Some realism about Brexit and justiciability

Brexit and what? Nowadays, the reality within our legal system is that to some extent and for a variety of reasons (good and bad), courts, especially appellate courts, necessarily make policy choices and law in the adjudication of cases.

One stark demonstration of problems which can arise at the intersection of law and politics is the case in which, at the outset, a person or legal entity seeking relief in a court for alleged wrongdoing is met by the defendant's assertion that the underlying controversy is not justiciable. It is inherently unsuited to or beyond the reach of impartial binding adjudication which is the hallmark of our distinctly separate judicial branch of government.

By definition, the judicial branch does not engage in partisan politicking. And it can only adjudicate disputes by the application of ascertainable and fixed legal rules and standards. To a large extent, in the UK and elsewhere a categorical/contextual approach governs the identification of areas where the courts, by way of self-denying ordinance, have no role to play – such as so-called "high government policy", treaty-making and the conduct of foreign relations, national security, the prerogative of mercy, and others.

How/where is the justiciability line drawn? In reality, the judicial branch has the final say which is inherently an exercise in judicial policy choice.

On 28 August 2019 at a Privy Council held at Balmoral Castle, Her Majesty the Queen ordered that the UK Parliament should be prorogued from a date between 9 and 12 September until 14 October 2014. That action which brought the then current parliamentary session to an end fell within the monarch's remnant prerogative powers. In accordance with constitutional convention, the Queen acted on the advice of her Prime Minister. The UK would on 31 October 2019 cease to be a member of the European Union (EU) without a withdrawal agreement with the EU unless the two parties agreed under the Treaty on European Union to another extension of the cessation date.

A month after the making of the order, the Supreme Court of the UK unanimously decided that the PM's advice was unlawful because he had not explained why the period had to be so long which meant that the order itself was unlawful. Before that invalid prorogation, the then current parliamentary session had lasted longer than any other since records began. That quality may or may not have been in part a function of the long delay caused by Parliament's obstruction.

How was it that the decision of the executive branch halting the conduct of the Parliament's business (both chambers for all purposes, and almost all Bills which had not completed all stages were lost and would have to be re-introduced), for four to five weeks was to be second-guessed by the judicial branch of government? The answer is that no less than 1161 days after the referendum conducted on 23 June 2016 in which a clear majority of voters answered "Yes" to the "Leave or Remain" in the EU question posed in accordance with the UK European Union Referendum Act 2015, varying majorities in the House of Commons had found one reason after another to refuse to give effect to the electorate's decision unless and until the political demands of those majorities as to the terms of the UK/EU withdrawal agreement were accepted by the government.

On 15 January 2019, 12 March 2019 and 29 March 2019, the House of Commons rejected successive UK/EU withdrawal agreements. So confident were the House of Commons majorities that they were acting in accordance with the electorate's wishes that they also rejected the calling of a general election in which the "Leave/Remain" saga would, in effect, be put to the final decision-maker.

Another event less widely publicised in Australia after the prorogation of the Parliament was that on 4 September 2019 Lord Doherty, a judge of the Scottish Court of Session, https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_70.pdf dismissed a challenge to the lawfulness of the PM's advice to the Queen because the https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih49.pdf?sfvrsn=0prorogation controversy was not justiciable. An appeal against that decision to the appellate bench of the Court of Session in Scotland succeeded on 11 September.

However, on that latter day, a special three-judge panel of the High Court of https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdfJustice in London ("the Divisional Court") in a separate challenge to the legality of the prorogation order unanimously decided that the controversy was not amenable to judicial review because the impugned decision was inherently, exclusively and intensively "political". There were no legal standards against which to analyse the lawfulness of the PM's advice to the monarch.

On 24 September 2019, the eleven judges of the Supreme Court of the United https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdfKingdom unanimously dismissed an appeal from the Scottish appellate court decision and allowed an appeal from the Divisional Court decision. The Supreme Court decided that in advising the monarch the PM was bound to have regard to all relevant interests, including those of Parliament. It is not at all clear from the judges' reasons what the interests of parliament relevantly encompass in the unique Brexit context. In reality, those interests are predominantly "political" along party and other lines.

One indicator of the extent of the investigation necessary to identify and evaluate those interests is that so much had occurred between the referendum in 2016 and the end of August 2019 that the outline summary of events contained in the House of https://researchbriefings.files.parliament.uk/documents/CBP-7960/CBP-7960.pdfCommons Briefing Paper No 7960, Brexit timeline: events leading to the UK's exit from the European Union) (30 October 2019), occupies 60 pages.

One question which might be posed in such an investigation is: Do the relevant interests of Parliament extend to protracted obstruction of the wishes of the people expressed so clearly by a majority of the voters in the 2016 referendum? The Supreme Court gave two reasons why the PM's advice to the Queen and the making of the prorogation order were open to judicial invalidation.

First, the prorogation undermined the foundational principle of parliamentary sovereignty that laws enacted by the Crown in Parliament were the supreme form of law because the executive could "prevent Parliament from exercising its legislative authorityfor as long as it pleased". The executive branch had used the remnant powers of the monarch in a way which threatened the making of the supreme laws of the UK legal system by the democratically elected legislature.

This is an ironic rationale. At the heart of the referendum decision was the electoral majority's dissatisfaction with the fact that the UK had surrendered no small measure of the parliament's sovereignty sto the EU and the majority wanted to see it repatriated.

Apart from that, it was not at all surprising that, during the course of oral argument, leading counsel for the PM described the rationale as an "extreme hypothetical example". The Supreme Court's riposte, that the reality of practical constraints "offers scant reassurance", does not meet the objection. If the risk was carefully assessed, it might turn out to be far-fetched or fanciful. In any event, the further the mercurial concept of "reassurance" is explored the more likely it is that the judges will be drawn into the political mire.

Secondly, put in a nutshell, the prorogation might undermine the Westminster principle of ministerial responsibility and accountability to Parliament. In short, ministers might run amok, but not "if Parliament stands prorogued for the short period which is customary". In keeping with the Supreme Court's decision, a decision to prorogue the Parliament (or to advise the monarch to do so) will be unlawful if it has the effect of frustrating or preventing, "without reasonable cause" the ability of Parliament to carry out its legislative functions and its supervision of the executive.

The Supreme Court's confident assertion that deciding whether the PM's explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation having those effects is "a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts" is one about which opinions will differ. At least four judges in the UK considered that the courts had no business interfering in the course of a unique political controversy which did not involve (to borrow the Supreme Court's language) "action which had such an extreme effect upon the fundamentals of our democracy."

In an age when the dreadful weasel word "populism" is being used by elites to denounce the majority decision-making of the "deplorables", the more judges are inclined to probe into the "interests of the parliament" the more likely it is that they will be confronted with the menacing view (given voice on the ABC RN Minefield https://www.abc.net.au/radionational/programs/theminefield/wheres-the-threat-to-democracy:-boris-johnson-or-the-british-p/11476118programme recently) that although democracy gives ultimate legitimacy to the popular will as expressed through the ballot box there is an abstraction called "representation" which enables elites among the elected representatives to filter, chasten, ignore and improve the popular will. This leads to the conclusion that Boris Johnson is a villain because he effectively has chosen "the people" over "the Parliament", or democracy over political representation. If the judges were to fall for that profoundly misguided view society will have been returned to the authoritarianism of two centuries ago.

There is, perhaps, a whiff of defensiveness about the Supreme Court's judgment in its Aesopian assessment that the dispute had occurred "in circumstances which have never arisen before and are unlikely ever to arise again. It is a "one off".

If the judges are prepared to intervene in a situation where there is no more at stake than a few days or a week or two of parliamentary sittings, future Prime Ministers might well have to consider the potential impeachability of other political decisions on the basis that they risk being subjected to an inherently unpredictable outcome of judges applying a retrospective test of reasonableness. Three cheers for the four lower court dissenters !

Postcript: Since this was written, the UK general election has been conducted. Three cheers also for the deplorables!