Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.
The A-Z of Scots Law: From Avizandum to the Zany Antics of Boris Johnson
Prime Minister Boris Johnson’s recent actions are under scrutiny by the Scottish legal system. In the Cherry case, the Scottish court deemed the decision to suspend Parliament unlawful. Further legal action is anticipated regarding the Prime Minister’s reported refusal to adhere to the European Union (Withdrawal) (No.2) Act 2019, which aims to prevent a no-deal Brexit. This law mandates that the Prime Minister request an extension to the Article 50 TEU negotiating period from the European Council by October 19, 2019, if a deal (or parliamentary approval for a no-deal outcome) isn’t reached between the UK and the EU by that date.
These events have introduced non-Scottish legal professionals and the UK public to new legal terminology. The Cherry case highlighted terms like ‘Avizandum’ and ‘stymie,’ while the potential case to compel Boris Johnson’s compliance with the 2019 law brought the Latin term ‘nobile officium’ to light.
‘Avizandum’ is a Scottish legal term signifying a court’s decision to postpone judgment and provide reasoning at a later time. ‘Stymie,’ used in the Cherry case, refers to the way proroguing Parliament would hinder its ability to examine the Executive’s actions during suspension. This term, originating from Scottish golfing slang, aptly describes the Prime Minister’s attempts to divert Parliament’s attention from a no-deal Brexit.
The ‘nobile officium’ is a longstanding power of Scotland’s highest court (the Court of Session) to provide equitable remedies for plaintiffs when the law appears deficient.
This blog will analyze the significance of the Scottish judges’ unanimous decision in Cherry to declare the Prime Minister’s prorogation of Parliament unlawful. It will contrast this with the English High Court’s decision not to intervene in Miller 2. Finally, it will examine the potential implications of these cases for the Supreme Court hearing scheduled for Tuesday, September 17, 2019. (A summary of prorogation case law with relevant links is available here).
The initial Cherry case (analyzed here) was the first legal challenge to Boris Johnson’s decision to prorogue Parliament. Lord Doherty initially dismissed the petitioner’s arguments. He maintained that the prorogation decision was an instance of non-statutory prerogative power exercised by the government (the Executive). Lord Doherty viewed this as non-justiciable (not subject to judicial review) because it involved high-level political strategy best addressed through political processes. This meant the Prime Minister should be held accountable by fellow members of Parliament and, ultimately, the electorate.
Gina Miller, Shami Chakrabarti, and Sir John Major brought a similar claim against prorogation in the English High Court. Both courts agreed on this point: the Prime Minister’s prorogation decision fell under the non-justiciable prerogative power because it involved significant political judgment (see the Miller justifications at paras. 38, 42 and 60, Lord Doherty’s statements in Cherry 1 at paras. 25 and 26, and the Scottish case law of MacCormcick v Lord Advocate 1953 SC 390, Gibson v Lord Advocate 1975 SC 136, and Lord Gray’s Motion 2000 SC (HL) 46). They found no legal basis to assess the prorogation decision’s legitimacy (para. 51). This stance is supported by a substantial body of legal precedent, with cases ranging from de Freitas v Benny ([1976] AC 239) and R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1975] 1 QB 811 (the GCHQ case) to A v Secretary of State for the Home Department [2005] 1 AC 68 (the Belmarsh case) and Shergill v Khaira [2014] UKSC 33. Lord Bingham famously stated in the Belmarsh case:
“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.”
As discussed previously, the dissenting judges in Miller 1 cautioned against judicial involvement in matters of high policy. Lord Reed argued:
“It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”
The English High Court acknowledged these concerns, stating succinctly in the first paragraph of its Miller 2 judgment:
“It is not a matter for the courts.”
The non-justiciability argument seemed to prevail on both sides of the border. In Belfast, the High Court of Northern Ireland also chose not to rule on the prorogation issue in a case brought by Raymond McCord.
The English High Court also considered that, even if the prorogation order were reviewable, the Prime Minister provided valid reasons for it (para. 51). It is typical for a new Prime Minister to seek a Queen’s Speech to enact their policy agenda. Additionally, there would still be time to debate and scrutinize Brexit even with prorogation. Parliamentary time was already reduced due to the prorogation coinciding with the traditional party conference recess. Finally, the preceding Parliamentary session had been unusually lengthy.
The Remain Alliance seemed to face insurmountable obstacles. The Prime Minister’s actions, while potentially facing political and ethical scrutiny, appeared legally sound. And yet…
An immediate appeal was filed against the initial decision by Lord Doherty in the Outer House of the Court of Session in Scotland. On Wednesday, September 11, 2019, the three judges of the Inner House issued a unanimous and impactful decision: the Prime Minister’s move to prorogue Parliament was justiciable and deemed flawed upon closer examination.
The Scottish judges didn’t mince words, strongly condemning the situation. Lord Brodie called the prorogation decision an ‘egregious case’ of misconduct (para. 91), falling significantly below the expected standards of behavior for public officials.
At first glance, the Scottish Supreme Court’s decision seems to contradict established legal norms. Proroguing Parliament is traditionally a political act, immune to legal challenges. How can legal experts reconcile this discrepancy?
The answer lies in the approach and the way the issue was framed in the three UK jurisdictions. As discussed previously, since the GCHQ case, the justiciability of royal prerogative powers is no longer a straightforward yes-or-no question. The assessment hinges on the nature of the specific prerogative power. The more legalistic the power, the more readily courts can assert jurisdiction. Conversely, the more political or non-legal the power, the harder it is for the court to intervene. However, this sliding scale doesn’t fully clarify the conflicting judgments across England and Scotland. Based solely on this, the English and Scottish courts should have reached the same conclusion.
Legal clarity in this complex situation might, ironically, come from legal experts Professor Paul Craig and Professor Mark Elliott. Both have offered insightful explanations of the constitutional dilemmas arising from Boris Johnson’s premiership. They argue that for the courts to abstain from ruling on a matter of such magnitude would be a significant breach of judicial duty (See Professor Craig’s view in his blog Prorogation: Three Assumptions, published on September 9). The risks Boris Johnson’s actions pose to the UK constitution necessitate and justify judicial intervention. This situation presents such a unique challenge to the democratic principles of the UK’s unwritten constitution that a judicial response is both appropriate and essential (See Professor Craig’s blog Prorogation: Constitutional Principle and Law, Fact and Causation, published on August 31).
Failing to provide legal recourse at this critical juncture would create a legal void. This would indirectly support and legitimize the Prime Minister’s actions (see the discussion by Alan Greene in his blog Miller 2, Non-justiciability and the Danger of Legal Black Holes, available here). Professor Elliott finds the English High Court’s sweeping refusal to consider any review of the prorogation decision legally questionable on two grounds. First, it contradicts the trend in current judicial precedent on non-justiciability, which is gradually narrowing the scope of this barrier. Second, and more importantly, the Miller 2 judgment misinterpreted the legal issue at hand (see Professor Elliott’s blog Prorogation and justiciability: Some thoughts ahead of the Cherry/Miller (No. 2) case, available here).
Therefore, the argument for intervention gains weight by examining the questions before the UK courts from a different angle. Some argue the English High Court mistakenly focused on assessing the exercise of the discretionary power to prorogue. They contend the English High Court fixated on the practical aspects, questioning the justifications for prorogation and the reasonableness of its duration. This suggests the judicial review aimed to substitute the court’s judgment for the Prime Minister’s, evaluating the appropriateness of the requested prorogation period. If so, traditional legal principles come into play: courts aren’t meant to second-guess a flawed decision-maker, especially when the decision is based purely on political considerations rather than legal principles. Such decisions are deemed unsuitable for judicial oversight and intervention. The Inner House of the Court of Session took a different approach to adjudication.
After reviewing legal precedents, the Inner House concluded that the prerogative power to prorogue Parliament was justiciable (para. 31). The Court of Session approached the matter by considering fundamental principles of the UK constitution. It asked a different question than the English High Court, focusing on the existence of the legal power and its limitations. Determining the scope of legal powers is a classic judicial review question requiring resolution. The foundational principle of the UK’s unwritten constitution is adherence to the rule of law.
Lord Drummond Young succinctly summarized this fundamental truth at para. 102:
“The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised.”
Applying this principle to the case, the Scottish court examined whether the use of the prerogative power to prorogue Parliament served a purpose demonstrably outside its intended scope (para. 104). The Scottish court believed it could answer this question because UK case law demonstrated significant judicial flexibility in addressing such matters (see Pham v Home Secretary [2015] 1 WLR 1591). Considering the substantial redacted information provided by Her Majesty’s Government, the answer seemed clear: the Prime Minister prorogued Parliament for an improper reason—to obstruct parliamentary debate, oversight, and scrutiny of the UK’s withdrawal from the European Union.
Irrespective of their stance on the justiciability or merits of the case, the Scottish judges deemed the situation’s gravity demanded a robust judicial response. They viewed the Prime Minister’s actions as an egregious breach of the generally accepted standards of conduct for a public authority (para. 91). The case’s exceptional seriousness compelled the court to act.
It can be argued that the Scottish judges were not attempting to usurp Parliament’s authority. Instead, by issuing a judgment, they aimed to empower Parliament.
The Inner House’s finding implies the decision to prorogue Parliament was unlawful. Consequently, the Order in Council is legally void, meaning the decision is invalid from the outset. However, recognizing the constitutional weight of this case and its counterparts in Belfast and London, the Lord President chose not to enforce the judgment immediately. This decision stems from the fact that all these judgments are subject to an appeal to the UK Supreme Court. If the Supreme Court ultimately sides with the Inner House, the Cherry 2 judgment would be fully enforced and applied from that point onward.
The outcome of the combined appeals at the UK Supreme Court on Tuesday, September 17, remains uncertain. The Scottish judgment is unprecedented: it marks the first time a sitting Prime Minister has been found guilty of acting unlawfully in proroguing Parliament.
What is certain is that the 11 justices of the Supreme Court will, once again, shape UK constitutional history after the hearing.
Barnard & Peers: chapter 27
Photo credit: parliament.uk