Brexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.
Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.
For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.
On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. The real ‘political’ accusation is that the judges are anti-Brexit, but here we stumble immediately, because views on Brexit can be constitutional as well as political. Indeed, the Court described Brexit as ‘[a] fundamental change … in the Constitution of the United Kingdom’. Whatever one’s political views about European integration, the UK’s departure requires the resolution of constitutional issues, notably about the relationship between the government in Westminster and the governments of Scotland, Wales and Northern Ireland.
The Court proceeded as a court must, by finding grounds for determining whether actions were legal or illegal, not whether they were desirable or undesirable or good or bad for one influential group or another. To determine legality, it had to find relevant law. For anyone who thinks that the UK lacks a constitution — and therefore lacks relevant law for determining constitutional questions — the judgment is an insouciant response. There is so much law, the judges hardly know where to start. There’s Entick and Carrington (1765), a case about officers of the government searching private property. The Fire Brigades Union case (1995) provided another building block, as did Bobb v Manning (2006) on ministers’ accountability to parliament. Numerous cases address the scope of justiciability, while parliamentary sovereignty has been protected from the threats posed by the use of prerogative powers ‘[t]ime and again, in a series of cases since the 17th century’. True, there is one vital case, the Case of Proclamations (1611), that opens the floodgates: ‘the King hath no prerogative, but that which the law of the land allows him’. In a concise judgment, this quote appears twice.
The Supreme Court insisted that, ‘[a]lthough the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice.’ In a Talking Politics podcast before the decision was brought down, Catherine Barnard astutely noted how the common law has come to be used by the courts as a constitutional yardstick. She mentioned the Unison case, where the Supreme Court decided that the imposition of tribunal fees was, in its effects, contrary to the common law principle of access of justice. This was a good call: Unison was yet another authority cited by the Court in the prorogation decision, in a passage that makes clear how the Court is willing to derive constitutional principles from the common law.
Responding to Catherine Barnard, Helen Thompson argued on that same podcast that the common law, rightly or wrongly, is based on an appeal to experience and history. To use the common law to extract abstract principles, and then apply them to completely new situations, took the Court onto dangerous constitutional territory. The Court should recognise that the appropriate remedy for the wrong done by prorogation was political, not legal. This has, indeed, often been the Court’s own approach, particularly to conventions, including the claim based on the Sewel convention in the Article 50 case. But it was not clear how this political remedy could be invoked: Parliament had no opportunity to defy its own prorogation.
This opportunity could easily be created: for example by allowing parliament to vote on the advice given to the Queen by the Prime Minister. Indeed, it seems straightforward from this distance to create safeguards against the future misuse of prorogation. Probably the Court is right in its emphatic statement in the opening paragraph of the judgment: the case arose ‘in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one-off”.’ Not only are the principles invoked by the Court well-established, but also the facts of the case put boundaries around the principles.
Despite the brouhaha, neither the prorogation decision nor the Article 50 case posed any challenge to the traditional view of parliamentary sovereignty as the central constitutional principle of the United Kingdom. Rather, both uphold parliamentary sovereignty. What is unusual is that parliament has been unable to uphold its sovereignty for itself; it has in effect had to be protected by the Court. The immense contentiousness of Brexit — in particular, its effect on the ability of parliament to deliver secure majorities for a coherent plan of action — has brought the Court in.
But this does not mean that the UK’s constitutional crisis will end once Brexit happens. It is becoming more and more apparent that the day of departure will merely be the beginning of a new phase of contestation and division — perhaps not as intense and cliff-hanging as the phase leading to departure, but just as traumatic. Furthermore, it is likely that the Supreme Court will find itself at the centre of further contests, and it will struggle to dispose of them with the calm authority of the prorogation decision.
By now, it is clear to everyone that the arrangements for governing Northern Ireland relied on the UK being in the EU; it will soon become clear that the same is true for Scotland and Wales. The Court will find itself grappling with the manifest incompleteness of the devolution settlements. It will be called upon to develop the principles governing the single market within the United Kingdom (if united it remains). At present, a body of EU law is used to judge questions about government procurement practices, state aid decisions and regulatory interventions. The Supreme Court’s 2017 ruling on Scotland’s minimum alcohol pricing policy is a good example. It applied the European test of whether the market interference entailed by the policy of the Scottish government was ‘a proportionate means of achieving a legitimate aim’, and decided that it was.
Once the UK is outside the EU, there will surely be cases where the UK government and the Scottish or Welsh governments take different views on the legality of policies. It is clear that, where competing legislatures claim the right to make authoritative decisions, Westminster wins. That was the outcome of the Supreme Court’s 2018 ruling on Scotland’s Continuity Bill. The Act of Union created a union and not a federation, and devolution did not change that: Westminster is the superior authority. But this will not dispose of all potential conflicts. The decision on Scotland’s Continuity Bill compared, clause by clause, two statutes, and ruled against Scotland where they conflicted. But conflicts between Edinburgh or Cardiff and London will not necessarily be statutory: they could be policy conflicts involving regulatory authority or spending decisions.
Critics of legalism might argue that these policy conflicts are political questions which should be resolved politically. Some kind of intergovernmental authority could be established to negotiate compromises, but attempts to do this have so far failed. The UK government could seek to assert its ultimate political authority, but this would mean escalating its policy positions into statutory measures, which it will not necessarily want to do. Nor will it necessarily be able to do so, if the era of secure parliamentary majorities is over, as John Curtice has predicted.
It is likely that the Supreme Court will be the place where many disputes over reserved and devolved powers are resolved. There is an emerging body of devolution case law, but it remains rather meagre, and furthermore, the existing cases have been decided in the context of EU membership. Searching for principles to sustain the intra-UK single market in the face of divergent policies from Holyrood and Cardiff Bay, the Supreme Court is likely to be drawn to the rules of the EU single market. There is a great deal to be said for such an approach, not least that it provides some legal continuity. Conformity to established expectations and practices has been the great strength of the common law; ironically, European law could be adopted in the future by the same logic. Fervent Brexiteers reserve much of their anti-European ire for the interfering Court of Justice, but devolution means that their attempts to replace the EU with a single sovereign authority in Westminster will be in vain, and the UK’s own courts will have to pick up the pieces. The EU has changed since the UK joined in 1973, but so has the UK. It is likely that the prorogation decision is just the end of the beginning of a new era of judicial activity induced by Brexit.
This piece is due to appear in Volume 90, Issue 4 of the Political Quarterly and is reposted with permission. For the original piece, see here. To see other recent free-to-access articles from the Political Quarterly, see here.
About the author
Deborah Mabbett is Professor of Public Policy at Birkbeck, University of London.
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