Until recently, the historic right of the Crown to prorogue the UK parliament, thereby closing one session so that a new one can begin, was not something one would think controversial or an issue to be litigated.
Prorogation was a minor detail of our unwritten constitution, done in the name of the monarch — but in reality at the choice of the prime minister — to ensure a neat parliamentary separation between one legislative term and the next. And had you asked a public lawyer (those with an interest in the legal regulation of official power) whether a court would intervene to block such a prorogation, you would have received a shake of the head. The issue would not be justiciable, as it belonged in the realm of politics and not law. I myself would have said the chances were zero.
But all this has changed. The government’s abuse of prorogation, invoking it for a purpose for which it was never intended, is now the subject of serious legal claims in each of the three constituent jurisdictions of the UK: Scotland, Northern Ireland and the combined jurisdiction of England and Wales. The action at the High Court in London has even been joined by the former prime minister Sir John Major and is being led by David Pannick, who prevailed in January 2017 in the Gina Miller case which obliged the government to obtain parliamentary approval for the Article 50 notification.
And there has now been an important academic intervention which suggests these challenges could succeed. Paul Craig, professor of English law at Oxford, is probably the UK’s leading authority on constitutional law. In a brief blog post, he has set out a powerful (and, in the view of many lawyers, persuasive) case for why the courts can and should set aside the prorogation.
Prof Craig refers to several significant constitutional law cases — one from 1610, one from 1920 and two (HS2 and Miller) from recent years. Taken together, he argues, these cases show that the courts have jurisdiction that enables them to ensure parliament can fulfil its constitutional role in the event of executive assault. One passage of his post is especially strong and worth quoting at length.
“The sovereignty of parliament is the foundational principle underlying the unwritten UK constitution. This sovereignty resides with parliament, not with the executive . . . The political discussion of prorogation by the present government was predicated on the assumption that it could be legitimate for the prime minister to make use of this power intentionally to bypass what was felt to be a recalcitrant parliament. This is not and cannot be constitutionally correct. To subscribe to such reasoning per se diminishes parliamentary sovereignty as a foundational principle, and transforms the UK constitutional order such that the cards become stacked in the executive’s favour.”
Prof Craig’s analysis is based on there not being a direct precedent for such a judicial intervention. So, in the absence of a direct precedent, the applicable principles have to be drawn from other cases in which the courts have had to examine the executive’s attempts to circumvent and frustrate parliament.
He also destroys the justification the government has used in claiming legitimacy for this prorogation. Prof Craig, in a subtle but devastating section with the innocent-seeming title “Fact and Causation”, shows that prorogation actually undermines preparation for a Queen’s Speech in the current situation. Therefore that cannot be a sound defence for the use of the device.
This is heady stuff. But it does not mean that the various legal claims against prorogation will succeed. On balance, I suspect they probably will not, not least because the appropriate remedy is hard to identify. The monarch’s decision itself is probably not susceptible to judicial review and attacking the “advice” given to the Queen by the Privy Council is legally tricky.
But the claims now have force, and courts may take them so seriously as to make government lawyers uncomfortable. The cases may be fast-tracked to the Supreme Court, and it would be a confident judge who went against the combined intellectual force of Prof Craig’s critique and Lord Pannick’s advocacy. What could result are reasoned critical judgments which, reluctantly, do not grant a remedy on this occasion. And a robust Supreme Court may fashion a remedy that works.
Boris Johnson’s government is pushing the UK’s uncodified constitution to its limits, if not beyond. Conventions are being flouted brazenly. This, as with the many other constitutional wrongs committed by this government, will have lasting consequences for the UK polity.
But the government cannot take it for granted that the courts will nod along with this vandalism. To adapt a famous constitutional saying, the arrogance of the executive has increased, is increasing, and ought to be diminished.
The writer is a contributing editor of the Financial Times