The Lodestar of the Constitution
Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members....
The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.
-- Lady Hale, Miller/Cherry v Prime Minister  AC 373
On 28 August 2019 three government ministers raced a court messenger to Balmoral Castle. Literally raced. The ministers were admitted, met with the Queen and came out with the authority to close down parliament. The messenger was blocked by armed guards. Had he been allowed past the gates he would have informed Her Majesty that the ministers’ advice was unlawful. Less than a month later, the Supreme Court would confirm this message.
Thus began the cases of Cherry v Advocate General (in Scotland) and Miller v the Prime Minister (No. 2) (in England), collectively known as ‘the prorogation case’. In Scotland, the Court of Session (the Scottish Court of Appeal) found the prorogation unlawful. In England, the High Court disagreed. The Supreme Court was asked to break the deadlock. It had to look into the very heart of our constitution and answer two fundamental questions: is the UK a democracy and, if so, what does that entail?
In June 2016 the UK voted to leave the EU, kicking off a two- year negotiation about the terms of exit. The government said it would be the ‘easiest negotiation in history’.
Two years later there was still no agreement. During the referendum Brexit campaigners insisted that ‘absolutely no one’ was advocating a ‘no-deal Brexit’. Nevertheless, in the summer of 2019, the government began to consider doing just that.
Parliament couldn’t agree on what it wanted. But it was very clear about what it didn’t want: a no-deal Brexit. Accordingly, when no agreement was reached in the spring of 2019, parliament forced the May government to seek a series of extensions to the Brexit deadline until 31 October 2019.
In response, a small number of hard-right MPs, commentators and think tanks suggested that the UK should embrace a no-deal Brexit. If parliament didn’t like it, parliament should be closed down (‘prorogued’) until Brexit was accomplished.
The last British leader to shutter a parliament because it disagreed with him was Charles I (in 1629), so this proposal met with some raised eyebrows. For Matt Hancock, it went ‘against everything those men who waded onto those beaches [during the Normandy Landings] fought and died for – and I will not have it’. For Sajid Javid, it was ‘trashing democracy’. For Michael Gove, it ‘would not be true to the best traditions of British democracy’. Nevertheless, in the summer of 2019 the new Prime Minister, Boris Johnson, began putting together a plan to prorogue and Hancock, Javid and Gove, all given jobs in Johnson’s cabinet, made no complaint.
That’s where I came in. MPs didn’t want to shut down parliament but Johnson did it anyway. Legislators had no option but to ask the courts to step in. A cross-party coalition of seventy eight parliamentarians from across the UK did just that. They were led by Joanna Cherry QC MP, the SNP’s justice spokesperson, and coordinated by Jolyon Maugham QC, the Director of the Good Law Project (an NGO which brings legal claims in the public interest).
I joined their legal team in July. We were led by Aidan O’Neill QC, a legend of the public law bar. The claim would begin in Scotland (in the Court of Session) but concerned UK-wide issues. Aidan was, therefore, to be assisted by two junior barristers, one qualified in Scots law (David Welsh) and one in English law (me).
The government beat us to the punch. Johnson sent his ministers to Balmoral before the courts could determine the legality of his plan, the Queen confirmed his decision to prorogue and Johnson quickly dismissed parliament. The prorogation prevented legislators from scrutinising his Brexit negotiations and allowed him to rule by fiat for at least five weeks. It was the longest prorogation (without a general election) in more than half a century. For the first time since 1629 (when Charles I ruled without parliament for eleven years, sparking the English Civil War), the executive had used the power of prorogation to prevent MPs from blocking its agenda.
At this point the legal fight began in earnest. My task was to distill exactly how Johnson’s prorogation stuck a knife into the heart of British values. Aidan’s advice: start with Robert the Bruce.
Accountability: Turning Theory Into Reality
The government’s lawyers sought to wind the clock back to a time before executives were subject to the law. They argued that prorogation was a ‘political’ question and that only parliament could hold the government to account. Their case did not survive first contact with reality. Parliament, being prorogued, cannot un-prorogue itself. The only body to which, according to its lawyers, the government owed any responsibility, had already been closed down. It was a legal argument on a par with ‘Catch-22’.
The government’s case forced us to grapple with another constitutional concept: accountability. You can have all the constitutional rules, principles and statutes you like but if ordinary citizens can’t make sure the government complies we may as well not have a constitution at all. Accountability, therefore, turns constitutional theory into constitutional reality.
In the UK we primarily hold power to account in two ways.
On questions of politics and policy we hold the government accountable through parliament (i.e. we elect MPs and they hold the government to account on our behalf). On questions of law, we hold the government to account through the courts. Prorogation was a question of law: had the Prime Minister acted within the scope of his power to prorogue?
We responded to the government’s case with three points. First, the fact that the case would have political consequences didn’t make it a ‘purely political’ matter. The court’s job was to adjudicate on the law. If the government had broken the law then the court must rule against it, regardless of any political embarrassment to ministers. Second, the courts and parliament have different constitutional roles. Parliament makes law and the courts determine whether that law has been broken. If the government had acted unlawfully, it must answer to the courts. Third, the government’s case would mean that it could prorogue parliament whenever it wanted to avoid parliamentary scrutiny. This clearly violated democratic constitutional principles.
The Supreme Court agreed with us on all three. Having determined that the question was justiciable (i.e. one that was appropriate for the court to answer), the judges went on to determine whether the government had acted unlawfully. Clearly prorogation is not, in and of itself, unlawful. The government has the power to prorogue and is entitled to use it. But it can’t go beyond the extent of its power or use it unlawfully. The question for the court, therefore, was whether the power to prorogue could be used in any way the government wanted or whether it was limited by constitutional principle. In particular, could the power be used with the effect of preventing scrutiny of the final phases of the Brexit negotiations?
The Supreme Court relied on two key constitutional principles: parliamentary sovereignty and parliamentary accountability. As Lady Hale described them:
The first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply...prerogative powers are limited by the principle of Parliamentary sovereignty....
The same question arises in relation to a second constitutional principle, that of Parliamentary accountability.... As Lord Bingham of Cornhill said in the case of Bobb v Manning  UKPC 22 at the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy... the policies of the executive are subjected to consideration by the representatives of the electorate... and citizens are protected from the arbitrary exercise of executive power.
At this point the case became very simple: obviously the prorogation ran contrary to the principles of parliamentary sovereignty and accountability. Parliament can’t hold the executive accountable if the executive can send it home whenever things get a bit controversial.
The court accepted that sometimes it may be necessary for parliament to be prorogued for longer periods (such as in a time of war). It therefore had to consider whether the prorogation had a ‘reasonable justification’. According to the government, it needed to introduce a number of new bills to parliament and could not do so unless the current session was ended and a new one begun. As Lady Hale pointed out, however, the government could have achieved out, however, the government could have achieved this aim with a prorogation lasting a few days.
There was no reasonable justification for a prorogation which lasted five weeks. The case was over. We had won. More importantly, we had re-established a key principle of the democratic constitution: that the government could not rule without the consent of (and accountability to) the governed. Unfortunately, as we were about to be reminded, just as we are capable of establishing democratic norms so we are capable of abandoning them.