Sir Stephen Laws QC is a Senior Research Fellow at Policy Exchange and was First Parliamentary Counsel from 2006-12.
I’m surprised and disappointed by the Supreme Court’s ruling today. In ordinary times, Parliament and Government have a relationship in which each is strong enough to look after itself, as Parliament for its part has amply demonstrated throughout the Brexit process. Political differences between them should properly be settled politically. That is how things normally work, and political solutions are preferable to legal solutions because they concentrate on finding the answer which attracts the widest support, rather than assuming there is a rule which will tell you the right answer and imposing it with an exercise of judicial authority.
The Government did not, as the Supreme Court appear to suggest, seek to withdraw from this relationship. It announced the prorogation to MPs in advance and gave the Commons opportunities to respond, for example, with a vote of no confidence. The Government did not go ahead with plans to filibuster the Benn Bill and made sure that the length of the prorogation conformed to the requirements implied by the Northern Ireland (Executive Formation etc.) Act 2019. In acting this way, the Government demonstrated that it was sensitive to the need to confine itself to what it felt it could justify in political terms. It may have misjudged matters politically, but the right way to remedy that is through accountability, ultimately to the electorate.
The EU referendum introduced a third party into the relationship between Parliament and Government: in the form of the electorate, through the result of the referendum. In other circumstances, the Government and the Commons reflect the view of the electorate, as they both derive their democratic legitimacy from the same election. There is no third party role for the electorate, except to hold both MPs and Government to account for what they do together.
The introduction of this third party complicated matters, because a majority of MPs did not agree with what a majority of the electorate wanted – to leave the European Union. The Government was committed to implement with deeds what other Parliamentarians were committed to do only with words – that is, to respect the referendum result. Introducing a third party into a relationship between two inevitably causes disruption and conflict.
The Supreme Court’s judgement today notes:
“the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons”
If the incumbent Prime Minister does not have the support of the Commons for a major item of Government policy, it is a constitutional requirement that that situation is resolved either by a change of government or by an election. This constitutional reality is not recognised by the Supreme Court in its judgement. No change of Government is practical, because there is no alternative for governing the country that would attract more support in the Commons than the current Government.
So the right solution can only be an election, which the Government offered twice, and was turned down on each occasion on the implausible grounds that the Prime Minister, having offered an election for a date before exit day, would think it was politically worth the risk to arrange it for later.
This reason was at best founded on a misunderstanding of the fact that any election triggered by a no confidence vote put down and debated after the House returned in September, could not lawfully have been fixed for a Thursday before October 31st. The election proposed twice by the Prime Minister could have been fixed for an earlier date, including by legislation specifying as much.
What the Government’s opponents in the Commons have done is to claim a right to pursue a political objective by unorthodox means which they have failed to secure by orthodox means (or because they have left it too late to do so).
The courts have now introduced themselves as a fourth party in the relationship between Parliament and Government, which further complicates matters and is a recipe for more conflict. The more people recruited to join the dispute, the messier it is going to get.
A particularly concerning aspect of today’s judgment is the finding that prorogation is not a “proceeding in Parliament”. This has very serious implications, including for the Royal Assents of Bills because they are also signified by Commission of the same sort as carried out the prorogation commission. Indeed, Royal Assent for one Bill – the Parliamentary Buildings (Restoration and Renewal) Bill etc – was signified by tcommission at the time of the prorogation and so has been invalidated. It is seriously concerning if Acts of Parliament are now open to being set aside if some procedural defect can be found in the procedure for signifying Royal Assent – or in the process that preceded it.
The decision of the Supreme Court that prorogation is not a “proceeding in Parliament” tilts the playing field in favour of opponents of the Government, because while they can rely on the protection of Article 9 of the Bill of Rights 1688 for the manipulation of the rules of the Commons by the Speaker for a political objective, the Government has been denied the opportunity to respond in kind with a proportionate resort to a mechanism available to it, which has been regularly used for overtly political purposes for as long as anyone can remember – e.g. annually killing off private members’ Bills and other unfinished business.
Equally disturbing is the reinforcement of the doctrine that if you can track a lawful act back far enough in its history to find something that can be characterised as unlawful everything else that follows can be undone. So in this case, it was a successful challenge to the Prime Minister’s advice that resulted in the ruling that prorogation was invalid. If every executive decision can be challenged on the basis that somewhere in its history someone gave some inappropriate or challengeable advice, then no one will ever be able to rely on any such decision being lawful with any sort of confidence.