Litigation is often predicated on certain assumptions. These may be the result of argumentation of the parties, the reasoning of the courts or an admixture of the two. The assumptions can take on an axiomatic character, and become ‘unchallengeable’. They may be regarded as expressive of uncontroversial facts, or perceived as inherent in the nature of adjudication. Such matters may be unpacked after the event, in academic discourse or subsequent litigation. Reflection after the event may be rewarding, but it does not change the prior decision. The importance of the present case therefore warrants some brief thoughts about three assumptions that are related but distinct, which have characterized the litigation thus far.
Assumption 1: Prorogation entails high policy
It is unsurprising that characterization of the case as involving high policy has featured prominently in the present litigation. It is a natural argument for government to make, the consequential contention being that the courts should not trespass on this political terrain. Asseveration is not however argumentation, nor does it constitute factual proof.
The reality is to the contrary. In the very great majority of instances, prorogation entails nothing akin to high policy, in the manner that this phrase normally connotes. It is merely a mechanism for ending one session of Parliament. There has to be some way in a political system to signal the end of a particular legislative session. There is no preordained way in which this should be done. There are multiple options available, depending on the country, the nature of its political system and its legal traditions.
In the UK, this is, for historical reasons, done through prorogation. Parliament’s website is instructive, stating that ‘in recent decades, when Parliament has met all the year round, the prorogation of one session has usually been followed by the opening of a new session of Parliament a few days later.’ The reasons for this are not hard to divine. The government has a self-interest in ensuring the continuity of its legislative programme and will not, therefore, consciously jeopardize this by allowing public bills to fail as a result of prorogation. It also has a self-interest in ensuring the continuity of its busy legislative agenda into the new session, which inclines towards short prorogation, so that it can be parliamentary business as normal thereafter.
Prorogation is, therefore, in most instances unproblematic, and not newsworthy. It is for this very reason that people do not march on the streets contending that prorogation is endangering democracy. There is no such danger, since it is merely the standard way of signalling the end of one parliamentary session, with no ulterior purpose.
There may be some question as to the precise date when it will occur, but this does not establish that prorogation systemically entails high policy. It does not. Nor does the fact that prorogation is, in a reductionist sense, political mean that it is a matter of high policy, or cannot be used for some improper purpose. That is a non-sequitur. There is nothing odd about a discretionary power that may be used for an improper purpose. Courts grapple with these issues in judicial review the whole time. The application of established principles of judicial review concerning propriety of purpose is not especially difficult in this instance.
Assumption 2: It is impossible for a court to intervene in relation to prorogation because there is no acceptable legal test that does not entail unwarranted intrusion on the political terrain
This second assumption is readily apparent in the cases concerning prorogation thus far. It is, with respect, misconceived. Courts do not write doctoral theses. They decide the cases that come before them. They decide cases one at a time. They must fashion a ratio that is fitting for the case that comes before the court. It is for the court to decide how broad or narrow that ratio should be. The assumption underlying the opposition to judicial review in the instant cases is that the court must be able to formulate a general principle concerning legal intervention in relation to prorogation that will cover all conceivable hypothetical instances where the issue might arise. There is no warrant for this. We do not demand this of courts in other instances. To the contrary, courts reason by analogy, normally and wisely beginning with relatively narrow propositions and moving outward therefrom insofar as this is warranted.
This approach is readily applicable in the instant case. A narrow ratio would be as follows: it is an abuse of the prerogative power of prorogation to use it intentionally to curtail the opportunity for parliamentary engagement, through legislation, debate or scrutiny, on an issue of major public importance, more especially where determination of the salient issue is subject to strict temporal limits.
This constitutes an improper use of the power of prorogation for two related reasons: the power is, by definition, being used for an objective other than the simple closure of a parliamentary session; and the use of the power in this manner entails infringement of the principles of parliamentary sovereignty for the reasons made clear in my earlier posting.
Counter-factual reasoning can be instructive. Consider then for those minded to oppose this hypothetical ratio, the nature of the arguments that might be advanced in this regard. Any such argument would, by definition, mean defending the proposition that it is constitutionally lawful and legally unchallengeable for the government to use the prerogative power in this manner.
If we accept such an argument then we recast the boundaries of Parliamentary sovereignty as traditionally conceived. 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 prorogation decision is based. If this represents the law then every text book, article and essay on constitutional law has missed this crucial qualification to the sovereignty of Parliament.
It would perforce be for the claimant to prove that the government had misused its power, but there is a very great deal of evidence available as a matter of public record attesting to the government’s willingness to resort to prorogation for this purpose, and attesting also to the fact that it was used for this purpose. The fact that the government attempted at the 11th hour to defend the use of prorogation on the ground that it was designed to facilitate introduction of the PM’s new legislative agenda makes no sense for the reasons identified in my previous blog. The argument could, in any event, be assessed in accord with standard tools of judicial review, designed to test the soundness of factual and evidentiary assumptions. The government’s claims in this respect do not warrant immunity from proper scrutiny. To countenance this would be an abnegation of judicial responsibility.
Assumption 3: Prorogation is unproblematic because Parliament has already exercised its legislative authority
The third assumption is that legal intervention is unwarranted because there are no adverse consequences from prorogation, given that Parliament has managed, in the time available, to enact legislation to limit the possibility of a no-deal Brexit in the form of the European Union (Withdrawal) (No 6) Bill 2019, which is awaiting royal assent at the time of writing. There are two flaws in this argument.
First, as Alexandra Sinclair and Joe Tomlinson, prorogation has very serious consequences for enactment of the primary legislation and statutory instruments required to render UK law fit for purpose by exit day. The idea that Parliament’s legislative function during prorogation is exhausted by passage of legislation to limit the possibility of a no deal Brexit does not, therefore, withstand examination.
Second, it is 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 for the period of the prorogation.