UK: The UKSC's Prorogation Ruling And Its Implications For Public Law

Last Updated: 1 October 2019
Article by Scott Rollwagen and Rebecca Jones

On September 24, 2019, the United Kingdom Supreme Court released a historic decision nullifying the recent prorogation of Parliament obtained on the advice of the British Prime Minister. The implications of the decision are potentially far-reaching as a matter of public law, even though the Court took pains to describe its decision as a "one off."

In Miller, R (on the application of) v The Prime Minister, and its companion case Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), the United Kingdom Supreme Court was faced with two appeals of conflicting decisions as to the validity of the decision of the Prime Minister to advise the Queen to prorogue Parliament in the face of a looming deadline for the United Kingdom to leave the European Union on October 31, 2019.

In Miller, a Division of the High Court in England and Wales had ruled that the Court could not review the actions of the Prime Minister because the appropriateness of the Prime Minister's actions was not "justiciable" in the sense that there were no judicial or legal standards by which to assess the legality of the decision. As a political issue it was "impossible" to assess whether the Prime Minister's advice concerning prorogation was unlawful with reference to any standard.

In Cherry, a Scottish decision, the Inner House took a different approach. It accepted that decisions made on the basis of legitimate political considerations alone are not justiciable in the sense of being reviewable on recognizable public law tests of reasonableness. But the Inner House held that it could, and in the result did, set aside the Prime Minister's decision because it was held to have been motivated by the improper purpose of stymying Parliamentary scrutiny of the executive.

Surprisingly, the Supreme Court resolved the appeals of these two decisions by knocking out a premise common to each—namely that the express rationale for seeking prorogation was not subject to review. The Supreme Court ruled that the Court is always competent to rule on the extent and limits of prerogative power. No power can be without limits at all, and the Courts are always competent to rule on what those limits are. In the case of the power to seek prorogation of Parliament, the power is limited by the related constitutional principles of Parliamentary sovereignty and the accountability of the executive to Parliament.

The Court went on to conclude that a decision to advise the monarch to prorogue Parliament will be unlawful if it 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. In assessing what constitutes "reasonable justification" the Court is required to be sensitive to the responsibilities and experience of the Prime Minister and to proceed with appropriate caution.

What is striking about the Supreme Court's decision is the manner in which it applied this test. The Prime Minster had offered reasons for the decision to prorogue, notably the fact that the current session of Parliament had been long by historical standards, that introducing new Bills during the session risked prolonging it even further, that there was minimal further business that had to be concluded before the session ended, and that comparatively few sitting days would be lost, since Parliament would normally recess during the period in question for party conferences. Moreover, it was submitted on behalf of the Prime Minister that there would remain three weeks for Parliament to consider any approach to the looming Brexit deadline.

The Supreme Court ruled that these offered justifications did not explain the length of the prorogation in the face of the significant interference with Parliament's functions during the critical period in advance of the Brexit deadline. Strikingly, the Court concluded that in spite of the submissions offered on behalf of the Prime Minister, it was "impossible" for the Court "to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October."

Notably, because the Court concluded that the absence of rational justification for the length of the prorogation rendered it unlawful, it did not have to adopt the more legally straightforward—but politically charged—approach adopted by the Inner House, which was to rule that the Prime Minister's offered reasons were not the real reasons for proroguing Parliament and that the prorogation was tainted by the improper motive of reducing the time available for Parliamentary scrutiny of Brexit.

From a Canadian perspective, the United Kingdom Supreme Court's decision to evaluate the lawfulness of the decision to seek prorogation is unexceptional—it has long been accepted in Canada that prerogative power is reviewable for legality. Moreover, the Inner House's decision to review the bona fides of the Prime Minister's offered reasons is also unexceptional for Canadian observers familiar with the principle –accepted since at least Roncarelli v Dupessis –that no public power is beyond review, at least for bona fides.

What strikes a Canadian observer about the Supreme Court's decision is the degree to which the Court was prepared to scrutinize and review the substance of the Prime Minister's decision in assessing whether there was a reasonable justification for it. This result is especially striking in a case where three judges of the High Court had earlier described such an exercise as not simply inappropriate, but "impossible." A unanimous 11-judge panel of the Supreme Court found that this exercise was not simply possible, but justified in the circumstances.

In the abstract, it is hard to argue with a probing examination of a "reasonable justification" for a public authority's decision, regardless of the nature of the power being exercised. But the devil is in the details. When it comes to polycentric questions requiring a balancing of pragmatic political reality, policy priorities, and large questions of legal principle, it is very easy for Courts to pre-determine policy outcomes by framing the issue to favour a desired outcome. It is open to question whether the Court's focus on the pragmatic question of whether five weeks was truly needed could be used as a wedge to expand judicial scrutiny of legitimate policy decisions in the future, notwithstanding the United Kingdom Supreme Court's description of its own decision as a "one off".

In public law, there is an inescapable tension between the need to ensure rational justification for the exercise of public power and the need to avoid turning legitimate disputes about public policy into legal questions belonging to the Courts. This is just as true in Canada as it is in the United Kingdom. Canadian lawyers await the Supreme Court's decision in in the combined appeals of National Football League v Attorney General of Canada, and Minister of Citizenship and Immigration v Vavilov. The Supreme Court of Canada openly stated that these appeals would be an occasion to reconsider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v New Brunswick.

As much as Courts struggle to draw clear lines, today's decision of the United Kingdom Supreme Court illustrates the immense challenges Courts face when significant questions of legal principle collide with political issues of  historic magnitude.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions