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BREXIT: The UK Supreme Court Becomes an Exemplar of Adjudication

October 5, 2019

The following article was authored by Advocate Nipun Saxena who practices at the Supreme Court of India. The article was originally published here, by The Leaflet. We strongly encourage our readers to visit The Leaflet on their website here for a lot of content related to law, human rights, and more. The Leaflet was founded by Indira Jaising and Anand Grover - two of India's senior most lawyers and legal luminaries practicing in the Supreme Court of India. Polemics and Pedantics also conducted interviews with Mr. Nipun Saxena which can be accessed here.

 

 

On September 24, the Supreme Court of the United Kingdom delivered a historic verdict, a verdict which not only consolidated the core ethos and conventions of democracy, but also echoed the sentiments of Professor A.V. Dicey on Rule of Law, which still reverberates in the corridors of the Balliol College, Oxford University, situated not more than sixty miles from the place where the historic verdict was delivered.

 

The decision is also colossal in its amplitude, for the eyes of all democracies that have adopted the Westminster System of governance were fixated on the outcome, and realizing that the impact of this decision will be felt beyond the realms of the English Channel, a bench of eleven honourable judges was constituted to decide on the legality of proroguing the House, and whether the same was amenable to judicial review.

 

Background of the controversy

 

It is necessary to give a brief context to the controversy. As we are aware that the United Kingdom is in the process of charting out its Exit from the European Union pursuant to a referendum held on June 23, 2016, where a majority of people elected to opt-out of the European Union. On what terms, what timelines, and what conditions would it be carried out would have wide scale ramifications on the populace of both England as well as the European Union. Thus, it was all the more necessary and crucial that the Bills so tabled before the Parliament would undergo deliberations, debate and an informed consultative process, in both houses of the Parliament before the Bill is put to vote. This assumes even greater importance since the “exit date” of the United Kingdom from the European Union is ordained for October 31 in terms of the Withdrawal Act, 2019 and Article 50 of the Treaty of the European Union.

 

Legally speaking, Section 13 of the European Union (Withdrawal) Act, 2018 prescribes four stages cum requirements before the Executive’s proposal to “Exit” could be ratified by the Parliament. These four stages are:

  1. A Minister of the Crown informs the Parliament that an agreement has been reached between the Government and the European Union on the terms and conditions of the withdrawal agreement and has to also submit a copy of the framework for the future relationship ;

  2. The House of Commons then approves the Withdrawal Agreement as well as the Framework for Future Relationship;

  3. The House of Lords has taken note of these two documents;

  4. An Act of Parliament has been passed which contains provisions for the implementation of the Withdrawal Agreement

This withdrawal agreement was completed in November 2018. However, it had been rejected by the House of Commons on 15th January, 12th March and 15th March 2019. Under the present circumstances, the Government was unsure whether the said Withdrawal Agreement could be passed a fourth time, considering the deadline for “Exit Day” was fast approaching. This assumed a near certainty from the date on which Mr Boris Johnson assumed the office of the Prime Minister, i.e. from 24th July 2019.

 

One way to do away with having to deliberate the Bill at all, was to advice the Queen to issue a prorogation. The power to issue a prorogation also finds mention under Article 85(2)(a) of the Constitution of India where such a power is vested in the President of India acting on the aid and advice of the Council of Ministers. The effect of prorogation on the proceedings of the Parliament is the same in both India and England. When the Parliament is prorogued, neither House can hold its session, debate or pass legislation. In general, Bills which are pending at any stagelapse and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off.

 

Chronology of the events leading up to the decision

 

Presumably so, there were legitimate apprehensions amongst the legislators that the Prime Minister through the Council of Ministers would advice the Queen to prorogue the House, on those crucial dates when the Bill is to be deliberated upon. A group seventy-five parliamentarians and a Queens Counsel petitioned before the Inner House of the Court of Session in Scotland on 30th July 2019. It is notable to mention that these seventy five parliamentarians belonged to a cross party group, i.e. to say they did not hail from one political party. The intent was clear. It was to save the parliamentary process from the Executive control.

 

As luck would have it, on 15th of August, 2019 a memorandum was sent to the office of the Prime Minister with a recommendation to prorogue the Parliament, which was ticked YES on that recommendation. Soon thereafter, on 27th of August 2019 at 6:00 PM, the Prime Minister telephonically (read officially) informed her Majesty, to prorogue the Parliament for the period commencing from 12th September 2019 to 14th October 2019. A meeting was convened by Her Majesty and an Order in Council was issued on the very next date. The Cabinet was informed on the very same day, and so was the public. This undue haste was uncharacteristic and lead to filing of a second petition by Mrs. Gina Millers, before the High Court of the England and Wales challenging the said issuance of prorogation.

 

The contentions and the legal controversy

 

While the petition of Mrs. Gina Millers was dismissed, the one preferred by Seventy Five Parliamentarians was allowed.  While allowing the petition by the Cross Party Group, it was held that the advice given to Her Majesty was subject to judicial review, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive, and that both the advice and the prorogation which followed it were unlawful and thus null and void and of no effect. Whereas, the appeal preferred by Mrs. Gina Miller was dismissed on the ground that the Court could not have decided the issue as the advice, as well as the prorogation that followed, was non-justiciable. However, while dismissing the petition, the High Court issued a leap – frog certificate to Miller to pursue her appeal directly before the Supreme Court of the United Kingdom.

 

In addition to the two appeals, a total of six intervention applications were filed and it was decided that a bench of Eleven Honourable Judges would be constituted to address the unprecedented controversy on account of which the entire Parliament stood in a suspended animation. Furthermore, time was of utmost relevance because the proverbial apocalyptic “Exit Day” was not far off, and therefore it was crucial to decide whether the bill would have enough time to witness deliberations, or whether the Executive could through this innovative tactic and save the bill from the fate that it had previously met in the last three previous occasions.

 

The questions before the courts were simple:

  1. Whether the advice of the Prime Minister to issue prorogation by the Crown would be subject to judicial review? and;

  2. Whether a motion to prorogue the Parliament will not fall within the realm of “parliamentary proceedings” and would enjoy immunity from judicial review?

While the Inner House of the Court of Session in Scotland held that the motion of prorogation was justiciable, i.e. it could be reviewed by Courts, the High Court of England and Wales held otherwise. Against the decisions, two appeals were preferred which were admitted and heard together and was disposed off by a common judgment authored by the President Justice Lady Hale on behalf of ten other Hon’ble Judges, the maximum number of serving Justices who are permitted to sit in a unanimous 11 – 0 opinion.  It is pertinent to mention that given the urgency of the situation Mrs Miller’s appeal against the English decision and the Advocate General’s appeal against the Scottish decision were heard by the Supreme Court of the United Kingdom from 17th to 19th September and the verdict came to be delivered on 24.09.2019, i.e. yesterday.

 

 

 

The argument advanced on behalf of the Counsel for the Prime Minister was that the Courts have no power to judicially review the advice of the Prime Minister, and that the Prime Minister in a parliamentary democracy is only accountable to the Parliament. It was further argued that the nature of advice being a political question was beyond the scope of the Court’s power of review.

Per Contra, it was argued that the Courts have the power to exercise judicial review. What was being sought to be reviewed was not the prorogation itself, but the advice that the Prime Minister gave to Her Majesty which was a subject matter of judicial review.

 

The Verdict: Consolidating the rule of law and battling anomalies

 

The Supreme Court of the United Kingdom entered into a four step inquiry while rejecting the contentions of the Executive before proceeding to lay down the law.

 

In Re: What is sought to be Judicially Reviewed?

The Court unequivocally clarified that it was not the decision to issue “Prorogation” which was the subject matter of controversy, as much as the “Advice” on the basis of which such prorogation came to be issued. The power to issue Prorogation is a prerogative power which has been vested in Her Majesty, and therefore the same is not a matter of controversy in the present proceedings. What is, however in issue is the nature of “advice” tendered by the Prime Minister which can be made amenable to judicial review. If this is held to be so, and if it is found out that the advice was illegal, then every action taken pursuant to the said advice will also be void (including the decision to issue prorogation). Since under the Constitutional Convention, the Queen is bound by the advice so rendered by the Prime Minister, the Supreme Court chose not to dwell into the question of judicial review of the prorogation itself.

 

In Re: Fate of Political Questions

The Supreme Court of the United Kingdom gave a decisive finding that although the Court normally does not entrench into questions which are political questions, however it proceeded to hold that “the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it.”[1] The Supreme Court placed its reliance on the casus classicus, Proclamations Case (1611) to hold that even where the political undertones in the case would call for a civil war would not deter the Courts from reviewing the legality of those political questions and decisions.

 

In a way, the Court concomitantly decided the ancillary issue that it kept open in the previous paragraph. The Supreme Court of UK held that even if prerogative powers were exercised (such as those by the Crown in the present case), the Supreme Court had every power to review the same. The Supreme Court gainfully reproduced the conclusion in the Proclamation Case (supra) to hold “The King hath no prerogative, but that which the law of the land allows him”.

 

In Re: Role of the Prime Minister in a functional democracy

The Supreme Court of the United Kingdom unanimously rejected the notion that the Prime Minister’s accountability is only restricted to the Parliament and proceeded to hold that an action of the Prime Minister will also be a subject matter of judicial review. The two reasons for arriving at the said reasoning were that the effect of Prorogation was to seek immunity from the accountability of the Council of Ministers including the Prime Minister from Parliament while such a prorogation was in force. By the time, the prorogation would have ended it would have been too late in the day to save anything, and the clock would not have been reversed, for any accountability would arise only when the new session of Parliament would commence, by which time the Government’s purpose in having Parliament prorogued might have been accomplished.[2]

 

The second of reasons is a sequitur to the first. The Courts are under a Constitutional duty to examine the legality and propriety of an act of a Minister, howsoever high he may be. To carve out such distinction, the opinion of Lord Justice Diplock in the matter of R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd[3]was relied on, which carved out the distinction between the accountability of a minister to the Parliament vis a vis the accountability of a Minister to the Courts of Law in the following words:

 

“They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”[4]

 

In Re: Separation of Powers 

The UK Supreme Court thereafter proceeded to hold while adjudicating the dispute it was performing the function as was ordained under the principle of Separation of Powers. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.

 

Excluded categories from judicial review

 

It was argued that the power to advice to issue prorogation is prerogative and therefore falls within the “excluded category” where judicial review is impermissible. In so doing, the opinion rendered by Lord Roskill in Council for Civil Services Union case was relied on. Rejecting this argument, the Supreme Court held that the prerogative powers are limited by and subject to Parliamentary Sovereignty. Thus, where a prerogative power takes away or otherwise impairs the functioning or otherwise prevents or frustrates the functioning of parliament[5] or otherwise impinges on Parliamentary Sovereignty, the Courts will be well within their powers to declare such an action illegal.

 

The next question which the Supreme Court of the United Kingdom answered was whether in the present case, such advise to issue prorogation was in fact lawful or not. The Supreme Court of UK clearly recorded that it was clear from the intention of the Prime Minister that the prorogation was not a prorogation simpliciter but a prorogation which was with a view to prevent the Parliament from enacting any legislation that could have prevented the United Kingdom from leaving the European Union without a Withdrawal Agreement, since such similar exercises had been rejected on three previous occasions by the House of Commons. Coming to the legality of it, since the advice given by the Prime Minister itself was without any cogent reason, on the basis of which the decision to Prorogue the House was taken, the said advice would have to be declared unlawful.

 

In Re: Immunity of Parliamentary Proceedings from Judicial Review

 

It was thereafter argued that prorogation itself was a part of the parliamentary procedure, and by virtue of Article 9 of the Bill of Rights of 1688, the proceedings of the Parliament could not be called into question before any Court. This argument was squarely rejected by holding that an “advice” to issue prorogation would not fall under the expression “parliamentary proceedings” since parliamentary proceedings only referred to a collective decision passed by the House of the Parliament and not the advice made to the Crown to prorogue the house.

 

Furthermore, Prorogation is not something which can be regarded as part of “parliamentary proceedings but is contrary to what parliamentary proceedings mean, since the very proceedings come to a standstill on account of such prorogation. The prorogation in essence disrupts the parliamentary proceedings and is therefore not immune from judicial review. Consequently, if the very advice was bad in law, then the decision passed by the Council was bad, and so was the prorogation.

 

Conclusion

 

The decision is historic in terms of defining and outlining the powers of the Prime Minister to advice the Crown to issue its prerogative powers. The Supreme Court of United Kingdom has judicially reviewed and examined the scope and limitation of such power, given that once such advice is tendered, there is no option for the Nominal Head to substitute it with its own opinion. The question therefore is whether the same could then be made applicable to other democracies, including ours where an almost similar provision conferring an almost similar power finds a specific mention in the Constitution. This assumes considerable significance because there is a corresponding constitutional duty imposed on the President of India to only act according to such aid and advice. If the President of India refuses such an advice, or decides to act contrary to the same, then that would tantamount to violation of the Constitution, a ground under which the President could also be impeached under Article 61.

 

There are further questions as to what happens with the new meaning given to the expression “parliamentary proceedings”. Would the power of judicial review extend to these proceedings, when there is a specific embargo in the Constitution restricting the Courts from calling into question the proceedings of Parliament. These are questions that will be addressed in the second part of my article.

 

References

[1] Paragraph 31 of the judgment rendered in Miller v. The Prime Minister, [2019] UKSC 41.

[2] Paragraph 33 of the judgment rendered in Miller v. The Prime Minister, [2019] UKSC 41.

[3][1982] AC 617.

[4] Ibid at Pg. 644.

[5] Paragraph No. 50 of the judgment rendered in Miller v. The Prime Minister, [2019] UKSC 41.

About the Author

Mr. Nipun Saxena is a practicing advocate in the Supreme Court of India. He has appeared in various cases with substantial ramifications for our society. In 2012, following the horrific Delhi Gang Rape incident, Mr. Saxena, while still a law student, filed a Public Interest Litigation in the Supreme Court.

 

Today, Nipun Saxena v. Union of India has become a landmark case involving debates on issues ranging from one stop crisis centers, to witness protection programs and regulation of taxi services such as Uber and Ola from the perspective of women's safety. It also led to the imposition of a fine on the Union Government. In addition, Mr. Saxena is also involved in a petition relating to privacy concerns in the Aadhar project of the Government of India. He is also a visiting faculty at his alma mater- The National Law University, Delhi- and has several international publications to his name.

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