, the
argument for intervention can be justified by looking at the questions before
the UK courts from a slightly different perspective. The argument runs that the
English High Court focussed, incorrectly, on the evaluation of the exercise of
the discretionary power to prorogue. From this perspective, the English High
Court fixated on the practical aspects of the decision to prorogue, asking
itself questions about the justifications offered for the prorogation and the
reasonableness of the length of time of the prorogation. Therefore, the purpose of the judicial review
appears to be one of substitution, that is the court is putting itself in the
shoes of the Prime Minister and declaring whether it is reasonable for the
Prime Minister to have asked for such a long period of prorogation. If that is
so, then traditional legal orthodoxy kicks in: courts are not there to be a
substitute for a bad decision maker, particularly when that decision is not made
according to legal principles or considerations but rather, is a decision based
on pure politics. Such decisions, rightly, cannot and should not be subject to
supervision and substitution by the courts. The Inner House of the Court of
Session chose another path for adjudication.
The Inner House,
having reviewed the legal authorities, considered that the prerogative power to
prorogue Parliament was justiciable (para. 31). The Court of Session approached
the question from first principles of the UK constitution. The Court of Session
asked a different question to that of the English High Court, namely does the
legal power exist and if so, what are its boundaries? Questions about the scope
of legal powers are classic judicial review questions that need resolution.
Indeed, the fundamental grundnorm of the UK unwritten constitution is
observance of the rule of law.
Lord Drummond
Young, at para. 102, summed up this fundamental truth concisely when he said:
“The rule of law requires that any act of the executive, or any
other public institution, must be liable to judicial scrutiny to ensure that it
is within the scope of the legal power under which it is exercised.”
In applying this
principle to the present case, the Scottish court was being asked if the exercise
of the prerogative power to prorogue Parliament was being used for a purpose
that was objectively outwith its scope (para. 104). This question could be
answered by the Scottish court since the UK case-law evidenced a great deal of
judicial flexibility in responding to these types of questions (see the case of
Pham
v Home Secretary [2015] 1 WLR 1591). In answer to this question, given
the voluminous redacted information submitted to the court by Her Majesty’s
Government, the answer must be yes: the Prime Minister had prorogued Parliament
for an improper purpose, namely to stymie Parliamentary debate, oversight and
scrutiny of the UK’s withdrawal from the European Union.
Regardless of
their view on the justiciability and merits or otherwise of the case, the
seriousness of the case, according to the Scottish judges, absolutely required
a robust judicial response in any case. The actions of the Prime Minister had
been an egregious case where there had been a clear failure to comply with
generally accepted standards of behaviour of a public authority (see para. 91).
The exceptional seriousness of the case would require the court to act.
It can be argued
that the Scottish judges were not engaged in usurping power from Parliament. On
the contrary, the Scottish judges, rather than emasculating Parliament, were,
by delivering judgment, empowering Parliament.
The finding of
the Inner House means that the decision to prorogue Parliament was illegal and
as such the Order in Council is of no legal effect, that is the decision is
void ab initio. However, given the constitutional significance of the case and
its brethren cases in Belfast and London, the Lord President declined to
enforce the judgment at once, given that all these judgments were the subject
of an appeal to the Supreme Court of the UK. If the Supreme Court were to
ultimately follow the dicta of the Inner House, then the judgment in Cherry 2 would be fully enforced and
applied at that date.
The outcome of
the conjoined appeals at the Supreme Court of the UK on Tuesday the 17th of
September is far from certain. The Scottish judgment is a constitutional first:
the first time a serving Prime Minister has been found guilty of acting
illegally in relation to the proroguing of Parliament.
What is certain is that the 11 justices of the Supreme Court will once again make UK constitutional history after the hearing on Tuesday week.
Barnard &
Peers: chapter 27
Photo credit:
parliament.uk
