Britain's Constitutional Crisis

Another legal scholar dissects the judicial coup by the so-called Supreme Court of the United Kingdom.

From First Things

By Paul Yowell

The United Kingdom has a constitutional crisis. Prime Minister Boris Johnson leads a minority Conservative government that is battling with the majority in Parliament over Brexit. Johnson and his cabinet have promised that the U.K. will leave the European Union on October 31, with or without a deal. On Tuesday the U.K. Supreme Court joined the fray with its judgment in Miller v. The Prime Minister, which held that Johnson’s August attempt to prorogue Parliament—ending the current session with a new one beginning five weeks later—was “unlawful, null and of no effect.”

A majority of MPs, including more than twenty Conservatives, oppose Johnson’s Brexit policy. Tory rebel MPs, allied with the Labour opposition—and aided by novel procedural maneuvers approved by Speaker of the House of Commons John Bercow, whose impartiality has been questioned—seized control of the agenda of the Commons in early September. They proceeded to pass legislation that commands the prime minister to again extend the negotiating window under article 50 of the E.U. Treaty—either to January 31, 2020, or another date proposed by the E.U. The original exit date of March 29, 2019, in the European Union (Withdrawal) Act was extended twice by Theresa May after Parliament repeatedly rejected the withdrawal agreement she reached with the E.U.

Johnson’s support base is Leave voters who are growing increasingly impatient with the failure to implement Brexit. Johnson says that he is seeking a deal, but that the option of leaving without one is both legitimate and a necessary bargaining chip to avoid a bad deal. He has said he will “die in a ditch” before he seeks an extension.

All this has led to an unprecedented situation. The negotiation of treaties, and powers of foreign policy generally, are part of the prerogative—that is, powers that are executive in character, which by law belong to the Crown but by convention are exercised by the prime minister and cabinet. The principle of responsible government, the core of the U.K.’s unwritten constitution, requires that the government have the confidence of Parliament. In the absence of a separately elected executive, as in the U.S., such confidence is necessary for appropriate and successful use of executive power, and for the stability of the law and the state. There is a constitutional imperative to have a government in place that has this confidence, and, when it is lost, to move toward a new government as quickly as possible—usually through a general election.

Before the enactment of the Fixed-Term Parliaments Act in 2011, the prime minister could exercise the prerogative power to dissolve Parliament and call an election at a time of his or her choosing. Following the FTPA, a government motion for an election requires the support of a two-thirds majority in the Commons. The opposition retains the power under the FTPA to initiate a vote of no confidence. If such a vote wins a simple majority, then a general election will follow unless another government is formed from and with the support of the current MPs.

After a series of decisive defeats in Parliament affecting key elements of his Brexit strategy, Johnson sought to call a general election. Jeremy Corbyn, the leader of the opposition, refused to agree, and Johnson was again defeated on two successive motions to hold an election. Corbyn has also declined to move for a no-confidence vote.       

The U.K. is now in an extraordinary place. A Parliament that seems to have no confidence in the government is nonetheless deliberately keeping that government in office, by refusing to withdraw confidence or otherwise enable an early election. A cross-party coalition, with much help from the Speaker, has taken over the initiating role in Parliament. It is using legislation that makes the actual government its puppet with regard to key questions on Brexit negotiation—while distancing itself from responsibility and accountability to the electorate. It would be an exaggeration to call this a “Speaker’s government,” but in a way it does describe the powers being exercised in concert among the Speaker, Tory rebel MPs, and opposition parties. This unprecedented power dynamic is the driving factor behind other aspects of the crisis.

By use of a strategically timed, five-week prorogation announced in a surprise move on August 28, and which began on September 10, Johnson anticipated and attempted to forestall Parliament’s assumption of power over the negotiating process and timetable. The prorogation was accomplished per the standard legal mechanism of an Order in Council, approved by the queen. It was legally challenged by petitioners in separate court cases, who were unsuccessful in England (Miller) but successful in Scotland (Cherry). The U.K. Supreme Court consolidated the cases, held hearings last week, and issued its judgment on Tuesday. 

Johnson publicly argued and maintained in the Miller case that the reason for the prorogation was simply to make way for introduction of his government’s new legislative program in a Queen’s Speech on October 14, not to evade accountability to or scrutiny of Parliament. This is not fully convincing, but it is important to note that the five-week period included the traditional three-week recess in September for party conferences. Parliament remained in session for two weeks after the prorogation announcement, and the new session would begin about two weeks before the current exit date of October 31. That left time for accountability to Parliament in the form of a vote of no confidence. In the end, it also left time, though barely, for Parliament to legislate in the manner described above. The prorogation was controversial and of doubtful prudence, but it was arguably taken, in part, to forestall a constitutional anomaly of greater gravity. 

Before Miller, no U.K. court had ever ruled on a question of prorogation or held the advice of a prime minister to the Crown to be unlawful. The U.K. Supreme Court has now done both of these things, though its explanation for why the advice was unlawful was far from clear. Disclaiming any attempt to peer into Johnson’s motives, the Court nonetheless concluded that, since he needed less time to prepare a Queen’s Speech than the prorogation period, he had “no reason” to order the prorogation. Thus, the advice was unlawful, and the prorogation was null and void.

While the Court formally limited itself to determining the scope of the prerogative, it ended up policing its exercise by demanding articulation of a reason that meets approval of the Court. Had Johnson argued that the prorogation was in part for political advantage, to avoid a Speaker’s government and its negative impact on Brexit negotiations, the Court would likely have held this was not a good reason and therefore unlawful. It was to avoid taking authority over such questions of “high policy” that the English High Court, in a decision by three senior judges, had held the issue of prorogation to be non-justiciable.

In tones reminiscent of Marbury v. Madison, the Supreme Court held that all exercises of the prerogative power are in principle justiciable and subject to legal limits:

The courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

This is substantially more expansive than judicial power over the executive branch in the U.S. The U.S. Supreme Court recognizes a political question doctrine, under which courts may not intervene when the constitution commits a matter to the sole responsibility of the executive branch, or when it supplies no judicially manageable standards. If we take the U.K. Supreme Court at its word, judges now have jurisdiction to rule on the lawfulness of the exercise of the prerogative to appoint cabinet ministers, to agree to international treaties, even decisions to go to war.

Time will tell what the ultimate effect will be. The Court’s opening paragraph stresses that the decision is a “one off,” a response to exceptional circumstances. But the potential contained in its reasoning and rhetoric to remake the U.K. constitution is revolutionary. The immediate effect will be to prolong the extraordinary circumstances now prevailing in Parliament, and to intensify the constitutional crisis.

Underlying the constitutional dynamic is a crisis of politics and democracy. The Brexit referendum resulted in a bitter divide between Remainers and Leavers, which has only increased over the years. The divide crosses party lines: Many northern Labour constituencies voted to leave, while many Conservatives staunchly support the E.U. But the main parties are increasingly defined by Brexit, and the traditional two-party system itself is fracturing under the pressure. Hard Leavers are drawn to Nigel Farage’s Brexit party and hard Remainers are flocking to the resurgent Liberal Democrats, who have promised to reverse Brexit. Labour is beset by infighting, widespread dissatisfaction with Corbyn, and a fierce struggle over whether to support a new referendum. Polls suggest that the next election might result in a hung Parliament, and mutual trust in the current Parliament is scarcely to be found.

When political tempers run high, judges are tempted to see themselves as the constitution’s last guardians, with a historical duty to step in and save the day. But the U.K. constitution has always been political in character rather than legal. The current Parliament retained the capacity to hold Johnson to account, notwithstanding the prorogation. The Miller case represents an importation of American-style political litigation, where interest groups attempt to use the courts to win victories that are properly won only through political action. This growing trend in the U.K. has been tracked and criticized by Policy Exchange’s Judicial Power Project.

Many Leave voters will perceive Miller as another attempt by the establishment class to derail Brexit. The U.K. constitution has weathered worse storms and will likely survive this one. In the meantime, the Miller decision will contribute to the crisis rather than alleviate it.  

Paul Yowell is an associate professor of law at the University of Oxford and a fellow of Oriel College.