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Changing the Constitution in the Guise of Preserving It


–Qinhao Zhu, University of Oxford

In most professions creativity is good. But the value of judicial creativity is more suspect. There’s the suspicion that the creative judge is cheating. Hence, judges often portray their decisions as unoriginal. At one time in England it was said that the common law had existed since the creation of the world (Wallyng v Meger). Since then the stories have become more believable. One not quite believable story is told by the UK Supreme Court in Miller (No 2)/Cherry. The villain is a Government that has prorogued Parliament for a nefarious reason. It’s hinted that the reason is delivering Brexit, perhaps no-deal Brexit, but this is never made explicit. Like other good stories this one is shown, not told. The protagonist is the Court. It is the guardian of hallowed constitutional principles. By ruling prorogation to be unlawful, it showed the Government its constitutional place, under the law and Parliament. But the logic of this story breaks down upon examination. It is really the Court that has turned the constitution upside down, usurping the powers that had once rightfully belonged to the executive and legislature.

The Court premises its decision on two constitutional principles: parliamentary sovereignty and parliamentary accountability ([41], [46]). The invocation of parliamentary accountability betrays the judgment’s departure from orthodoxy. Parliamentary accountability is a constitutional convention. Constitutional conventions are that part of the UK constitution that is for the political branches to determine. As recently as 2017 the Court reaffirmed that the judiciary could not enforce conventions, (Miller (No 1), [150]).

Parliamentary sovereignty is a legal principle, but its use by the Court bears faint resemblance to the real thing. Parliamentary sovereignty means that Parliament’s statutes are the highest form of law (Miller (No 1), [43]). In Miller (No 2) there was no statute that the Prime Minister or the Queen could have disobeyed. The Court is aware of this but says there is a wider principle ([41]). It cited the Case of Proclamations, De Keyser’s Hotel and Fire Brigades Union. The first case said the King could not change the law without Parliament. The latter two cases held that statutes prohibited the Government from acting as it did. Far from establishing a wider principle, they confirm that legislation is needed to curtail prerogative power.

The suggestion that Parliament has a will to legislate and scrutinise the Government, and that that will must prevail over that of the Government because of parliamentary sovereignty is a conceptual mistake. Parliament is a corporate entity. It is conceptually (but not necessarily grammatically), to borrow from Shepsle, a “They”, not an “It”. In Meridian Global Funds Lord Hoffmann warned corporate lawyers of the misleading metaphor of “directing mind and will”. The intentions of a company are not facts to be discovered like the intentions of a real person. They are determined by legal rules of attribution. And so it is for Parliament too. The rule of attribution for parliamentary sovereignty is clear: “The will of Parliament can be expressed only through an Act of Parliament” wrote Dicey. That is why the courts can disagree with parliamentarians on privilege (Stockdale v Hansard) and even votes of both Houses to approve a statutory instrument (Hoffmann-La Roche; Bank Mellat).

But what good is a sovereign parliament if it can be disabled by prorogation? A legal limit must be implied if Parliament’s sovereignty is to exist empirically, says the Court ([42] and see also Hasan Dindjer and Paul Craig). The problem with this argument is that it’s premised on the mistaken view of Parliament and Government being locked in conflict. The Westminster system does not work like this. In Bagehot’s words: “[t]he efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.” Parliamentary sovereignty is not in tension with executive dominance—it complements executive dominance, by guaranteeing the efficacy of a crucial instrument of governance: legislation. The power to prorogue being the exclusive province of the Prime Minister (subject perhaps to the Sovereign refusing his advice in extreme circumstances) is no more contrary to the authority of Parliament, than having Parliament’s procedures geared towards enacting the Prime Minister’s agenda (which is the case). Parliament is not a rubberstamp for the Prime Minister, however, as the Prime Minister must maintain the confidence of the House of Commons. The correct response to a wayward executive is to withdraw confidence, not keep it in power while derailing its governance.

Another problem with the argument is that it ignores political controls on prorogation. Controls that have worked well both in the UK and other countries with a similar system, there being no case establishing a power to control prorogation until now. It’s true that political controls are not full proof, but neither are judicial controls. The possibility for abuse is raised as a reductio ad absurdum: a dictatorial executive that seeks to govern for years without Parliament. The practicalities of this scenario have been doubted. But there is a more fundamental objection to this argument: an executive bent on dictatorship is not going to respect judicial decisions. When judges override executives, they necessarily override democratic executives.

In the end, the Court gives up the pretence of relying on existing legal principles when it says the case comes down to ‘whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy’, ([58]) a question no UK court has ever asked. For, what democracy ought to be was always a question left to the political branches. The Court’s application of its test illustrates the perils of letting judges decide such questions.

The Court reasons that Parliament is the cornerstone of British democracy. Prorogation, by suspending its work, necessarily damages democracy and so must be justified. One justification is the preparation of a Queen’s Speech. Because the prorogation period in this case is longer than necessary to prepare a Queen’s Speech, it’s unlawful. That’s it. There’s no discussion of how there is a competing source of democratic legitimacy: the result of the Brexit referendum, which both parties said they would implement. There’s no mention of how the House of Commons’s own democratic mandate is in question as it refuses an early election. My aim, however, is not to argue that the referendum result justifies the prorogation. It is only to argue that this is what the Court had to consider when it applied its own test. But the Court wants to have it both ways. It wants to answer political questions while trying to avoid political criticism by pretending the political issues don’t exist.     

One response is to say that since this issue was never argued by the Government, the Court could ignore it. But this is a weak response since the issue was patently obvious and there was ample evidence on it. At any rate, the claimant bears the burden of proof.  The real reason might be the Court’s lack of confidence that these were appropriate questions for a court to answer. And if it’s inappropriate for the Court to answer questions required by its own test, the test itself is inappropriate. 

Imagine if an American court said it had the authority to decide whether Hillary Clinton actually won the 2016 election because she won the popular vote or the Senate filibuster is unconstitutional because it prevents a simple majority of Senators from legislating. This is the sort of power the UK Supreme Court is flirting with when it says it has the authority to decide what is democratic.

Suggested Citation: Qinhao Zhu, Changing the Constitution in the Guise of Preserving It, Int’l J. Const. L. Blog, Oct. 18, 2019, at: http://www.iconnectblog.com/2019/10/changing-the-constitution-in-the-guise-of-preserving-it

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Published on October 18, 2019
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