(Bloomberg Opinion) -- It was no great surprise that the decision by Boris Johnson on Aug. 28 to prorogue, or suspend, the U.K.’s parliament for five weeks ended up in court. Not only was it to be the longest period of suspension for many decades, it came at a time when the clock was ticking toward the Oct. 31 Brexit deadline.
And yet Tuesday’s Supreme Court ruling that the British prime minister’s suspension was unlawful is also controversial; it too broke with precedent and will have far-reaching implications. In taking the court into uncharted waters (even if it was in the name of defending parliamentary sovereignty), the court risks being seen as having set a precedent in favor of judicial interference in the business of government.
This was the first time that a decision by the monarch advised directly by the prime minister has been found to be “justiciable” — that is, a matter for the courts. Perhaps the closest Britain got to something of this sort was the decision of Home Secretary Michael Howard, in 1994, not to advise Queen Elizabeth II to posthumously pardon Derek Bentley, who was hung for the murder of a policeman in 1953 in a case whose controversy persisted for decades. While pardoning is a prerogative of government, the Bentley case involved a quasi-judicial decision.
In its recent ruling on prorogation, which was overturned by the Supreme Court decision, the English High Court distinguished between cases concerning “particular individuals” (such as Bentley) and those concerning “high politics” — wider political issues where the courts should not intrude. Citing one of the country’s great jurists and a member of the House of Lords, Thomas Bingham, the court noted that he had ruled that the more political the question, “the more appropriate it will be a for a political [rather than a] judicial decision.”
The Supreme Court, on the other hand, went where the High Court refused to tread. Its reasoning began with a 17th Century ruling that the King could not suspend legislation by his “proclamation” — which the Supreme Court used to illustrate the power of the courts to restrict political decisions. The Court (which also cited Lord Bingham in its decision) drew attention to the fact that it was being asked to protect Parliament’s ability to legislate and hold the government to account; and it later rejected the argument that it was prevented from deciding the case under Article 9 of the Bill of Rights, which protects the “privilege” of parliamentary proceedings from scrutiny by the courts, because prorogation was an act by the Crown suspending Parliament, not proceedings within it.
The Supreme Court also relied on cases where the Crown was prevented from “frustrating” the purpose of an Act of Parliament, including the 2017 Supreme Court decision, also brought by the activist Gina Miller who challenged the prorogation, in which the court ruled that Parliament must have a say in leaving the European Union in order to comply with the 1973 European Communities Act (by which the U.K. joined the then European Economic Community, the precursor to the EU).
The Supreme Court gave little consideration to the High Court’s argument that these previous decisions largely concerned preventing the Crown from effectively overriding legislation – not curtailing the ability of Parliament to meet. Nor did the court deal with the High Court’s warning that it was not equipped to adjudicate where political decisions were concerned.
Political decisions of wide consequence involve varied considerations of policy and principle that are the field of a democratically elected government, not the courts. Moreover, that government only remains while it retains the confidence of the House of Commons (which the House could have withdrawn in September); and can be replaced by an election (which the House was asked to authorize but refused to permit).
The decision will be controversial in other ways too. The judges, whose ruling was unanimous, did not restrict themselves to saying that the courts could judge only the effect of prorogation. Rather, they found that if the effect appeared to “frustrate or prevent Parliament’s ability to perform its legislative functions and its supervision of the executive” the courts must then consider the explanation the prime minister gives for his advice to the Queen. The reasoning behind a decision to prorogue is inevitably highly political; while the court said it would have to consider such justification “with sensitivity” it gave no indication of how such an inherently political decision should be scrutinized in the future, only that Johnson’s failed to meet the test of reasonableness.
The British constitution has traditionally included a large area of decision-making by government that has been regulated only by convention and not by the courts. No court has ever seen itself as the “guardian” of the constitution — unlike in the U.S. or other countries with codified constitutions. In that way, the courts have avoided the charge of politicization.
That tradition has now been broken. Tuesday’s decision poses two risks: that Supreme Court decisions become politically controversial; and that the public will then question the opinions and appointment process of those making them. Whether or not people cheer the outcome of this particular decision, neither longer term consequence should be welcome.
To contact the editor responsible for this story: Therese Raphael at traphael4@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Francis Hoar, a member of Field Court Chambers, is a barrister who specializes in election law and advised participants in the EU referendum campaign.
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