Parliamentary Committee considers remit of the proposed Constitution, Democracy and Rights Commission

The House of Commons’ Public Administration and Constitutional Affairs Committee (the “PACAC”) is conducting a Call for Evidence as part of its inquiry (the “Inquiry”) in relation to the commitment in the 2019 Conservative Party manifesto (at page 48) that the Government would establish a Constitution, Democracy and Rights Commission (the “Commission”).

Background

According to the manifesto commitment, the Commission’s purpose would be to make proposals “to restore trust in our institutions and in how our democracy operates”. The manifesto stated that the role of the Commission would be to examine: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. It appears the intention was that the Commission would also “update” the Human Rights Act and administrative law, as well as ensure that judicial review is “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.

The Government subsequently announced that it had appointed a panel of experts to examine whether there is a need to reform the judicial review process and there was a Call for Evidence by the Government’s Independent Review of Administrative Law (the “IRAL”; see Public Law Notes updates of 3 August 2020 and 27 October 2020). As regards the remaining commitments, the Government has made no announcements about the form or timing of the Commission except in the Queen’s Speech.

The Call for Evidence seeks submissions on the form which the Commission should take, its main purpose and output, and any particular issues which should be a priority for the Government. This Call for Evidence gives members of the public the opportunity to have their say and influence the findings of the Inquiry.

Evidence to the Inquiry

Oral evidence has been given to the Inquiry by a number of individuals including Lord Sumption, former Justice of the Supreme Court, and academics.

The focus of the oral evidence given so far has been on what should be the priorities for the Commission. The suggestions covered a broad array of topics including (among others):

  • The context of the reforms that the Commission would consider in that Brexit is “affecting the relationships between the different institutions in the Constitution” in any case and so it may be sensible to consider significant constitutional issues at this juncture;
  • The opportunity to “rebuild public trust” in the institutions following the divisive Brexit debates;
  • The electoral system;
  • The House of Commons’ ability to control the legislative agenda;
  • The implications of the Human Rights Act 1998;
  • The separation of powers;
  • The role of the public and how the public might be engaged with the Commission;
  • Whether the Government is approaching the issues which the Commission will consider with an open mind.

The PACAC has not yet stated when the findings of the Inquiry will be published.

Selecting a tactical or strategic approach to constitutional reform

The New Labour Government’s constitutional reform programme in the 1990’s and 2000’s took what some have described as a “piecemeal” approach as it introduced devolution, enacted the Human Rights Act 1998; established a freedom of information regime and reformed the House of Lords. Given the pressure of COVID-19, the Government may find that it does not now have the time to consider constitutional reforms in the round. Therefore, there is a real possibility that this Government could replicate New Labour’s approach, by thinking about issues tactically and thus leaving some dissatisfied.

Evidence given to the Inquiry by Professor Russell, Director of the Constitution Unit at University College London, suggested that there has been a “sort of scattergun” approach by Government, including proposals such as moving the House of Lords to York; abolishing certain regulators or weakening their powers; and establishment of the IRAL. Further, there have been reports over the weekend that the Government is backing plans to reform the Supreme Court by reducing the number of Justices and renaming the institution. Lord Lisvane, a Member of the Constitutional Reform Group Steering Committee, has also suggested that the overlap between the Commission and the IRAL is “a recipe for unconstructive confusion”.

Lord Lisvane has rightly pointed out to the Inquiry the potential scale of the Commission’s remit:

The daunting thing about what is proposed is the sheer size of the canvas. As soon as you start unpacking the individual elements they expand further. For example, how do you do Government and Parliament relations without looking at the devolution settlements? How do you do access to justice for—in the condescending phrase—ordinary people without looking at the structure and resourcing of the justice system and legal aid? As soon as you start looking in more detail, the sheer size of the task starts to increase. I think that that is going to be a major challenge…

The Call for Evidence closes on 16 November. It will be interesting to see how the Committee’s findings fit with the remit of and any recommendations made by IRAL, which is due to report back later this year.

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Supreme Court unanimously holds that extended prorogation of Parliament is unlawful

In R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, the Supreme Court found that the Prime Minister’s advice to Her Majesty to prorogue Parliament for an extended period was unlawful and void, and quashed the consequent Order in Council effecting the prorogation.

Key Points

  • It is the function of the Court to determine the limits of prerogative powers, which can be by reference to common law principles.
  • Parliamentary sovereignty and Parliamentary accountability are both common law constitutional principles which will be protected by the Court where necessary.
  • The Government must provide a reasonable justification for any attempt to frustrate or prevent the exercising of these constitutional principles.

Background

On 27 or 28 August 2019, the Prime Minister formally advised Her Majesty that Parliament should be prorogued for a period starting between 9 and 12 September until 14 October 2019. The Prime Minister announced the decision on 28 August 2019 and sent an explanatory letter to all MPs. An Order in Council effecting the prorogation was made that same day.

Mrs Miller immediately challenged the decision by way of judicial review and it was heard by the Divisional Court on 5 September 2019. The Court found against Mrs Miller but allowed her appeal to leap-frog to the Supreme Court.

Joanna Cherry QC MP and a cross party group of 75 MPs had separately, and pre-emptively, brought proceedings in Scotland on 30 July 2019 in relation to the same matter. The claim was initially dismissed by the Outer House of the Court of Session on the basis that it was not justiciable. It was then appealed to the Inner House of the Court of Session, where it was determined that the case was justiciable and, further, that the decision was unlawful as it had been tainted by improper purpose.

Both decisions were appealed to the Supreme Court and were heard by the Court on 17 – 19 September 2019.

A number of interveners also argued that prorogation was unlawful. These included The Right Honourable Sir John Major KG CH (for whom Herbert Smith Freehills acted), the Lord Advocate (on behalf of the Scottish Government), the Counsel General for Wales, Raymond McCord (a victims’ campaigner in Northern Ireland), the Shadow Attorney General (Baroness Chakrabarti) and the Public Law Project.

Judgment

The Supreme Court determined that the Prime Minister’s advice to Her Majesty to prorogue Parliament was justiciable and, due to the effect that it had on Parliament, unlawful.

Justiciability
The first question concerned whether the Courts were allowed to review the lawfulness of the Prime Minister’s advice to Her Majesty the Queen i.e. is it justiciable.

It was not disputed that the Prime Minister’s advice to Her Majesty fell within scope of his prerogative powers. When determining whether the exercise of this power was justiciable, the Court set out the two relevant questions. The first related to whether a prerogative power existed and, if so, to what extent. If it was accepted that a prerogative power did exist, as it did here, the second question was whether the exercise of that power was open to legal challenge on “some other basis” [35] (i.e. one of the recognised grounds of judicial review). The Court found that the first question as to the limits of a prerogative power undoubtedly lies within the jurisdiction of the courts. However, in relation to the second question, where prerogative powers were being exercised within their legal limits, their subject matter might mean that they were not amenable to judicial review. For example, a matter of ‘high policy’ would fall within such an excluded category.

In this instance, the question concerned the legal limits of the power to prorogue Parliament and whether they had been exceeded. Such questions were a question of law for the Court to determine. It was the Court’s function to determine whether the Prime Minister’s advice had trespassed beyond that limit. It was therefore, by definition, a justiciable question.

Lawfulness 
Having determined that the issue was justiciable, the Court went on to consider the lawfulness of the Prime Minister’s advice.

The power to prorogue is limited by the constitutional principles of Parliamentary sovereignty and Parliamentary accountability with which it would otherwise conflict. The Court therefore imposed the following test: “…a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive” [50].

The Court did not think it necessary to consider whether the Prime Minister’s motive or purpose in advising Her Majesty to prorogue for this period was lawful, instead it looked at the effect of the decision.

This particular prorogation, the Court noted, prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and Exit Day on 31 October 2019. Moreover, documentation disclosed by the Government did not explain why the prorogation was five weeks long when a usual prorogation was four to six days. In other words, there was no reasonable justification provided for the Prime Minister’s advice to the Queen. In the absence of “any reason – let alone a good reason” [61] for the length of the prorogation, the Court found the decision unlawful.

Remedy

The Court concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. Consequently, it found that the Order in Council was also unlawful, void and of no effect and was to be quashed. In practical terms, Parliament had not been prorogued.

The Court disagreed with the Government’s submission that the prorogation would still stand if the Prime Minister’s advice was found to be unlawful. It did not agree with the fact that the Order in Council would be protected as a “proceeding in Parliament” which could not be impugned by a Court under Article 9 of the Bill of Rights 1688, simply because it took place in the House of Lords chamber.

Comment

This judgment is of immense constitutional significance. It reviews the relationship between the three branches of State – the judiciary, Parliament and the executive – and clarifies the limits on the executive’s prerogative powers. It builds on cases such as R (UNISON) v Lord Chancellor [2017] UKSC 51 in order to contribute to “the constitutional history of this country [which] is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body” (Lord Browne-Wilkinson in R (v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513 at p552). Having said that, the Court was keen to stress that the facts in this case were exceptional and it remains to be seen whether the Court’s findings will be able to be applied more widely.

Herbert Smith Freehills LLP represented The Right Honourable Sir John Major KG CH in the above case as an intervener in both the Divisional and Supreme Courts.

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