Stephen Franks: UK Supreme Court prorogue decision

I was surprised, like most lawyers I suspect, that the UK Supreme Court decision was unanimous.  A few recent days in London soaking up the fevered writings of UK journalists left no doubt that judges steeped in London establishment sentiment would be tempted to consider it God’s work to throw a spanner in Boris Johnson’s spokes if they could.

But I assumed that at least some would affirm the approach of the High Court below, with the traditional caution about entanglement in matters that should be resolved politically. For centuries such judicial restraint that has helped keep UK courts and judges somewhat insulated from waves of popular dissatisfaction with politics and politicians.

But instead the SC judges unanimously decided in a way that may include or subject them, at least for the immediate future, to the current wave of democratic disdain for leadership institutions and for leaders generally.

I have been too busy to write a considered analysis of the decision. To me the judges clearly established that a decision to intervene is not revolutionary. Their distinction is orthodox, between a Parliamentary action and that of the Executive (Crown), and the prorogue request is not that of Parliament.  But they failed to show why it was necessary or wise to exercise that power to intervene .

Instead they show legal hubris. Political actors are constantly obliged to make decisions with inadequate information, where there may be no good outcome, and they are juggling between bad and worse. Judges are permitted to ignore the unproven and the speculative. Political leaders cannot. The Supreme Court ignores the reasons for constitutional conventions such as the convention reserving treaty making powers to the Executive, and blithely assumes an over-riding value in Parliamentary “supervision” of the Executive. This is risible, coming after three years of conspicuous Crown/Executive confusion and paralysis induced or at least compounded by  incoherent Parliamentary “supervision”.

But the decision deserves more than my simple ‘real-politik’ observation.

I asked Bernard Robertson, formerly Editor of the New Zealand Law Journal, what he made of the judgment. He now reports on cases in the NZ Supreme Court.

Here is his response. All that follows is his:

The media coverage of the UKSC judgment has been quite misleading: 

a) nowhere does the judgment say that BoJo misled the Queen. In fact nothing is known of what he said to the Queen, as is usual. 

b) nowhere does the judgment say that BoJo’s purpose was to prevent debate over Brexit. It says that that was the effect. 

c) the judgment turns on a very narrow point concerning the evidence that was put before it. 

The Court’s argument goes like this:

1. The decision to prorogue is justiciable – ie not a purely political matter the courts cannot go into (at [52]). 


2. The standard that should be applied is (at [50]):

“A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” 

Did the prorogation have that effect? “The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.” (at [56]).

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.” (at [61])

Bernard’s commentary:

1. Justiciability. This decision might not be surprising given the tendencies of courts in recent decades. But four out of seven judges in the Courts below had considered that the decision was not justiciable, including an English High Court bench composed of three heads of division who are also members of the Court of Appeal. One can argue the toss about this and there is room to argue that the Supreme Court dealt with some of the counter-arguments in a conclusory way without much reasoning. But the key point is that the Prime Minister ran his case on the basis that the decision was not justiciable and that meant that he put in no evidence as to the merits of the particular decision. This becomes significant below.


2. There was also an argument that prorogation is a “proceeding in Parliament” and therefore immune from judicial questioning under s 9 of the Bill of Rights 1689. The UKSC decides for quite technical reasons that prorogation is not a proceeding in Parliament. It certainly seems right that the decision by the PM to advise prorogation is not a proceeding in Parliament.


3. The standard: the Court describes this as a standard which can be applied. It does seem rather full of evaluative terms however. There seems plenty of room for legal advisers to give conflicting advice on all but the most extreme sets of facts. There also seems to be an unstated assumption that Parliament sitting more or less continually except for recesses is an unmitigated Good Thing. There is not a moment’s consideration of any counter-argument.


4. The counter-argument is summed up in American Judge Gideon Tucker’s famous comment “No man’s life, liberty or property are safe while the legislature is in session”. Or as Mel Gibson’s part in The Patriot puts it: “An elected legislature can trample a man’s rights as easily as a king can”. In Switzerland the legislature is scheduled to sit just twelve weeks each year and extensions or special sittings can only be called for for specified reasons. Many US State constitutions restrict the number of days the State legislature can sit each year for this reason.


5. Here, the issue is more than a suspicion that the Remainers in Parliament are using parliamentary processes deliberately to undermine the government’s negotiating position with the EU. The main point under 1 and 2, however, is that this is undoubtedly new law. The issue had never arisen in Court before and there were good reasons to think that the courts would decide that the matter was non-justiciable. The PM can justifiably feel that the goal-posts have been moved.


6. Did the prorogation have the effect referred to? The Court stresses that this was not normal circumstances. But that cuts both ways. The evidence was that the PM considered the number of sitting days before 31 October and considered that there was plenty of time for the House to debate Brexit especially bearing in mind that until there is a Queen’s Speech there is nothing else for the House to do. So the situation is abnormal in that latter respect as well. The prorogation was to be for five weeks out of the intervening eight but three of those weeks would have been taken as recess anyway for the party conferences. The Court speculates that MPs might have decided not to have the conferences but this is just that – speculation. The situation is also abnormal in the sense that the Fixed Term Elections Act has had the effect that Parliament can vote down every proposal the government makes but without moving a motion of no confidence which would precipitate an election.


7. The evidence: the Court did not make a positive finding that there was no good reason for the lengthy prorogation; it said only that it had not been presented with any evidence of a good reason. Courts can only make decisions on the evidence put before them by the parties. The internal memos written in 10 Downing Street are focused on calculating the number of sitting days rather than on explaining what the purpose of the prorogation was. The PM produced no affidavits on that topic in the High Court. Neither he nor the other memo writers understood at the time that they had to record a good reason for prorogation. Now they know, they will simply write good reasons into their policy documents. In fact, as some of the less histrionic commentators pointed out, legally speaking the PM could prorogue again, doing it better this time. But that is not something the media or public would understand.

General comment: the decision is far narrower than the media make out and in the end focuses on process rather than the substantive decision. I must say that given the marginal nature of some of the issues mentioned above, I am surprised that the decision was unanimous.

Post-script: I have already heard one commentator on the BBC asking “who are these judges? How do they get appointed?”. The spectre of American style confirmation hearings and of media attention to judges’ track records is one very good reason why courts have kept well clear of political issues. Let us hope that the UK Supreme Court has not opened Pandora’s Box.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at www.stephenfranks.co.nz.