Three jurisdictions and three judgments: one each in England and Wales and Northern Ireland in favour of the government and one, in the Inner House of the Court of Session in Scotland, holding instead that the prorogation of Parliament for five weeks is an unlawful exercise of the ‘prerogative power’.
The scene is set for a major constitutional decision by the Supreme Court when it sits, as a panel of nine judges, to hear the various appeals next week.
From the point of view of the unfolding constitutional drama that is Brexit, this question of the lawfulness of prorogation is the more important one.
Even here, however, the impact is somewhat blunted by the fact that Parliament, prior to being prorogued, succeeded in passing the European Union (Withdrawal) (No. 2) Act 2019, which requires the Prime Minister to seek an extension to the Article 50 process if Parliament has not either agreed a deal or agreed to leave the EU without a deal by 19 October.
Though there a number of lesser impacts of prorogation – no day to day scrutiny of preparations for Brexit, the loss of Bills before Parliament, and the reliance on secondary legislation to prepare the statute book for a no deal Brexit – the passing of this legislation at least means that it is more difficult to frame the current prorogation as a device intended to bring the UK out of the EU without a deal.
That question of framing will be at the heart of next week’s arguments.
From a constitutional perspective, however, more important is the prior question of ‘justiciability’: can the courts pronounce upon the legality of the use of the prorogation power at all? The traditional view in English law was that the prerogative powers were not subject to the oversight of the courts.
That has long since broken down – the courts can and do review their exercise – but it remains uncertain whether certain specific powers remain beyond their reach (and if so whether that of prorogation is amongst them).
That question of justiciability is the key fault line which runs between the Court of Session’s judgment in Cherry and that of the High Court in London in Miller.
The latter decided that the decision to prorogue Parliament (and the advice to the Queen to do so) were ‘inherently political in nature and there are no legal standards against which to judge their legitimacy.’
Arguments about the unusual duration of the current prorogation fell on deaf ears, for it was ‘impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure.’
These suggest an absolute approach, whereby prorogation can never be held unlawful.
The approach of the Court of Session is preferable. It in effect rolled together the questions of justiciability and legality: if prorogation was ‘based upon legitimate political considerations, including a desire to see that Brexit occurs’ it would not be challengeable in court.
If, however, prorogation was unlawful, the courts could say so. What results, however, is the undermining of the very idea of non-justiciability.
To say that an act or decision cannot be successfully challenged unless it is in some sense unlawful is a tautology: it could be said just as correctly of the work of a local authority as of the decision to advise the Queen to prorogue Parliament.
This is an issue with which the Supreme Court will have to grapple.
Having taken that view as to the justiciability of the advice, the Court of Session had to determine whether the particular advice was unlawful. In holding that it was, the judges of the Inner House emphasised that they were relying on concepts and rules which are common to both Scots law and English law.
This reduces (probably to zero) the likelihood that the Supreme Court will conclude that prorogation was unlawful according to the law of one jurisdiction but not according to the law of another.
But the application of those concepts and principles here is not entirely compelling: the judges of the Inner House were rather quicker than one would expect to conclude that the motive for prorogation was the improper one of – in Lord Carloway’s words – reducing ‘the time available for Parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance.’
Though many in the wider public will share that view, it may well be that the Supreme Court holds that the documentary record gives too little basis for inferring it. That it might have to consider closely the question of motive, however, demonstrates that even a victory for the government might prove personally damaging for the Prime Minister.
High-profile litigation – some of it successful, much not – has been a major feature of the Brexit process. The case before the Supreme Court next week has the potential to eclipse all that has gone before it.
It is important, however, to remember that the problems of Brexit are primarily political: ingrained disagreement, a failure to internalise the reality of modern territorial constitutionalism, a mandate for Brexit but not for the consequences of Brexit.
Legal processes will influence the way in which Brexit plays out, but they will not make these political problems go away. No matter what the Supreme Court decides, the same fundamental decisions remain to be made.
By Paul F Scott, lecturer in Law at the University of Glasgow.
