Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

Miller 2/Cherry and the media – finding a consensus? 

thumbnail_20190802_092917.jpgprofessor_hazell_2000x2500_1.jpg Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper Implications for Brexit 
Sun -5
Mail -4
Express -2
Telegraph  -1.5
Times  0.5
FT  2
Independent 3
Guardian  4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  Continue reading

Holding a Queen’s Speech in October risks heaping more embarrassment on the Queen

professor_hazell_2000x2500_1.jpgAfter its first attempt at proroguing parliament was found to be unlawful by a unanimous Supreme Court, the government now seems set on a shorter prorogation, to be followed by a Queen’s Speech. Robert Hazell argues that a Queen’s Speech is not just unnecessary, it is also undesirable if the government wants an early election.

In the past couple of weeks the Queen has been wrong-footed by two of her Prime Ministers. On 19 September there was the disclosure by David Cameron in his memoirs that he had sought the Queen’s help when he feared the Scottish independence referendum might be lost. And on 24 September the Supreme Court delivered its judgment declaring that Boris Johnson’s advice to the Queen to prorogue parliament for five weeks had been unlawful. It followed that the Order made by the Queen in Council to prorogue parliament was itself unlawful, null and void. 

Buckingham Palace indicated its ‘displeasure’ at the first episode. On the second, the Palace has maintained a dignified silence; but it is said that when Boris Johnson phoned the Queen upon his early return from New York, he apologised for giving her unlawful advice. Although that in itself provoked a constitutional thunderclap, there may be even bigger thunder clouds to come if Johnson persists with his plans for a Queen’s Speech in mid-October, while also calling for early elections.

Few commentators have remarked on this, but there is an inherent contradiction between these two objectives. A Queen’s Speech usually follows an election, rather than preceding one. If it is delivered in mid-October, and is swiftly followed by an election in November, then the Queen’s Speech will be not so much the government announcing the legislative programme for the next session, but more of an election manifesto. The Queen will have been used to make a Conservative party political broadcast.  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

Electing a new Speaker: what happens next?

download.1.jpg (1)After over ten years as Speaker, John Bercow has announced his intention to stand down at the end of October. As for who will replace him, that is unclear and will be decided by an election amongst MPs, several of whom have already declared their candidacy. But how does that election work? Mark Bennister offers a guide to the process. 

During yet another dramatic day in the House of Commons on Monday 9 September, the Commons Speaker John Bercow announced he would be stepping down either ’when this Parliament ends’ (if the Commons voted for an early election) or on 31 October. As the motion for an early election under the Fixed-term Parliaments Act did not secure the required two-thirds majority, this means he will be in the Chair for some further drama until the end of October.

On 22 June 2019, John Bercow marked his tenth anniversary as Commons Speaker. He was the first Speaker to be elected under the new system of secret ballots (SO No. 1B). He is the longest serving Commons Speaker since Edward Fitzroy, who died in office in 1943, having served since 1928. John Bercow is therefore the longest serving post-war Speaker. He had at one point let it be known that he would serve no more than 9 years, however the snap election in 2017 and the aftermath of the EU referendum led to considerable speculation that he would alter his position and continue as Speaker for the full parliamentary term.

Despite publicly stating that parliament would be the first to hear of his intention to step down, expectation had mounted that his retirement was imminent. In October 2018, in the wake of the Cox report into harassment and bullying of House of Commons staff (in which he was personally criticised), there were reports suggesting that he would step down in June or July 2019. However, this prediction was proven wrong in May, when he said in a speech that he had no intention of departing in the immediate future. The prospect of an early election this autumn and reports that the Conservatives would field a candidate against him if he stood again in his Buckingham constituency may have prompted the decision to leave next month. He therefore chose to seize the opportunity before this most unusual prorogation and retire on his own terms. 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

Might Boris Johnson try to call an election sooner than people think?

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgWhile there has been much talk about a possible vote of no confidence when parliament returns in the autumn, speculation about the possibility of the Prime Minister himself seeking to trigger an immediate election in September has been much more limited. In this post, Robert Hazell and Meg Russell suggest that an October election could hold some attractions for Johnson, but it would also hold significant risks. Crucially, under the Fixed-term Parliaments Act Labour could readily block him from pursuing it.

Since Boris Johnson became Prime Minister on 24 July there has been a daily blizzard of announcements from No 10 trumpeting more spending on the police, the NHS, schools, and other public services. This has led some commentators to conclude that he is gearing up for an autumn election. The context has largely been speculation, on the one hand, about a possible parliamentary vote of no confidence triggering such an election either shortly before or after Brexit day on 31 October, or on the other hand, over whether Johnson could successfully proceed with a ‘no deal’ Brexit, pulling the rug from under the Brexit Party, and hold an election in November.

Much energy has gone into debating how parliament might prevent ‘no deal’, considering possible legislation, votes of no confidence, governments of national unity, the caretaker convention, and the the Prime Minister’s ability to advise the Queen when polling day will be. On this blog, we have contributed our share (see here). But amidst the speculation about a vote of no confidence under the Fixed-term Parliaments Act, there has been far less focus on the possible use of the other route to an early election provided in the Act, which is to invite the Commons to agree to an early dissolution. One exception was a piece in last week’s Spectator, suggesting that when parliament returns on 3 September Boris Johnson could immediately trigger such a vote, potentially leading to a general election on 10 October. Theresa May, after all, surprised everyone by triggering an early election in 2017. Could Boris Johnson do the same?

This post considers the reasons why the Prime Minister might be tempted to pursue such a route, and the very significant obstacles that he would face.

Why Boris Johnson might favour a snap election

The potential scenario is this: Boris Johnson returns on 3 September announcing that he wants to call an early election, to seek a mandate to bolster his tough negotiating position that the EU must drop the Irish backstop – or that failing that, the UK would pursue a ‘no deal’ Brexit. He might claim that this was necessary to appeal over the heads of intransigent MPs to the public at large. Continue reading