Proroguing and prerogative: have the courts just upended our constitution?

The constitution is an intricate tapestry: pull at one thread at your peril, for you may find that the whole unravels.

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2019 is fast becoming the year of the constitutional geek. Do you know your Grieve Amendment from your Malthouse Compromise? Your prorogation from your backstop? In a way that British politics hasn’t seen since the unfolding of the devolution settlement in the late 1990s, the procedures of governing have taken centre stage and assumed critical importance in our national conversation. Almost as if the “what?” of Brexit has become too difficult, too painful, too complicated; we have focused as a political class on the intricacies of “how?” – and intricacy is the name of the game.

The most recent development in this tightly woven tale was the unanimous judgement decision handed down by the Court of Session’s Inner House, that the prime minister’s advice to Her Majesty The Queen to prorogue parliament had been illegal because it had been disingenuous; Boris Johnson had sought to send the legislature away not to prepare the new legislative programme of the Queen’s Speech but in fact to frustrate scrutiny of his preparations for Brexit on 31 October. In the good Scots word chosen by the three judges, he had tried to “stymie” parliament. Prorogation was therefore null and void. It had not, in legal terms, happened. The case goes up to the UK Supreme Court next week.

There are two points to consider here. The first is whether advice to the Queen from her government should be able to be challenged, should be justiciable in any regard. The second is a wider issue: if the courts can strike down a decision like the prorogation of parliament (carried out, let us not forget, in the name of the monarch, not the administration), what does that say about the nature of the remaining so-called prerogative powers, those residual items of authority left to the Crown to exercise, supposedly without oversight? What is a prerogative, after all, if one is answerable for it? I’d argue that both are very significant developments which at least deserve more systematic thought than they have had, and, on balance, are probably retrograde steps.

Let’s look at the matter of advice first. We are by now quite used to the practice of judicial review, whereby the courts may examine the procedure by which public bodies make decisions. Briefly, JR can be exercised on four grounds: that an authority has acted illegally (ultra vires); that it has acted unreasonably; that it has acted contrary to proper procedure; or that it has been in breach of EU law or the Human Rights Act. That is clear enough. But advice to the monarch does not quite fit. JR is supposed to be invoked over actions, not simply suggested actions.

More importantly, though, none of the four categories for judicial review seems applicable to Johnson’s advice to the Queen; unquestionably he was within his powers to advise prorogation (and the Queen eminently within hers to grant it!); it was not prima facie an unreasonable decision (though this is perhaps the weakest part of the case for the defence); it was certainly not carried out contrary to procedure, since it was requested by a quorate meeting of the Privy Council at Balmoral; and not even the most ardent Remainer has argued that EU law or the HRA were breached.

Other questions suggest themselves. Must any and all advice between the sovereign and her government be open and accessible to those who might seek to challenge it, or is it simply to be judged on its outcomes? Does advice therefore have to be in written form, so that it can be archived and provided as part of an informal freedom of information drive? Is verbal advice unusable? (To use an analogy, important advice to the Speaker of the House of Commons from his officials will generally, in extremis, be delivered orally: how would this be reviewable?)

Fundamentally, though, should the courts have the opportunity to review and, perhaps, strike down advice which ministers may give to Her Majesty? My own view is that they should not. Of course, if the Queen were advised to pursue a course of action which is illegal, then of course consequences would flow from that. The government would be held responsible for the actions carried out in the sovereign’s name, but the advice? Surely not. The conversation between administration and monarch in a system like ours must surely be a free and frank one, without the edges crimped with an eye on potential disclosure. It would be a perfect case of schlimmbesserung (the handy German word for making something worse in trying to make it better) if this kind of disclosability were to result in two streams of advice, one “official” for public and judicial oversight, and another sub rosa to convey the real intended meeting. Confidentiality is not always malign, nor is authority. I cannot see how the decision to prorogue Parliament contravened rules or statutes. It may have been conducted under a false flag, and that is disreputable, but it is not illicit.

This brings us to the prerogative powers. These powers still residual in the person of the sovereign, as opposed to controlled by parliament, are few now. The freedom to dissolve parliament was abrogated by Section 3(2) of the Fixed-term Parliaments Act 2011, and now relies on certain political and parliamentary conditions being satisfied. However, the Queen may still appoint or dismiss the prime minister and any ministers (though in practice this is no freedom at all but dictated by circumstances); she may grant or refuse a passport to an individual; she may recognise other states, declare war and make or unmake international treaties. There is also a general and generally accepted power to “take all reasonable steps to preserve the Queen’s peace” at home.

There are a number of reasons for these powers remaining within the royal prerogative, to be exercised by the sovereign through her government. It may be felt that parliament would be improperly influenced or unable to remain impartial in carrying out these tasks; or it may be that they sometimes need to be carried out swiftly and without debate, such as the declaring of war. But what is a prerogative? It is surely, by definition, that which one can do without reference to others. The royal prerogative powers are carried out by or for the Queen in her own name, subject to no supervisory authority. The Court of Session’s judgement, if upheld by the Supreme Court, will be a massive blow for those powers. It is clear that prorogation has, until now, been a prerogative power (unlike dissolution, which ceased to be one in 2011). But if a court may strike it down, declare it not only contrary to the law but actually null and void - that is, ineffective; it did not happen - then there is no prerogative at all, but simply a power to exercise subject to judicial oversight.

There may be many people who welcome these changes, who regard them as another baby step towards a more systematically codified constitution. Such people have a tendency to see a panacea in that kind of arrangement, ignoring, perhaps, the difficulties that can arise, for example, in the United States, between different organs of government, no matter how carefully your arrangements are specified (government shut-downs, anyone?).

My own view is, and has long been, that our constitution, which is a loose framework of documents and precedent, has an extraordinary flexibility and resilience which has seen it endure in a recognisable form since the Glorious Revolution. Of course laws and usage have evolved, but the UK has not needed to overturn completely its constitutional arrangement in the way that so many comparable countries have done. The constitution is an intricate tapestry: pull at one thread at your peril, for you may find that the whole unravels.

Eliot Wilson is Chief Writer for Right Angles, a reputation management practice in London. He was a clerk in the House of Commons for 11 years before moving into writing and broadcasting on parliament and politics. He tweets @EliotWilson2.