Bad for both democracy and the law?
By PROF RICHARD EKINS
PUBLISHED: 00:07, 25 September 2019 | UPDATED: 00:23, 25 September 2019
Eleven Supreme Court judges overturned centuries of established law yesterday in ruling in favour of Gina Miller, Sir John Major and Joanna Cherry.
The Government has always had the power to prorogue Parliament and it has never been for the courts to control how this power is exercised. That has always been a job for Parliament and, in the end, the people.
The Court’s judgement is final and the Government has to accept this. But the Court’s reasons for its judgement are not convincing.
Not so long ago, it would have been unthinkable for the courts to consider whether the power to prorogue Parliament had been misused. They would simply have said that this was not a legal question for them to decide.
And that is exactly what three of the most senior judges in England and Wales said when Gina Miller and John Major first went to the High Court earlier this month.
Courts in Australia, Canada and other countries that have a Westminster-style democracy would likely have come to the same conclusion.
The Supreme Court judges say that the question before them arises in exceptional circumstances and is a ‘one-off’. This should set alarm bells ringing. It reads like an admission that its intervention is a legally unprecedented response to what they take to be a constitutional crisis.
The rest of the judgement is written to suggest that the Court is just applying ordinary law in an unusual context. The fact that all eleven judges signed up to this judgement might seem to reinforce this impression.
But look a bit closer and it is clear that the Court has broken new ground. It overturned the High Court’s careful, forceful judgement. And eleven can be wrong as easily as one, especially if unanimity is achieved by papering over differences in order to show a common front.
In any case, the judgement of any court should stand and fall on its reasons. And the Supreme Court’s judgement is a radical assertion of judicial power over the inner workings of our democracy.
The Supreme Court says that it is simply upholding the limits of the government’s power to prorogue Parliament, a power which it says cannot be used to prevent Parliament from carrying out its function. But controversy about the power’s use or misuse should be fought out in the political arena.
What the Court has done is to assert that it is for its judges alone to decide what is reasonable.
The UK has a political constitution. Many of the most important controls on the Government’s powers — including foreign policy and waging war — are political rather than legal.
In my view, the Supreme Court has swallowed the line that the political controls have broken down and that without judicial intervention all will be lost. What the Court should have done is to stick to the established law and refused to intervene.
But what about the principles of parliamentary sovereignty and accountability? These principles are not grounds for courts to make the law up as they go along.
They have never been a reason for courts to intervene in relation to decisions about the timing of sessions of Parliament and they are not a good reason now.
Yet this is what the Supreme Court has made of them. For all its apparent concern for ancient principle, the Court’s action is an unjustified novelty, which is driven by its perception that these are exceptional circumstances. The temptation for the Supreme Court, which Gina Miller and Sir John Major encouraged, was to think of itself as defending the rights of Parliament against the Crown — which, on the advice of the Government, prorogued Parliament.
This was always a mistake. Parliament needed no defence. The House of Commons was always free to withdraw confidence in the Government, through a motion of no confidence, or to enable an early election. It was not powerless and the courts should not have intervened.
In any case, Article 9 of the Bill of Rights 1689 protects the rights of Parliament by explicitly preventing courts from questioning proceedings of Parliament.
The Court attempts to dodge this by asserting that prorogation is not a proceeding of Parliament, but is instead something done to Parliament by an outside body. But this is wholly unconvincing. The Queen acts within Parliament, and it is she who has the power of prorogation.
Yesterday’s judgement is a milestone in a wider trend, in which those who lose out in the political process attempt to secure political advantage in the courts.
It is part and parcel of the rise of the courts in our constitution, which is bad for democracy, bad for the rule of law and bad for judges themselves — many of whom recognise they should not be deciding political questions.
Like the first Gina Miller case, yesterday’s judgement did not involve human rights law or European law. The problem is a wider loss of judicial confidence in the political process, a willingness to overturn settled law in ‘exceptional circumstances’ in order to right what the Court thinks is a wrong. But the duty of the courts is to follow the law, not to remake it.
The problem is clearly not going to get better anytime soon. The solution is to remind judges about the proper limits of judicial power — and the place to start might be for the next Parliament to restate the Bill of Rights’s prohibition on judicial interference in parliamentary proceedings, and to strip the Court of any jurisdiction to challenge prorogation.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law, University of Oxford.