When Boris Johnson prorogued parliament it was a deliberately provocative and political use of the executive’s constitutional powers. That provocation has done its work. It has elicited an equally aggressive and political use of the judicial branch’s constitutional powers. The practical political effects of the Supreme Court’s judgment in the second Miller case are likely to be limited and equivocal. However, if we analyse the judgment, we see that its deep Remainer commitments provide resources for the political class to maintain the post-democratic constitutional essence of an EU member-state even if Britain leaves the EU.
In its judgment, the Supreme Court denies that it takes any view on the question of whether the UK should leave the EU (para 57), and it notes carefully that the result of the referendum ‘has been treated as politically and democratically binding’ (para 7). However the content of the court’s ruling relies entirely on Remain political judgments and assumptions that reflect the characteristic constitutional outlook of EU member-states. Firstly, in the most immediate sense, the judges have exercised their power on the basis of a partisan Remainer political judgment about the prime minister’s political decision to prorogue parliament. Secondly the judgment is a pro-Remain decision in the deeper sense that its assumptions about parliamentary sovereignty are very much those that belong in a member-state of the EU rather than in a sovereign nation state. Finally the Supreme Court has made this decision in a bid to complete a significant transformation of the UK’s constitution that has been developing incrementally over the decades of EU membership. Let’s look at each aspect in turn.
The Supreme Court claims that all it is doing is ruling that the PM did something unlawful when he advised the Queen to prorogue parliament. The judges’ reason for ruling that the advice was unlawful is that the prorogation ‘has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’ (para 50), and that this is a violation of the constitutional principle of parliamentary sovereignty. However the judges recognise that ‘the decision whether to advise the monarch to prorogue Parliament falls within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment’, and that as a result the courts should act ‘with a corresponding degree of caution’ (para 51). In a political matter such as this, the courts will only intervene ‘if the effect is sufficiently serious to justify such an exceptional course’ (para 50), and if no adequate reason is given by the government for its actions (para 51).
For the Supreme Court the prorogation prevents parliament from meeting even in committees for five of the eight weeks prior to 31 October when a fundamental change in the UK’s constitution is scheduled to occur. Therefore, it ruled that the prorogation did ‘of course’ frustrate the ability of parliament to supervise the executive (para 56). Indeed the court describes this as having ‘an extreme effect upon the fundamentals of our democracy’ (para 58). Since, in the judges’ view, the government offered no adequate reason for this, the court intervened and nullified the prorogation. This assessment is, to put it politely, extremely formal and one-sided, to the point of being economical with the truth.
Parliament in fact met after the advice to prorogue but before the prorogation was carried out. As the English High Court noted when it rejected Miller’s claims, parliament passed the European Union (Withdrawal) (No 2) Act 2019, instructing the PM to request a delay to leaving the EU if no agreement was reached, and it did so by defeating the government repeatedly in parliamentary votes. Given the Remain majority over the government, parliament could also have mandated the PM to advise the Queen to recall parliament the day after the prorogation began, entirely negating its effect. Indeed parliament could have mandated the government in the event of a vote of no confidence being passed to hold a general election by a certain specified date, and the opposition could then have called and won such a vote of no confidence. That would have held the government to the most democratic form of accountability that the constitution knows.
Parliamentary supervision of the executive was not prevented by the PM’s advice to the Queen to prorogue. (1) Parliament had an opportunity to negate the political effects of the prorogation, which it in fact acted on to a limited extent. And it could have gone much further than it did, but for whatever reason omitted to do so. The Supreme Court takes no account of any of this.
In this context, the Supreme Court’s judgment that the advice to prorogue parliament had ‘an extreme effect upon the fundamentals of our democracy’ is plainly partisan. Most Remainers will indeed see things in the same way as the court, notwithstanding the opportunities that were in fact taken by parliament to limit its impact and other measures that could have negated it entirely but were not taken. But very few Leavers see it that way. Leavers see the extreme undermining of democracy arising not from the decision to prorogue but from the actions that parliament took both before and after it. The Remain majority in parliament, having long undermined executive efforts to negotiate a workable deal with the EU by refusing to countenance a no-deal departure, moved against the executive in September to prevent departure from the EU on 31 October. MPs then twice prevented the government from giving the electorate the opportunity to determine who was right. Leavers regard these actions as a plain defiance of the mandates on which both the government and main opposition party was elected. Both main parties stood on manifestos promising to respect the majority vote in the referendum. For Leavers (and many Remain democrats who believe the referendum result should be respected), it is MPs defiance of their mandates that is having an extremely undermining effect on the fundamentals of our democracy.
Underlying the clash between the different political interpretations of recent events is a difference of political ideas about democracy. The executive claims that democracy depends on government executing the key promises on which both it and, in this case, the main opposition party were elected because in a system of political parties, this has long been fundamental to parliament’s democratic authority. Remain MPs insist on their personal rights as elected representatives to do what they think best, regardless of their promises to the electorate at the time they were elected. The Supreme Court rejects without argument the idea that the government itself has any democratic authority arising from its MPs having won the election on its manifesto (see para 55). The Court simply assumes the political theory and judgment of the Remain MPs, and dresses it up in the language of constitutional law. (2)
In other words the Supreme Court’s assessment of the effect of the prorogation is purely political. There is no legal standard by which the truth of the court’s claim of an ‘extreme effect on the fundamentals of our democracy’ can be judged, and none is provided by the court. It all comes down to political interpretation of political events.
By taking no account of the actual opportunities that parliament retained to hold the government to account despite the decision to prorogue, the court makes a move that is characteristic of the underlying approach to legislative sovereignty in EU member states. It does not take the national legislature very seriously. The court does not have to take the legislature very seriously because the legislature does not take its own legislative supremacy very seriously. Parliamentary sovereignty was not defeated by Johnson’s manouevre. Parliament omitted to exercise its sovereignty to the extent that was open to it. Following parliament’s decision the Supreme Court then stepped in and exercised that sovereignty instead of parliament. With Orwellian irony the court is exercising powers that parliament decided not to and doing so in the name of parliamentary sovereignty.
Remain MPs celebrated this assumption of their responsibilities by a legal technocracy as a victory for parliament. This is a striking display of the decadence and irresponsibility of our current political class. In the name of parliamentary sovereignty, the Supreme Court and its parliamentary cheerleaders have undermined that sovereignty. This decadent process represents the constitutional structure of EU member-states in a nutshell.
EU member-states are legally sovereign nation states in which elected legislatures voluntarily defer to unelected bureaucrats, technical experts (including legal experts known as judges) and secretive forums of international diplomacy (known as councils of ministers). What is decided in the EU institutions automatically becomes domestic law. Though member-states retain formal legal sovereignty, they dissolve the political sovereignty of the nation into these technocratic processes and dilute the ultimate political authority of the people. Although it declares itself neutral on the question of EU membership, the Miller judgment reflects the deep commitment of the judicial branch to the post-democratic substance of the EU’s constitutional order.
The Supreme Court has, of course, taken sides in the political struggle over Brexit, despite its protestations. However, that is not the most significant aspect of its decision. It has deployed its political judgment in order to stake its claim to be a constitutional court with the power to control the relation between the other branches of government. By substituting itself for parliament, by substituting ‘law’ for politics in the constitution at a vital moment in the nation’s political life, the Supreme Court is claiming a constitutional authority to rival that of parliament. A constitutional court is not something that Britain has traditionally included in its constitutional arrangements. However decades of EU membership (combined with the Human Rights Act) have seen parliament quietly, though not completely, cede a power of constitutional review to the Supreme Court. Now that body has taken its opportunity to establish itself more fully as such a court, relying apparently on the authority of the common law (see para 49) in the way that the Court of Justice of the EU has the final interpretive power over the EU treaties. If it survives, the Court’s newfound status will continue even if the UK formally leaves the EU.
The decision to prorogue was a desperate and dubious manoeuvre that reflects the depth of the crisis in representative politics. It was an effort by a weak executive to strengthen its hand by eliciting something like the conflict that it has in fact provoked. However this manouevre was a response to a situation in which MPs have rejected every possible route to implementing the referendum decision to leave the EU, despite their electoral commitment to do so. They have prevented the executive branch from ensuring that the referendum is implemented, but they have done this in such a way as to leave themselves only a narrow window in which to discuss any deal the PM may negotiate. They have refused the executive’s offer of a general election to let the people settle this. By evading the judgment of the true guarantors of democratic sovereignty – us, the citizenry – our parliament of liars, has invited the judiciary, the least democratic branch of the state, to rule in its place.
Legal critics of the judgment have pointed out that the Supreme Court has casually dispensed with the fundamentals of the ‘political constitution’ that was established following the ‘Glorious Revolution’ of 1688. In that constitution ‘The Queen in parliament is sovereign’, and, under Article 9 of the Bill of Rights 1689, the courts should keep out of parliament’s political affairs. But the truth is that the judges could get away with it because the old political constitution is already dead. It depended on a legislature that took its responsibilities seriously rather than handing them over to EU councils of ministers or Supreme Court justices. This judgment only nails down the coffin lid. MPs and top judges are now trying to consolidate a new constitution that is more closely in line with post-democratic EU norms. Such a constitution would be one that the political class could rely on in order to continue to evade their political responsibilities, even if they are forced to accept that Britain leaves the EU in some form.
Brexit, if it happens, will not be the end of the struggle for popular sovereignty. It will be the beginning.
(1) This is not to say that no prorogation would ever have the effects that the claimant’s contended this one had, only that this one did not. Plainly in some circumstances a prorogation might have such effects.
(2) For a discussion of Remain MPs’ errors in this respect see R Tuck, ’Parliament has No Sovereignty Higher than a Popular Mandate’, The Full Brexit, 3 September 2019
Peter Ramsay is Professor of Law at the London School of Economics. This article appeared on The Full Brexit.