A Constitutional Land Grab – The UK Supreme Court and Prorogation

In its judgment in two cases relating to the prorogation of Parliament, in which it struck down the prorogation order issued by the Queen on the advice of the Prime Minister, the UK Supreme Court made what Lord Sumption has rightly called a ‘revolutionary’ move, placing itself squarely in the middle of territory previously regarded as exclusively political. This is an unwelcome constitutional development with long-term negative consequences, and is unsupported by any of the legal analysis on which the Court attempts to rely.

Two common features of a constitutional crisis – there should be no doubt that this is what the UK is currently experiencing – are now fully in evidence.

The first is the tendency of small events to have large effects beyond their original scope or purpose. The Fixed-term Parliaments Act 2011 had the pragmatic aim of binding the Conservatives and Liberal Democrats into a full five-year term of coalition government (2010-2015). Its function was to make clear to both parties that neither could bail out in mid-term as soon as they sensed a politically advantageous moment to force an election.

The political need for this was exhausted by the coalition coming to the end of its natural life, and the Conservatives proposed in their 2017 Manifesto to repeal the Act. However, failing to win a majority in that year’s election, they could not carry it through. So the Act remains on the statute book, where it now stands as one of the most consequential pieces of constitutional legislation in recent times. By depriving the Prime Minister of the traditional power to call an election at a time of his choosing, it is major contributor to the current sclerotic state of Westminster politics.

The second feature is that constitutional actors seek to take advantage of the prevailing disruption of established norms in order to arrogate power either to themselves or their institutions, so redrawing the boundaries of constitutional authority in their own favour. The UK constitution, with its significant unwritten elements – the maintenance of which relies heavily on conventions of moderation in behaviour – offers fertile territory for this kind of constitutional land grab. The Speaker of the House of Commons has previously ripped up the rule book which constrained him (see here). And now the Supreme Court has chosen to do the same.

The opportunity for the Court arose in the combined cases of Miller v The Prime Minister and Cherry v Advocate General for Scotland (together Miller No. 2, to distinguish the case from earlier litigation by the same claimant). The Court’s judgment is one of the most significant and controversial in its brief history.

The controversy is well-justified, because the Supreme Court has overreached itself. Viewed as a constitutional intervention, the substance and effect of Miller No. 2 is that the Court has taken occupation of territory formerly regarded as lying exclusively within the sphere of politics, and done so without even the virtue of being transparent as to its intent or that outcome. Viewed purely on a legal-analytical basis, the judgment fails on its own terms.

It is, in short, a poor judgment. And it will have important, and negative, implications for the future both of the Supreme Court itself and the UK constitution more generally.

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A Very British Coup – The Speaker of the House of Commons and the Brexit Crisis

The Speaker of the House of Commons, John Bercow, has indicated that, in accordance with a longstanding rule of Parliamentary procedure, the government is unable to bring the EU Withdrawal Agreement back to the House for a third vote. In doing so, he has strayed beyond the limits of precedent, and therefore of his authority, and has provoked a minor constitutional crisis.  

The Brexit policy of the UK government can be stated simply: to keep bringing back to Parliament the Withdrawal Agreement it negotiated with the EU until the House of Commons eventually decides to accept it. So far, the Agreement has been voted on and rejected twice. The government wants there to be a third vote. And, if it loses that, there will certainly be a fourth, and even a fifth.

The announcement by the Speaker of the House of Commons on 18 March 2019 that no further vote can take place in this session of Parliament is of constitutional significance because – while superficially a decision on an arcane point of Parliamentary procedure – it amounts in substance to a veto by him of the main policy of the elected government, with which he has now placed himself in direct opposition.

To justify his approach, the Speaker appealed to historical precedent and Parliamentary convention. But he has strayed far beyond the limits of any legal or constitutional map. Whatever his motives, he is now engaging in procedural innovation for which there is no basis in law or past practice. In doing so, he runs the risk of turning the current political sclerosis over Brexit into a genuine constitutional crisis.

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Dial B for Brexit – The Government’s Conference Call with Big Business, and the Brexit Endgame

Shortly after Parliament voted down Theresa May’s Brexit deal by a record margin, three Cabinet ministers spent about an hour on a conference call with executives from major UK businesses. The call was transcribed, and it offers a good insight into the relationship between business and government, and what this means for the Brexit endgame.

The House of Commons voted on the EU Withdrawal Agreement shortly after 7.30pm on the evening of 15 January. The government motion to approve the Agreement was defeated, as everyone knows, by the historically unprecedented margin of 230 votes.

After the vote, three senior Cabinet ministers went straight back to Whitehall where, at 9.30pm, they held a conference call with around 330 executives representing businesses with major operations in the UK.

Inevitably, given the number of people involved, someone recorded the call and leaked a transcript to the press – in this case to the Daily Telegraph, which promptly published the text on its website (here, sheltering behind its paywall).

Aside from the pleasure of feeling like an eavesdropper at the Davos conference, reading the transcript offers a genuine insight into the relationship between government and big business, and the likely next steps in the ongoing Brexit saga.

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Why the Crown (sometimes) still matters

In R (Black) v Secretary of State for Justice, the Supreme Court was required to consider when Acts of Parliament are binding on the Crown. It found that the existing law was inconsistent and unsatisfactory. It then made things worse.

The UK Supreme Court’s year in 2017 was framed by two constitutional cases rooted in the medieval history of the British monarchy.

At the beginning of the year, in R (Miller) v Secretary of State for Exiting the EU, the court was concerned with what remains, in the early Twenty-First Century, of the scope of the royal prerogative. And at the year’s end, in R (Black) v Secretary of State for Justice, it had to consider the circumstances in which a contemporary Act of Parliament is binding on the Crown.

The first of these cases, which was related to the legal mechanism for delivering Brexit, achieved wide publicity. The second did not. But the judgment in Black is revealing as to the state of the UK constitution as it enters 2018, and of practical application in a wide range of cases. It tells us something about why the Crown still matters in UK law.

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A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment 

The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.

Before saying anything else, there are three initial observations that should be made about this.

The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.

The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.

The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.

Subject to these observations, what did the Court decide, and what does it mean?

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The Article 50 Litigation – Why the UK Parliament Still Needs to Vote for (or against) Brexit

Edmund Burke, on being elected MP for Bristol, famously told his new constituents that ‘Your representative owes you, not his industry only, but his judgment’. This was his clever way of saying that he was going to make up his own mind about how to vote in the House of Commons, and not feel bound to do whatever the people of Bristol wanted.

The speech, made in 1774, has stood the test of time. It is the classic statement of an MP’s role in a representative democracy. And its sentiments are embodied in constitutional law – MPs have a duty to make up their own minds, even if they were given a clear message by the electorate in a referendum (see Moohan v Lord Advocate at [48]).

A lot of people who do not much like the idea of Brexit are placing a great deal of weight on this. They think that the EU referendum is not the end of the matter, that MPs still have to vote on whether the UK should leave the European Union, and that Parliament is in no way bound by the wishes of the majority as expressed in the referendum result.

This has led to the first piece of post-referendum litigation. But how far is it accurate?

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Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution

Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.

In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.

However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.

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