Prorogation: Constitutional Principle and Law, Fact and Causation

by | Aug 31, 2019

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About Paul Craig

Professor Paul Craig was educated at Worcester College, Oxford, where he subsequently became a Fellow and Tutor in law in 1976. He was appointed to a Readership in 1990, and then became an ad hominem Professor in 1996. He was appointed to an established chair in 1998, the Professorship in English law, which is held at St John's College Oxford. He was made an Honorary QC in 2000, and an Honorary Bencher of Gray's Inn in the same year. He has lectured at many other institutions across the world, including in North America, Europe, China and Australia. He is editor of the Clarendon Law series, co-editor of a monograph series on EU law in Context, and is on the editorial board of various law journals. He is also a delegate of Oxford University Press, and was the alternate UK member on the Venice Commission for Law and Democracy. His research interests include Constitutional Law, Administrative Law, Comparative Public Law and EU Law, and he has published widely in these areas.

The Prime Minister’s recent announcement that Parliament would be prorogued, thereby severely curtailing the opportunity for parliamentary debate, raises important issues of constitutional principle and law, and also issues concerning fact and causation. They are examined in turn.

Constitutional Principle and Law

We begin with constitutional principle and law. We seek to decide whether the courts should intervene via judicial review, in order to prevent Parliament from being prorogued. We do not, however, begin with a clean slate. We look to case law where the courts have intervened to curtail prerogative power, discern the underlying principles, and then decide whether those are applicable to the case at hand.

Consider then the principal case law concerning constraints on prerogative power dating back to the seventeenth century. The constraints on prerogative power embodied in Proclamations, De Keyser and Miller all protect parliamentary sovereignty. Parliament is the legitimate legislator within the UK and the case law protects that authority from being undermined. If the executive could change the law of its own volition, it could thereby bypass legislation without amendment or repeal, hence the principle in Proclamations. If the executive could use the prerogative where Parliament had already addressed the issue in an existing statute it could then avoid the legislation crafted by Parliament, hence the principle in De Keyser, and its extension to cases where the prerogative would frustrate the legislation. If the executive could render a constitutional statute devoid of effect through recourse to the prerogative, the statute would not be worthy of that appellation, hence the reasoning on this issue in Miller, drawing on that in HS2.

Proclamations protects parliamentary sovereignty directly, by preventing recourse to the prerogative where it would change the law. De Keyser and Miller protect sovereignty indirectly: the former by precluding use of the prerogative where the formal law is left intact, but the executive seeks to circumvent it by use of the prerogative; the latter case by preventing a constitutional statute from being emasculated through executive action, even if it remained formally on the statute book.

The salient issue in relation to prorogation is whether the Prime Minister’s discretionary power should be limited pursuant to the principles underlying the case law set out above. The argument for an affirmative answer is compelling. This is so for two related reasons.

First, to contend that there is some difference between the existing case law and the present situation does not withstand normative examination. The reality is to the contrary, the rationale for intervention to protect parliamentary sovereignty is even stronger than in the preceding cases. Consider the following two propositions. Parliament has enacted a statute, the executive seeks to circumvent it by recourse to the prerogative, and the court intervenes to protect parliamentary sovereignty via the De Keyser principle. Parliament wishes to exercise its legitimate authority through enactment of a statute, or in some other way, the executive precludes this through prorogation, and the court is said to be powerless to intervene.

This distinction makes no principled sense, more especially because the latter abuse of discretionary power is more far-reaching and significant than the former. The former impacts only on a particular statute. The latter constitutes a pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued. It affects not merely one piece of legislation, but its capacity to exercise the totality of its legislative authority, thereby severely curtailing the opportunity for parliamentary voice on an issue that, whatsoever one’s views about Brexit, is of major importance for the UK’s future. This is, moreover, the reason why judicial intervention in this instance would not signal some general judicial intrusion in this terrain. The use of prorogation in this instance is singular, and warrants judicial intervention.

Secondly, the case for judicial intervention is also compelling because of the impact of the abuse of power in relation to prorogation on the sovereignty principle itself. The sovereignty of Parliament is the foundational principle underlying the unwritten UK constitution. This sovereignty resides with Parliament, not with the executive. Compare once again the preceding scenarios, and their relative impact on this foundational principle. The De Keyser scenario represents a challenge to sovereignty, since the executive seeks to bypass an existing statute, through recourse to the prerogative. It was for this very reason that the House of Lords intervened to prevent this. The prorogation scenario is more far-reaching in its impact on sovereignty. The reason is not hard to divine. 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.

Nor can such reasoning be defended on the ground that the Prime Minister believes that this use of prorogation would be justified in order to fulfil the will of the people. Let us leave aside the fact that the Prime Minister presently has the slender legitimacy that comes from a vote of 92,000 Conservative members; let us leave aside also the fact the divination of the will of the people in terms of being content with a no-deal Brexit is fraught with difficulty. The root problem with this reasoning is more serious, and betrays a deeper lack of understanding of our constitutional order. The sovereignty principle inheres in Parliament and the totality of members thereof at any one point in time. The very idea that Parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head. We are constitutionally impoverished if we regard this as the new constitutional norm.

Fact and Causation

There is no doubt that supporters of prorogation will attempt to blunt the preceding argument by repeating the claim that it was not driven by the desire to forestall discussion of Brexit, but because the Prime Minister wished to press ahead with his new agenda, and did not wish to wait until after the presently existing Brexit deadline. This is then coupled with the argument that the present parliamentary session has been very long, and that it is legitimate to signal the new beginning with the Queen’s speech scheduled for mid-October.

A response to this argument, voiced by many in the aftermath of the prorogation announcement, is simply to regard it as a veneer that conceals the real reason for the prorogation, which is to limit the time for parliamentary voice on Brexit. Truth to tell, there have been government statements post the prorogation announcement that acknowledge its impact on the domestic Brexit agenda, and that in Brussels.

A second response would be that, even if we assume that the desire to press ahead with a new agenda represented reality, the costs in terms of the impact on parliamentary sovereignty are simply far too great, more especially at this crucial time for Brexit deliberations. Indeed, one could press further in this regard: given that the present parliamentary session has lasted a long time, a few more weeks would hardly make a crucial difference in terms of getting the Prime Minister’s new agenda on the road.

The third response is that the preceding argument makes no sense in its own terms. Consider the following. We have a fact, the Prime Minister’s statement that he wishes to press ahead with his new agenda. We have assertion of a second fact, prorogation is said to be necessary to enable the first fact to happen. There is assumed to be causation between the two. This assumption is a non-sequitur. If the Prime Minister wishes to kick start his new agenda now, there is nothing legally or politically to prevent him from instructing civil servants in the relevant departments from pressing on to draft the requisite legislation, sort out the finances and the like. They were probably already doing this before prorogation. The reality is not merely that the causation is lacking. It is that prorogation will almost certainly hamper prime ministerial efforts to roll out the new agenda. If prorogation occurs, Parliament does not sit, no legislation is enacted, and there is a danger that some necessary Brexit legislation will be lost or impeded because of prorogation. If Brexit happens there will then be a log-jam of Brexit-related measures that require enactment, thereby pushing into the long grass efforts legislation designed to address non-Brexit issues.


 

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23 Comments

  1. Michael J Moran

    Thank you for that clear dismantling of every aspect of the Government’s position. I’m definitely not a lawyer but I’m definitely glad you are.

  2. Robert Dyson

    In addition, this prorogue could have been three days, why 5 weeks? We know the answer. Thanks for this clear analysis of precedents. Parliamentary sovereignty has to be above everything else. Disagreement and debate is the only way to achieve long term stability even though sometimes it seems tediously inefficient.

    • Eric Levin

      If Parliamentary sovereignty has to be above everything else, is prorogation justified if it restores Parliamentary sovereignty lost to the EU?

      • Rich W

        No. Parliament voted to pool elements of its sovereign powers with others, through the EU. It was a conscious decision. Parliament can vote to regain that lost sovereignty, but it still holds that Parliament should have the final say and not be forced into a position by the executive.

  3. Errol Mendes

    Thank you for the excellent article on the anti-democratic prorogation by Boris Johnson in the OHRH. I agree with your excellent analysis that the courts should be able to deal with such executive actions that strike at the heart of parliamentary sovereignty. I wondered if you knew about the Canadian precedent that Johnson may have learned from. It is described briefly in my OpEd article in our national newspaper: https://www.theglobeandmail.com/opinion/article-in-proroguing-the-british-parliament-boris-johnson-follows-in-stephen/

    • Jonathan Warner

      Do we know for certain that HM did not get some kind of similar undertaking from the PM – that he would not seek to extend the prorogation, or that he would allow (“ample”) time for debate on Brexit when parliament returned?

  4. tim trotman

    Prerogative powers have Dicey/Blackstone/Locke conceptual lineage. The Locke approach emphasise “public good.” The fairly narrow and short term interest of a section of politicians ( albeit currently in power) is difficult to square with concepts of public good. Courts may cavil at entertaining “public good” but that has not prevented them historically making policy decisions eg in field of tort law. So what is a rapid way of demonstrating at least prima facie that the recent prorogation was against public good ? Surely it is the very recent statements of the same politicians incl current Prime Minister that they would rule out / not contemplate / abhor prorogation ? Just a thought

  5. Kim Cowie

    Thank you for such a straightforward account .

  6. Simon Witney

    Excellent article, thank you.
    Assuming that MPs are successful in taking control of the order paper this week and passing legislation, could they pass a law requiring the PM to advise the Queen to revoke her prorogation order and requiring that future prorogation advice should only be given by the PM after an affrimative vote in the House?

    • Simon Witney

      A colleague tells me that such a Bill would require “Queen’s Consent”, and therefore could only pass with government support. Perhaps that explains why the House did not attempt it.

  7. Jonathan Hunt

    ‘Proclamations, De Keyser and Miller’ should be identified, as in normal of academic writing.

  8. Daniel Cappelletti

    Indeed. The arguments presented are formidable. The sad facts are that it is obvious that HMG is lying about the reasons for prorogation, that said prorogation is evidently, whatever ones views against the constitution, that in the event said constitution was felt not to be appropriate only parliament can change it, and finally and most sadly that despite all this many people approve of this if they get what they want. The constitution is there to protect us; and many aspects place constraints in the way of precipitate action. Slap aside these constraints at all our peril

  9. Ed Randall

    Thank you very much for this concise, persuasive and eloquent exposition of the case against ‘Johnson’s prorogation’. It seems to me that most all of us would benefit from what I’m sure would be an equally cogent presentation of your thoughts on how best to change our unwritten constitution so that it provides for proper and effective constraints on the unprincipled and abusive use of prerogative powers.

  10. Neil

    De Keyser and Miller protect sovereignty only so far as preventing the use of the prerogative to change the effect of legislation. It’s quite a leap to conclude that the courts should decide to intervene on the basis that a political decision by the executive to advise that parliament be proroged is an abuse of power.

  11. John Alexander

    I hope Professor Craig is right. But I’m concerned about one precedent that, arguably, goes in the other direction. In the case about the legality of the ban on fox-hunting (Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56) there was discussion about the 1911 Parliament Act about which Lord Bingham held (paragraph 10) (very likely obiter):
    “The only means which the constitution provided to ensure that the will of the elected house prevailed over that of the upper House where deadlock occurred was by the creation of enough new peers supportive of the government’s measure to carry it in the Lords. Advice by the Prime Minister to create new peers was advice which a constitutional monarch was bound, ultimately, to accept.”
    The 1911 Act reduced the powers of the Lords to the advantage of the Commons: an invasive change in the constitution, based on the “will of the elected house” that drove “advice which a constitutional monarch was bound … to accept”. If we substitute “will expressed by referendum” can this justify advice to a monarch requesting extended prorogation that the monarch is bound to accept? Even if this diminishes parliamentary supremacy? Is shortening the time in which Parliament may sit as invasive a precedent as diminishing the powers of the one its Chambers? Yet this was done on the back of a threat to deploy prerogative (even though this was never implemented, contrary to the situation in 2019).

    • Martin Verran

      While it is true that the 1911 Parliament Act did alter the balance of power between the two Houses in order to assert the “will of the people” it did not alter the power of Parliament itself. One could argue that a “will expressed by referendum” could be used to alter that balance of power between the Houses in the same way the result of the 1906 Parliamentary election was taken as “the will of the people” in the 1911 Act, but not to alter the balance of power between the Executive and Parliament. It is the Parliament that is constitutionally protected.

  12. AB

    I’m sorry but I really don’t follow the argument here at all. (Usual disclaimers about having no legal training apply.)

    Is the power to prorogue Parliaments an accepted prerogative of the crown? Yes, it has been used (usually) annually and has not been limited, fettered or curtailed by statute (by and large).

    Is the power to prorogue subject to limits? In theory there are none that I am aware of, although obviously a Parliament could not be prorogued longer than the five years, because it would have to be dissolved. In practice, yes there are, because the Government will want to pass its own legislative agenda, and ultimately most taxes and government expenditures are subject to annual approval by Parliament. It is therefore not viable for a modern Government to rule without Parliament. In the past, Parliaments have been prorogued for varying periods and this has attracted little comment. It is however possible to foresee a situation where Parliament sat for a few months a year and was prorogued for the rest of the time (such short sittings are not the tradition in the UK, but see e.g. the Texas Legislature).

    What is contended above is that there is a class of prorogations that are illegal because they are abusive, or perhaps are intended to be abusive. This is easy enough to set out as political argument, and indeed this is cogently done under the heading ‘Fact and Causation’. I have difficulty, however, encapsulating this into a legal doctrine.

    A first approach might be considering a prorogation abusive by excessive length, but what length of prorogation becomes abusive/illegal? At some point an arbitrary line would have to be developed, but I find it difficult to see the courts setting one. I doubt a single day could count as an abusive prorogation. And indeed, would a 3 month long prorogation over the summer recess be cause for such controversy?

    A second, more sophisticated approach might to consider whether, in all the circumstances, a prorogation amounted to an abuse, i.e that by virtue of its timing it was done for purely political gain. But this involves the courts wading into the world of arbitrating what is or is not considered a sensitive time politically, which to me feels untenable and could lead to the even less desirable outcome of the politicisation of the courts.

    The third approach, which is what I think Prof Craig subscribes to, is that prorogations are illegal/abusive if they are intended to frustrate Parliamentary sovereignty. But again this also has its difficulties, particularly in the present situation. There is no statute that I am aware of that will be frustrated by the present prorogation, so instead Prof Craig argues:
    “Parliament wishes to exercise its legitimate authority through enactment of a statute, or in some other way, the executive precludes this through prorogation”

    This approach is fraught with difficulty:
    (a) if prorogations are illegal because they frustrate a hypothetical future act of Parliament, then virtually every prorogation ever has been illegal. Every prorogation kills off bills (usually dozens of private members’ bills, sometimes some government bills), which under this line of argument would preclude a prorogation. Bills usually are killed off mid-stages, sometimes after being passed by one House, and are not just killed off at the beginning of the Parliamentary process by prorogations. Are these preclusions of Parliamentary sovereignty too?
    (b) No bill on the subject of EU Withdrawal had been introduced into either House, at the time of the prorogation. In addition, is there any particular legal reason why a bill relating to EU withdrawal would be more deserving of some sort of rule against abusive prorogations than one on any other topic?
    (c) Prof Craig is using his political judgment, based on assumptions, press reports and inductive reasoning, to *presume* that Parliament intends to act on these matters. But that is far from clear – recall that the previous effort passed by a single vote. But given that no such Act has been passed, nor had a bill even been introduced at the time of the prorogation, this invites the courts to make judgments on political speculation. This is dangerous.
    (d) similarly, there has been a presumption that proceedings in Parliament are not to be questioned by the courts, which is a wise act of judicial self-restraint. This proposal would potentially overturn this doctrine.
    (e) it is a mistake to confuse the term ‘parliamentary sovereignty’ to mean “Parliament’s desire to express a view on a matter” with “Parliament is the supreme source of law”. Just because Parliamentary expression of a view would be supreme (if enshrined in statute) does not necessarily mean that is an abuse to preclude them from expressing a view.

    We must make a decision here that lasts for the ages, and does not lead to over-reach by the courts. A future Parliament may by statute wish to fetter the power to prorogue (or indeed abolish it altogether) but that is for Parliament and not the courts to develop.

    • Paul Craig

      Thanks for this comment. I do not agree with the reasoning or result for the following reasons.

      1. If we accept the argument in this comment then we recast the boundaries of Parliamentary sovereignty as traditionally conceived in the following sense. Parliament remains omnipotent, in the sense that there are no bounds to its legislative authority, but the executive can determine when Parliament exercises that legislative authority. It can choose to prorogue Parliament whenever it so wishes, including in order to prevent Parliament exercising its voice, though legislation or otherwise, merely because the executive believes that what Parliament might do is undesirable. The executive’s decision in this respect is legally unchallengeable, irrespective of the ground on which the decision is based. If this represents the law then every text book, article and essay on constitutional law for 300 hundred years has got it wrong and missed this crucial qualification to the sovereignty of Parliament.

      2. This qualification to sovereignty is, moreover, untenable on any principled or normative grounds for four reasons.

      (a) Sovereignty resides with Parliament, not the executive, and it is not for the executive to dismiss Parliament merely because it believes that Parliament is impeding some objective that the executive believes to be desirable.

      (b) In relation to legislation, it means that the executive could, as in this instance, curtail Parliament’s legislative authority by shutting down Parliament so as to prevent or radically circumscribe the time within which legislation could be enacted, with that being the purpose of the prorogation.
      The point made in the comment to the effect that legislation may founder and have to be introduced again in any prorogation misses the point. In a normal prorogation there will be cross-party discussion concerning preservation of Bills. This is not a normal prorogation. It was designed with the intent to minimize/curtail the opportunity for such legislation to be introduced until it was too late to be effective.

      (c) It is moreover mistaken to think of sovereignty as only relevant to statutory outcomes. Parliament is the source of discursive debate on the floor of the House and in committees, as well as political accountability and scrutiny through Select Committees. To be clear, it is not that sovereign status attaches to a debate or resolution, it does not, but that is to miss the point. Parliament’s engagement in such activities is an essential feature of its sovereignty. It is through such debates/scrutiny, that it can determine what is in the best interests of the country, and whether that is best achieved through legislation or in some other way. Prorogation that is designed deliberately to take Parliament out of the game in order that the executive can pursue its desired ends, thereby precludes parliamentary voice, discourse and scrutiny in relation to that topic for the period of the prorogation.

      (d) The comment to the effect that I do not know what action Parliament might have taken if it had not been prorogued is wholly reductionist. Prorogation in these circumstances cannot be defended on the ground that what Parliament might have done cannot be known. The future is of course unknowable, precisely because the relevant player, Parliament, is taken out of the equation. This cannot possibly be used as a justificatory argument for what was happened.

      3. There is, contrary to the comment, no especial difficulty in adjudicating on prorogation in this instance, nor does such review signal any general intrusion into this terrain. The reason is as follows. It is legally axiomatic that the action of public officials when challenged in court is adjudged by the reasons that they gave for that action. The rationale is readily apparent: we do not wish such officials to be making up justifications after the event. There are therefore two possible grounds on which to test the current prorogation.

      (a) Firstly, as a matter of extensive public record, the PM and various cabinet members have insisted that prorogation should remain on the table in order to facilitate a no deal Brexit. If this was the ground for prorogation then it is per se abusive, for the reason given in point 1 above, and in the blog. It is not for the executive to curtail Parliament in the sovereign exercise of Parliament’s authority on a vitally important issue, merely because the executive does not like what might transpire if Parliament exercises that voice. If we accept the contrary view then we really have not advanced from the Stuart monarchs.

      (b) The second possibility is that prorogation is judged on the basis latterly put forward by the PM, which is that it was done in order that he could advance his new programme. That argument makes no sense for the reasons that I set out in my blog. Courts are not obliged to accept arguments for action advanced by public officials. They can and do regularly test them to see whether they make sense. If they could not do so then adjudication would be wholly diminished.

      • AB

        Prof Craig – thank you for this detailed and thoughtful reply. I had not realised you had done so or else I would have replied earlier. Again I profess no special training or knowledge other than a general interest in constitutional matters.

        I think I can summarise your argument as follows – there is a principle of law that Parliaments should be able to meet and vote on things, free from interference by the impositions of the executive through (excessive) prorogations.

        I would argue in response that, no such principle exists, and rather that the rarity of extended prorogations arises from political convenience and other practical considerations, instead of a profound, established constitutional principle. The present situation emerges therefore not from an outrageous abuse by the executive, but rather the novel circumstance of an executive not possessing a working majority in the House of Commons.

        You may find my perspective appalling but I would suggest that is a political argument and not a legal one. To expand my argument:

        (a) most Governments have been sure of the support of the House of Commons on important matters, through their majority. In turn, current working practices have developed so that the Government also dominates the proceedings of the Commons through its control of the order paper. Combined with the supremacy of the Commons over the Lords, this means Government has an incentive to keep Parliament in regular session so it can enact as many legislative changes as possible, given ministerial appetites for change (and I can assure you there is always more demand than supply in regard of new primary legislation). Not only is ruling without parliament practically difficult, it is also undesirable for the Government in normal circumstances;
        (b) this has meant that prorogation has been reduced over time to a formality, because the Government has sought to keep maximise available Parliamentary time, in turn because it is in the Government’s interest to do so;
        (c) prorogation is an unusual, unreformed prerogative power that descends from the medieval right of the monarch to convene and dismiss Parliaments. Dissolution has been significantly curtailed by statutes over the centuries, but prorogation was not, for there was no need to do so because of (a). Parliament reaffirmed this in s6(1) of the FTPA.
        (d) we now find ourselves in the constitutionally novel situation where a Government is in office for an extended period without the support of a majority of the House of Commons. In previous eras Parliament would have been dissolved by this point while a general election was held. The logic in (a) and (b) no longer applies – rather than Parliament being the supporter of the Government, it is now actively dictating instructions. This creates a more politically challenging situation for the Government, and hence the use of extended prorogations becomes newly desirable. (As an aside, it seems by accident we have re-separated the branches of Government by creating disalignment between Parliament and the Executive.)
        (e) my contention is that the development described in (d) has not fundamentally changed the underlying – if rarely used – full effect of the prorogation power. Further, the reason prorogation appeared to be a docile irrelevance was because of the circumstances in (a) and (b) and not because of a constitutional principle that Parliaments should not be prorogued for more than a handful of days.
        (f) This may be undesireable as a matter of policy, but that is a matter for Parliament to reform through statute, not for the courts to develop themselves.

        With regards to your specific points (following your numbering scheme):
        1. I do not think it is a misrepresentation of the term ‘parliamentary sovereignty’ to say this refers to the supremacy of statute made by Parliament and the latter’s unlimited legislative competence, rather than the right of MPs and peers to meet free from prorogations. The latter seems to me to be a novel principle developed bespoke for the contentious circumstances we find ourselves in.
        2(a) – a prorogation is not a dismissal or over-ruling of Parliament. If the executive needs to amend a statute (or pass an affirmative SI), authorise expenditures and taxes, the consent of Parliament is still required and the prorogation will have to be ended. Parliament may not have expressed a view, but no Parliamentary powers would have been appropriated by the executive.
        2(b) au contraire, the use of prorogation to forestall or thwart legislation is a common (if not well known) feature of the Westminster parliament. Dozens of bills are precluded from progress by its annual use. I therefore struggle to turn your argument into a general principle. I also do not think that the lack of cross-party consultation in this case is relevant – the executive is not under a duty to consult on prorogation (although it may be desirable to do so). Further, the executive is well known for use of tactical procedural manouevers to thwart the passage of legislation absent prorogation, but these Parliamentary proceedings are not accepted as subject to question by the courts. Is there really a distinction to be drawn here – surely they are both purely political matters?
        2(c) further, while I agree that regular debates in Parliament, questions and ministerial accountability are vital parts of our democracy, these are political arguments about desirability. Your point about “deliberately about taking Parliament out of the game” is a quintessentially political one that I struggle to see transferring to a legal principle without enmeshing the courts in politics.
        2(d) I do think my original point is important and perhaps has not been given due consideration. Absent an approved statute, how is a court to interpret or divine the will of Parliament? Suppose a MP initiates court action on the grounds that they would have introduced a certain bill, were it not for an upcoming prorogation, which they believe would have passed. Virtually any MP could have standing to do so. Are we really wishing the courts to initiate a trial of the evidence as to how MPs and peers might have voted on this – not even published – bill?

        3. With respect to your arguments (a) and (b), I am inclined to accept them as the arguments advanced by the Government are not particularly strong. However, I do find the argument advanced by the Government in the courts in the last few days – that there is no legal standard on which to judge these decisions – as potentially more compelling. I would also repeat my earlier point that no concrete action had been taken at all regarding EU withdrawal (as Parliament was in recess) at the time of the decision to prorogue was made, so there is a difficulty in contending that the prorogation was designed specifically to preclude specific parliamentary action relating to EU exit.

        • Paul Craig

          Thanks for the further comment. Discourse is good, but we clearly disagree on this. So, let me respond to your second round of argument.

          1. The key starting point of my argument is not as you have represented it. Your summation does not capture or summarise what I said. My starting point is as I set it out in my initial response to your earlier comment:

          (a) If we accept your argument then we recast the boundaries of Parliamentary sovereignty as traditionally conceived in the following sense. Parliament remains omnipotent, in the sense that there are no bounds to its legislative authority, but the executive can determine when Parliament exercises that legislative authority. It can choose to prorogue Parliament whenever it so wishes, including in order to prevent Parliament exercising its voice, though legislation or otherwise, merely because the executive believes that what Parliament might do is undesirable. The executive’s decision in this respect is legally unchallengeable, irrespective of the ground on which the decision is based. If this represents the law then every text book, article and essay on constitutional law for 300 hundred years has got it wrong and missed this crucial qualification to the sovereignty of Parliament.

          (b) There therefore is no authority, post the Stuart monarchs, for the proposition that you maintain to the effect that the ‘full effect of the prorogation power’ is an absolute power, which can then be used, inter alia, deliberately to prevent a sovereign Parliament from exercising its legislative and deliberative authority. Parliament would on your view exercise its legislative and deliberative authority by grace and favour of the executive, which could, as the present government was minded to do, rid itself of Parliament for the period that it wished. You provide no empirical, or normative argument for this far-reaching proposition. There is none.

          (c) The existence of such an absolute power may, in your words be ‘newly desirable’ for the executive, because of the circumstances that it finds itself in relation to Parliament, but the fact that something is desirable for the executive does not provide any foundation for the claim that such a power should exist, or that the prorogation power should be unfettered and absolute in the way that you maintain.

          2. Let me now turn to your response to the second part of my argument.

          (a) My argument was that sovereignty resides with Parliament, not the executive, and it is not for the executive to dismiss Parliament merely because it believes that Parliament is impeding some objective that the executive believes to be desirable.

          I fail to see what you say on this point constitutes an answer to the point that I made. it is of course true that if the executive needs supply, or to pass a statute then it will have to recall Parliament. But this does not touch the point that I made at all. The prorogation in this instance was designed to curtail radically Parliament’s ability to prevent a no-deal Brexit. Its power to enact legislation and scrutinize the government is thereby pre-empted during the relevant period. Sovereignty resides with Parliament, not the executive. The fact that the executive would have to recall Parliament if it wished to get something done is true and irrelevant to the point that I made.

          (b) There are two responses to your argument on this point.

          (I) Empirical: you provide no evidence of the fact that there are dozens of bills that are routinely intentionally precluded from progress by use of prorogation. You say that this is a little known fact. It is also highly counter-intuitive. The government controls the normal legislative agenda. It wants its legislation to reach the statute book. There is therefore no reason why it would routinely sacrifice dozens of public bills through prorogation. Now you might mean private members bills, but the government does not need to use prorogation to prevent the passage of such bills.
          (ii) Conceptual: there is also a conceptual problem with this argument. Your response on this point can be summarised thus: governments use tactical devices of various kinds during the legislative process, therefore we can and should make no distinction between them, and the use of prorogation to curtail Parliament’s ability to intervene on a matter that is strictly time limited, which is to prevent a no deal Brexit. I do not accept this. We make such distinctions the whole time. The fact that, for example, the government can use established House of Commons procedural rules to its advantage does not serve to justify its instrumental use of prorogation in this instance.

          (c) Your response to my point (c) does not address the point that I was making, which was as follows: it is not just that Parliamentary deliberation and scrutiny are part of democracy, which they are; it is that they are a quintessential part of Parliament’s sovereignty. It is through such debates/scrutiny, that it can determine what is in the best interests of the country, and whether that is best achieved through legislation or in some other way. Prorogation that is designed deliberately to take Parliament out of the game in order that the executive can pursue its desired ends, thereby precludes parliamentary voice, discourse and scrutiny in relation to that topic for the period of the prorogation, and thereby impinges on Parliament’s sovereign authority.

          (d) Your argument on this point stands logic on its head: Parliament is prorogued because the executive wishes to achieve a result that Parliament is likely to impede. We are then told that there can be no redress for this because it would be impossible to prove what Parliament might have done if it had been present. I continue to find this argument illogical and reductionist for the reasons that I gave earlier. It is akin to saying the following: a person will not be heard , or given voice, in a certain situation, but we then deny any redress on the ground that it cannot be proven that the person would have said anything that was salient. If this reasoning held true then the law of due process would never have been created.

          3. I do not, for the reasons that I stated in my earlier response, believe that judicial intervention in this instance would signal some general judicial intrusion into this area. The legality of action is judged in the light of the reasons for which it was done. I do not think that the prorogation is legally sustainable on either hypothesis (a) or (b). The empirical evidence presented to the court about the timing and circumstances of the prorogation decision merely strengthen this.

  13. Geoffrey M. Beresford Hartwell

    I am gravely concerned that none of the cases cited – Proclamations, De Keyser and Miller – is accompanied by a hyperlink to the original, as has become usual. Nor is the citation in a recognised form. That suggests that the actual record may not be precisely as is represented here. Mr Hunt makes the same point.

    • Paul Craig

      I have already been in touch with Geoffrey Hartwell about this. He is correct, the case references should have been provided. I have provided these to him. The substance of what I said about the cases is entirely accurate.

  14. Neil Kennerley

    De Keyser and Miller protect sovereignty only so far as preventing the use of the prerogative to change the effect of legislation. It’s quite a leap to conclude that the courts should decide to intervene on the basis that a political decision by the executive to advise that parliament be proroged is an abuse of power.

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