The challenge to prorogation is currently being broadcast. I’ve previously been critical of the way that the Supreme Court goes about its business, and the current hearing does not give me any reason to think differently about that. The hearing has been punctuated by confusion about supportive documentation – misleading reference numbers, flapping between paper and electronics, and to cap it, Lady Hale’s computer failure this morning.
Having said that, I am going to take my courage in both hands and try to second-guess the outcome. The government’s submission basically has been to say, ‘hands off’, and the most persuasive part of that case has been a series of previous instances where prorogation has been used politically. And then, I think, the government’s counsel undermined his position, possibly fatally. This is a clip from this morning’s hearing, as summarised in the Guardian briefing.
Eadie says a decision to prorogue parliament is “fundamentally political”. He says the government has given examples, in paragraph 71 of its submission (pdf).
Lord Wilson asks if the court is being asked to intervene in a political decision, or to decide if it clashes with a precious legal principle.
Eadie says sometimes precious principles of public law need to give way when the prerogative is being exercised.
Q [From Wilson]: I was thinking of a bigger purpose. If anyone is well placed to defend parliamentary sovereignty, it is us here. Does the use of the prerogative here collide with a principle that we are obliged to uphold?
Eadie says of course parliamentary sovereignty is important. But it depends on what it means. “Paradigmatically” it can make and unmake its own laws, he says. He says he will argue that the phrase “parliamentary sovereignty” should not be too widely bandied about without people saying what it means.
Let’s unpick that. Lord Wilson offers Eadie a choice: politics versus legality. In the bit that’s not in this summary, Eadie recognises that the judges can intervene where the executive has an improper purpose (which is why LJ Wilson talks about a bigger purpose). But getting round to the question as put, Eadie opts neither to challenge the bifurcation or to defend the prerogative as an element of the British constitution. He says that “precious principles of public law” have to give way – a statement that seems designed to alienate the eleven justices as thoroughly as possible. Then comes the supplementary. Lord Wilson asks about parliamentary sovereignty, “a principle that we are obliged to uphold”. Eadie doesn’t question that the Court is obliged to uphold such a principle – which is surely the point at issue. The point about parliamentary sovereignty is that parliament is supposed to uphold it; the obligation of the Courts is to uphold our constitutional arrangements, and he could here have argued that the duty of the court is to maintain the balance, not to tilt it. In fairness, the QC may not have wanted to draw out the argument, emphasising in the judges’ mind a point which could lead to the collapse of his case; if others agree with Lord Wilson that there is such an obligation, the game is over. But his answer, rather than defending the government’s constitutional role, is that the term ‘parliamentary sovereignty’ is unclear. That effectively challenges the judges to clarify the meaning of the term, and it would be astonishing if they did not do just that. They went most of the way towards it in the previous Miller case, and after all, as Lord Wilson has stated, they see themselves as being under an obligation to protect parliamentary sovereignty. You’ll know whether I’m right about this within the week, but given the way the issues have just been presented, I don’t see how they can possible find in the government’s favour.
Additional note, 24th September: As predicted, the Court has found against the government, citing the principal grounds of parliamentary sovereignty and accountability. The main thing I did not anticipate was unanimity.
The Fixed-Term Parliament Act has not had a good press, and some commentators have condemned it either for making things worse or having no effect (those things can’t both be true at the same time). If it was intended, as Mark Elliott suggested a couple of years ago, to curb the power of governments and increase the power of Parliament, it has just done rather well.
The fundamental premise of the Act is that the business of Parliament should carry on even if no-one has a majority. The Coalition government was evidence there there was an alternative, which was government by a majority coalition. There is another alternative, which is a minority government that limits its programme and proceeds by negotiating with opposition groups; that is what happened in February 1974, when there was no majority, and it was thought of as normal practice in Scotland, where the electoral rules were initially believed to limit the possibility of anyone ever having a majority. Neither Theresa May, nor Boris Johnson, has seemed to be able to grasp the basic idea that “the government” is not “in charge”. The government is a legislative leader and executive, not an autarchy. People have to be won over, and everyone has to compromise. That style of government may be beyond the capacity or wit of the Johnson administration.
The problem for the UK government seems to rest in a choice between two unacceptable options. On one hand, they can treat Northern Ireland wholly as part of the mainland, implying the return of a hard border. On the other, they can treat Northern Ireland is treated differently from Great Britain, allowing for regualtory alignment with the Republic of Ireland. The UK government seemed posed to accept the latter, but it has been resolutely rejected by the DUP:
“We have been very clear. Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.”
There is a third option. The United Kingdom has three devolved governments, each of which already has partial derogations from laws and rules which apply in England. If the British government accepted that there could be a derogation of rules for all three devolved governments, it would no longer be the case that Northern Ireland was being treated differently from the other parts of the United Kingdom. The precise scope of that derogation has to be considered, but the terms and management of the derogation could be delegated to Scotland, Wales and Northern Ireland to resolve. It’s called ‘devolution’.