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25 Sep 2020

Constitution and governance

On 24 September 2019, the Supreme Court delivered its judgment in the prorogation dispute and held the government’s prorogation of Parliament for five weeks to be unlawful. The judgment – unprecedented for its constitutional significance – is analysed, together with options for reform to prorogation, in a House of Commons Library Research Briefing published to mark its one-year anniversary.

With the Brexit deadline of 31 October and a ‘no deal’ exit looming large, the judgment brought into sharp focus the turbulent constitutional relationship between Parliament, the executive and the courts that characterised the Brexit process.

The government, without a parliamentary majority, was unable to deliver its Brexit policy and blamed Parliament for being obstructive. Backbench MPs took control of the order paper, and forced the government to act, contrary to its wishes, and seek an extension to Article 50.

In response, the strategic prorogation was sought to prevent further parliamentary manoeuvres, but the Supreme Court described the prorogation as having the effect of ‘frustrating or preventing the constitutional role of Parliament in holding the government to account’.

The judgment ultimately scuppered the Prime Minister’s plans to limit parliamentary debate before the 31 October deadline, and was considered a victory for upholding the constitutional principles of parliamentary sovereignty and parliamentary accountability. Most significantly, the judgment recognised that executive action cannot go unchecked and parliamentary accountability is a fundamental part of the UK constitution which the courts will protect.

Critics of the judgment, like Jacob Rees-Mogg, described it as a ‘constitutional coup’. But 12 months later, with the Conservative government re-elected with an 80-seat majority and the UK having left the EU, the judgment’s purpose and reasoning, particularly with regard to parliamentary accountability, continues to have political and legal resonance.

Since the general election, it may be argued that the constitutional function of parliamentary accountability has been weakened by an increase of executive dominance. For example, the Withdrawal Agreement Act 2020 was finally passed, but importantly, the government withdrew measures contained in the pre-election version of the Bill: gone was Clause 31 which gave Parliament a vote on the negotiating mandate and future relationship.

If Brexit was intended to restore parliamentary sovereignty the removal of Clause 31 had the opposite effect, reinforcing executive power at the expense of parliamentary accountability.

But it is not just Brexit where Parliament/executive tensions have arisen. In response to the Covid-19 pandemic the government has taken executive dominance to the next level and used the Coronavirus Act 2020 to enact legislation which has significantly restricted public and private life.

Undoubtedly needed for sound public health reasons, the Coronavirus Act makes extensive use of delegated powers, so-called Henry VIII powers (remember those, in the context of the Brexit legislation?), but they are extremely broad and enable ministers to take action without parliamentary scrutiny. For example, ministers may take decisions ranging from restricting social gatherings, to the Secretary of State suspending port operations and shutting airports.

The House of Lords Constitution Committee is conducting an inquiry into the constitutional implications of Covid-19. Evidence presented has highlighted the absence of effective parliamentary and judicial oversight for decisions taken under the Coronavirus Act. Similar arguments have also been advanced by Conservative backbench MPs who expressed concern with the lack of parliamentary scrutiny of the government’s Covid-19 strategy.

It may be this criticism that prompted the Prime Minister’s announcement of enhanced oversight by MPs in his statement of 22 September, in which he conceded that parliamentary accountability cannot be wholly ignored, even with an 80-seat majority. But how extensive or effective this oversight will be in a Parliament which continues to sit ‘virtually’ is unclear, especially because responses to the pandemic may require immediate executive action.

Going forward, the government will address the effects of the prorogation judgment, perhaps legislating to remove the possibility for judicial review of prorogation. The government has already demonstrated that it is prepared to use legislation to limit judicial oversight and Clause 43 of the United Kingdom Internal Market Bill provides a salutary warning of how the government could respond if challenged in the courts.

This clause would prevent judicial review should the government make use of Clause 45 and pass legislation contrary to the provisions of the Northern Ireland Protocol. The government would appear to be is using legislation to restrict judicial accountability of a controversial policy, perhaps because it is wary of a future ‘Miller 3’ judicial challenge.

In October 2019, the Public Administration and Constitutional Affairs Committee (PACAC) heard evidence from a range of experts on the law of prorogation, including suggestions for reform.

The committee explored whether prorogation should be put on a statutory footing, including whether legislation should prevent future involvement by the courts. A number of witnesses argued that it would be constitutionally unacceptable for legislation to restrict judicial review, but if Clause 43 of the Internal Market Bill is passed that genie will already be out of the bottle.

The government will address the constitutional effects of the prorogation judgment and the statutory review of the Fixed Term Parliaments Act 2011 is likely to embrace this. Furthermore, the government’s Independent Review of Administrative Law will also influence its decision on whether to restrict judicial review of prorogation.

The House of Commons Library Research Briefing considers the various options for reform, but any reform should uphold two key principles. First, reform should recognise the constitutional principle of parliamentary accountability and include provisions for Parliament to have a voice in prorogation. Secondly, judicial accountability should be maintained in order that courts continue to protect Parliament’s constitutional prerogatives when the executive seeks to curtail them. These principles are essential if executive dominance is not to go unchecked.

By Adam Cygan, Professor of EU Law at the University of Leicester and a Parliamentary Academic Fellow working with the House of Commons Library. He has written this post in a personal capacity.


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