Politics, courts and the UK’s single market

image_preview.jpgBrexit 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. Continue reading

The Supreme Court ruling in Cherry/Miller (No.2), and the power of parliament

meg_russell_2000x2500.jpgThis week’s Supreme Court judgment against Boris Johnson on parliament’s prorogation has shaken British politics and will be looked back on as a landmark case. Yet at the same time, Meg Russell argues, it simply reinforces the core principle of parliament’s centrality in our constitution. There has long been a myth of executive-dominance in the British system. Perhaps after this case, the fact that the government gains its power and authority from parliament will be better recognised – by those both inside and outside the system.

The Supreme Court’s judgment in the prorogation case was damning. Short of deciding that Boris Johnson had misled the Queen (which would be difficult to know, given private conversations) the court issued the strongest possible condemnation on all counts. The government had argued that prorogation was non-justiciable: i.e. not a matter in which the courts could get involved. The justices instead ruled it justiciable. Having established that, they then ruled it to be unlawful. Then, rather than leaving any loose ends regarding remedies, they explicitly quashed the prorogation, declaring that ‘Parliament has not been prorogued’. To cap it all, the decision was a unanimous one by all 11 justices who sat in the case. The prorogation was hence not just ‘improper’, as argued previously on this blog, and in a letter to the Times signed by 22 constitutional experts, but also found to be unlawful in the most powerful possible terms.

In some respects this feels like a constitutional earthquake. Few at the outset expected such a resounding result. On the basis of the High Court’s judgment, the first hurdle of justiciability was in doubt. Many who watched the proceedings, and the careful forensic analysis by Lord Pannick, representing Gina Miller, will soon have started thinking otherwise. This can only have been reinforced by watching the presentations by the government’s lawyers, who claimed that the issue of prorogation should be resolved politically rather than through the courts. Their suggestion that parliament could somehow defend itself, when the very point of the case was that parliament had been shut down, rang hollow.

The court’s judgment confirmed that advising the monarch to prorogue ‘will be unlawful if the prorogation 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’ (para 50). That flows, the judgment suggested, from two principles at the very core of the UK constitution: the sovereignty of parliament, and the accountability of the government to parliament – exercised, for example, through questions and committees. Continue reading

This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power. Continue reading

Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

Should we worry if MPs seize control of the parliamentary agenda?

download.001Ahead of Tuesday’s votes on Brexit, attention has focused on the rights and wrongs of the House of Commons seeking to ‘seize control’. Meg Russell argues that there’s nothing unusual about a democratic parliament controlling its own procedure and business. Indeed, the core principle of parliamentary sovereignty already gives the Commons control by default.

With stalemate over the Prime Minister’s Brexit deal, rejected dramatically by the House of Commons on 15 January by 432 votes to 202, there is increasing talk of parliament ‘seizing control’. On Tuesday, following the Speaker’s controversial decision to allow a vote on Conservative backbencher Dominic Grieve’s amendment speeding up the timetable, MPs will vote on a series of propositions about what should happen next. These include a further proposal by Grieve that the government’s usual control of the agenda should be set aside on specified days to allow MPs to make decisions on Brexit, and a proposal from Labour’s Yvette Cooper that such control be set aside to allow time to debate a private member’s bill demanding that ministers avoid a no deal Brexit by requesting an extension to Article 50.

Consequently, some inside government have expressed concerns that the Commons, with the Speaker’s assistance, is overreaching itself. It has been reported that an internal government document warns of MPs’ moves ‘represent[ing] a clear and present danger to all government business’, and even meaning that ‘the government would lose its ability to govern’. One senior legal figure (whose career was spent inside the government) has argued that changes of this kind could set dangerous precedents for the future, even potentially dragging the monarch into a constitutional crisis (though other legal experts have firmly rebutted such claims).

So are we entering dangerous constitutional territory? What is, after all, so odd about the idea of a democratically-elected chamber gaining greater control over its own time, and its own rules? Continue reading

Reforming referendums: how can their use and conduct be improved?

jess.sargeant.resizedalan_renwick_webThis week’s turbulent political events represent the fallout from a referendum where the consequences of a ‘change vote’ were unclear. This is just one of many concerns raised about recent UK referendums. To reflect on such problems and consider possible solutions, the Constitution Unit established the Independent Commission on Referendums. Here Jess Sargeant and Alan Renwick summarise the Commission’s conclusions and recommendations.

The Independent Commission on Referendums has published its final report today. This sets out almost 70 conclusions and recommendations, all agreed unanimously by the 12 distinguished Commissioners, who span the major divides in recent referendums. The report is the product of eight months of discussion and deliberation amongst the Commissioners, backed by comprehensive Constitution Unit research into referendums in the UK and other democracies. The Commission has also consulted widely with experts and the public, including seminars in each of the four constituent countries of the UK. We hope that, like the work of the Constitution Unit’s previous commission on referendums, this report will set the agenda for debate about the future use and conduct of referendums. 

Background

The use of referendums internationally has increased dramatically over the past three decades. This has been driven partly by changing public expectations of democracy: deference has declined and public desire for input in decision-making has grown. The UK experience has mirrored this trend. Following the first non-local referendum in 1973, there were three further such polls in the 1970s. A further nine non-local referendums have been held since the late 1990s – two of which were UK-wide.

Unlike many countries, the UK has no formal rules regarding when or on what a referendum should happen. As explored in an earlier blogpost, decisions to hold such votes have been driven by a mixture of principle and pragmatism. Nonetheless, conventions have emerged for holding referendums on fundamental questions to do with devolution and the European Union; in some cases, these conventions have even been codified in law. Referendums provide a mechanism for entrenchment in the absence of a codified constitution: decisions explicitly endorsed by the electorate are hard to reverse without further reference to the people.

The role of referendums in democracy

Referendums can enhance democracy: they can answer fundamental questions about who ‘the people’ are, strengthen the legitimacy of major decisions, and allow the public a direct say on major issues.

But referendums can also in some ways inhibit democracy. Voting is central to democracy, but so are processes such as deliberation, compromise and scrutiny. Binary referendum campaigns don’t necessarily create space for these: rather, they can encourage polarisation and division. Badly designed referendum processes can also risk undermining the institutions of representative democracy, which are essential for democratic governance across the board. There are also some topics, such as those affecting minority rights, where using such a majoritarian device may be inappropriate.

Thus, the Commission recommends that referendums be used with caution. Engaging the public in policy-making processes is essential, but there are often better ways of doing so. Continue reading