Judicial Review of the Prorogation of Parliament: Miller (No. 2)

On the advice of Britain’s new Prime Minister, Boris Johnson, the Queen signed an Order in Council last week proroguing Parliament from a point between September 9 and September 12 until October 14. A political storm has erupted in the United Kingdom and three court challenges have been launched or accelerated in response. Attention is likely to focus closely this week on the judicial review claim being brought by Gina Miller, she of R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 fame, joined by other political luminaries. But what are her prospects of success on this occasion? She faces an uphill struggle but she might have a plausible case on two grounds.

Justiciability is an imposing hurdle for the claimants, as the issue of prorogation can plainly be said to be one of high policy, a classic “political question”. In “Justiciability and the ‘Political Question’ Doctrine” [2010] Public Law 160, I argued for an approach pursuant to which executive decisions would be “presumptively reviewable” (at 175), but I allowed for two exceptions: decisions would be nonjusticiable where there was a clear commitment of a decision to a particular decision-maker or where a constitutional rule barred review. As I wrote at 169-170:

in the British context one might think of elections, or the grant of a dissolution of Parliament by the Queen to a Prime Minister as evidencing a textually demonstrable commitment and constitutional rule respectively. In the case of elections, the rationality of the electorate’s choice of politicians (which would surely be an enormous area of litigation if justiciable!) cannot be impugned in court because the matter is committed by the British Constitution to the sovereign people. Review of the granting or denying of a dissolution to the Prime Minister by the monarch would be barred by a constitutional rule: either that “the Crown can supposedly do no wrong”; or alternatively that conventions of the Constitution are incapable of giving rise to enforceable legal rights.

As this passage suggests, there is a strong argument that the decision to prorogue Parliament is clearly committed to the discretion of the Crown and thus immune entirely from judicial review. If so, the grounds of review advanced by the claimants will have to fail.

The claimants may nonetheless succeed in circumventing the justiciability hurdle (see also my caveats at 170-172). UK courts have tended to privilege substance over form in reviewing exercises of prerogative power. In R (Bancoult) v Foreign and Commonwealth Secretary (No. 2) [2009] 1 AC 453, Lord Hoffmann made clear that the fact that governmental action took the form of an Order in Council was no bar to judicial review, for in substance the decision to advise the Crown to issue the Order was common garden variety administrative action, “an exercise of power by the executive alone” (at para. 35). The majority opinion in Miller (No. 1), too, was notable for privileging substance over form. The focus on substance over form makes it difficult to anticipate whether a UK Court will find a power to have been “clearly” committed to the discretion of the Crown and, accordingly, to be beyond judicial review. Bancoult (No. 2) is quite clear that even an Order in Council is “subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action” (at para. 35). Indeed, where a claimant can make out a ground of review, concerns about justiciability tend to fade away — many judges who invoke the language of nonjusticiability are dealing with cases where the claimants’ grounds of review are implausible.

However, a decision might be “clearly” committed to the discretion of the Crown and beyond judicial review even though the decision is tainted by unlawfulness. It is notable that Bancoult (No. 2) was really a classic administrative law case, a challenge to an order targeting a group of individuals (the Chagossians, who were prevented by an Order in Council from returning to visit their homeland). The decision was dressed in prerogative form but in substance was no different than (say) a ministerial decision to close a school or hospital. Prorogation can by contrast be characterized as a high policy matter which should not be subject to judicial interference. Canadian courts have, when asked to review exercises of prerogative power, been extremely reluctant to intervene. The key, then, for Miller et al is establishing a ground of review.

This will not be easy. The reason the claimants lost in Bancoult (No. 2) (albeit 3-2 and with Lord Bingham in dissent) was that the power to legislate for overseas territories such as the British Indian Ocean Territory which contains the Chagos Islands is essentially plenary — so how can an exercise of an unlimited power be unlawful or irrational? Here, because the power to prorogue is essentially unconfined, it is difficult to argue that the Prime Minister has an unlawful improper purpose which vitiates his advice to prorogue Parliament. Even if he has ulterior motives (ranging from the achievement of a No Deal Brexit, to using the threat of no deal to force through a renegotiated deal at the last minute) they are not really unlawful motives but are rather perfectly plausible (though of course politically contestable) justifications for prorogation.

Two grounds nonetheless spring to mind. Sir Stephen Sedley has ingeniously suggested that by allowing the Prime Minister to choose the precise date of the prorogation, the Crown has unlawfully delegated its power of prorogation. The power to choose the date, the argument might go, is the Crown’s, not the Prime Minister’s and the Crown cannot delegate this power to a third party (even one who holds high office).

A potential difficulty with this ground of review is the Supreme Court’s decision in R (Sandiford) v Foreign and Commonwealth Secretary [2014] 1 WLR 2697, holding that the non-fettering principle does not apply to exercises of the prerogative, because in the absence of a statute there can be no legislative intention that discretion be exercised freely. By analogy, Sandiford applies to delegation, another ground of review for which legislative intention is very important and arguably essential. But Sandiford’s reliance on legislative intent has been strongly criticised (see e.g. me and Adam Perry). Although delegation cases have always involved a statutory delegate subdelegating its powers, they have not always turned entirely on legislative intent: the classic case of Vine v National Labour Dock Board [1957] AC 488 illustrates that judicial solicitude for individual interests is also important (see especially Lord Kilmuir at 499 and Lord Somervell at 512 and see also Roncarelli v Duplessis [1959] SCR 121, not a delegation case as such but a close cousin at least). Individual interests, both of parliamentarians and of citizens, can be said to be at stake in the context of this prorogation and reduce the scope of any permissible delegation.

A second possibility is inspired by the decision of the Ontario Court of Appeal in Lalonde v Ontario. Here the Court struck down a discretionary decision to shut a hospital because the decision contravened an unwritten constitutional principle (the protection of minorities). Sharpe and Weiler JJA wrote, for example, at para. 184:

The Commission offered no justification for diminishing Montfort’s important linguistic, cultural, and educational role for the Franco-Ontarian minority. It said that matter was beyond its mandate. The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective. While the Commission is entitled to deference, deference does not protect decisions, purportedly taken in the public interest, that impinge on fundamental Canadian constitutional values without offering any justification.

An English court is liable to be more circumspect, but one can perceive a potential analogy with Lalonde. It might be said that prorogation interferes with a fundamental constitutional principle, the sovereignty of Parliament. By shutting down Parliament (and its committees) for several weeks at a critical juncture, the prorogation prevents Parliament from holding government to account and from legislating (inasmuch as this is possible) to prevent a No Deal Brexit.

It will be interesting to see what Miller et al’s legal team comes up with later this week in advance of Thursday’s hearing and what emerges from the parallel challenges in Scotland and Northern Ireland. I was initially sceptical about her prospects in Miller (No. 1), but over time her arguments became stronger, forged in the fire of public debate on blogs and other social media, and the same phenomenon might well recur in the coming weeks.

This content has been updated on September 1, 2019 at 04:30.