Hale: I regret that brooch
But most contributors to new book say court was not trying to trap PM in its web
Lady Hale has expressed regret at her decision to wear a spider brooch when she ruled in September 2019 that Boris Johnson’s decision to suspend parliament for five weeks was unlawful and of no effect. As president of the UK Supreme Court, she was delivering a unanimous judgment in the case known as Miller 2.
Hale’s admission was made in a lecture she delivered on 12 December 2019 to mark the court’s tenth anniversary.It now appears as the foreword to the 800-page tenth volume of The UK Supreme Court Yearbook, published by Appellate Press and now available from Wildy & Co.
Looking back over the court’s first decade, Hale noted the court’s decision to live-stream all its proceedings and, more recently, to provide a catch-up service online. The justices use that facility themselves, she revealed: “it is very useful to us to be able to go back and watch a hearing to check some point.”
Hale said that broadcast coverage of the court had been hugely important in both Miller 1 (the 2017 case about triggering Brexit) and Miller 2 (the prorogation case in 2019):
Viewers could understand that we were not having a political debate about the pros and cons of leaving the European Union. We were having a serious legal debate about important constitutional issues concerning the allocation of powers between government and parliament.
Had there been any regrets about letting the cameras in? Fears about counsel grandstanding had proved largely groundless, Hale said:
However, I do regret the focus on the brooch which I was wearing when delivering the summary in Miller v The Prime Minister. Regular viewers know that I often wear a brooch — usually a creature — to liven up our normally quite sober dress, but that it has no obvious connection to the matter in hand. Unlike Madeleine Albright, I am not trying to send a message. There was no hidden message in the brooch I wore that day, but perhaps I should have foreseen that the public and the media would look for one.
Just a bad dream
The yearbook includes a number of essays on Miller 2. Lord Pannick QC, counsel for Gina Miller in both her constitutional challenges, writes the introductory piece in his typically clear and popular style:
As a matter of law, said the Supreme Court, parliament had not been prorogued. When the royal commissioners had attended parliament for the prorogation ceremony on 9 September 2019, it “was as if the commissioners had walked into parliament with a blank piece of paper.”
On the day after the Supreme Court judgment, 25 September 2019, parliament resumed. The then speaker of the House of Commons, John Bercow, announced that he had directed that the journal of parliamentary proceedings for 9 September 2019 in relation to the prorogation be “expunged” and replaced by an entry recording that the house had been “adjourned”.
It was the parliamentary equivalent of the episode in the 1980s television series Dallas which revealed that the previous series in which Bobby Ewing had died was just a bad dream.
Pannick reminds us that he began his submissions to the High Court with a carefully crafted joke. “That got a good laugh but unfortunately so did the rest of my submissions.”
At the appeal, though, he had the last laugh:
The powerful judgment of Lady Hale and Lord Reed for a unanimous Supreme Court of 11 judges ensured the transformation of the prorogation case from what many observers had dismissed as at best a speculative legal argument to what is now widely, although not universally, regarded as a plain and obvious conclusion.
Of course, Pannick was not working entirely on his own. The Scottish National Party MP Joanna Cherry had already won a similar claim in the Court of Session and her counsel argued that the Scottish judges had got it right. Pannick noted drily that
in the Supreme Court, where we needed to persuade the justices that the case concerned an issue of law, not politics, Aidan O’Neill QC’s submissions referred to the Battle of Bannockburn, quoted Oliver Cromwell, Abraham Lincoln and Nelson Mandela, and described the prime minister as the “father of lies” seeking to close down the “mother of parliaments”.
That did not go unnoticed by Hale:
In high profile cases in the House of Lords, counsel would often have a first five minutes of script with some purple prose which they hoped that the media would pick up before they got down to the less colourful legal argument. That still happens. But it is rare to have a whole speech which seems designed for public consumption rather than to persuade the court. I can only think of one recent example.
Did Miller 2 make new law? In one sense it did, wrote Pannick, but that was because no prime minister in the past 50 years had so abused his powers that the courts had been asked to intervene. But, in the sense that the relevant legal principles were well-established, it was not new law at all:
In assessing the legality of this exercise of prerogative power, the courts were applying principles developed over the past 50 years that power may only be exercised by assessing relevant factors, for a proper purpose and in a reasonable manner… The prime minister advanced no coherent reason for wanting a five-week prorogation.
So I do not agree with critics of the judgment that the prorogation case is an example of “the judicialisation of politics” and the “politicisation of the judicial process” — the charge made by Professor Richard Ekins, professor of law at Oxford university and head of Policy Exchange’s Judicial Power Project… This was an example of judges performing their constitutional role to remedy abuse of power.
Debasing the coinage
Pannick’s essay is followed by one in which Professor John Finnis argues that Miller 2 amounts to “the creation and retroactive enforcing of a new constitutional ground rule”. I won’t attempt to summarise his arguments. But it’s worth looking out for his gratuitously rude references to the author of the next paper, Professor Paul Craig.
According to Finnis, it all started to go wrong around the time of Miller 1, “when Paul Craig and a number of other scholars began to debase the coinage of our constitutional language”. Craig responds firmly, persuasively and rather more politely. He concludes with “a wry intellectual smile” at the thought of Finnis — of all people — accusing him of writing a polemic.
We then enter calmer waters with an essay by Professor Alison Young. Like Craig, she supports the decision in Miller 2:
The decision of the Supreme Court can be defended as a form of constitutional counterbalancing, the Supreme Court ensuring that the executive does not usurp power from the legislature in circumstances where the legislature is unable to ensure its powers are not usurped by the executive.
Young neatly characterised this as a Westminster vision of democracy — in contrast to to the Whitehall vision of democracy espoused by Finnis, Ekins and Professor Martin Loughlin. It is a fascinating analysis, explained with great clarity.
Miller 2 was a key constitutional case, wrote Young. It has “large political ramifications”.
But this does not mean that it was a political judgment, in the sense of being influenced predominantly by political as opposed to legal considerations. The court’s account of the principles of parliamentary sovereignty and parliamentary accountability demonstrate a preference for a Westminster as opposed to Whitehall interpretation of representative democracy. But this is understandable given the context of the decision. The Westminster interpretation of democracy is a better reflection of the political reality at the time the judgment was made.
We are not likely to see the same combination of circumstances recurring in the near future, Young observed. But that’s not to downgrade the importance of Miller 2:
It is part of a line of recent cases where the Supreme Court has drawn on constitutional principles to place legal limits on the power of the executive, protecting the constitution by upholding the separation of powers.
This does not provide evidence of the Supreme Court muscling-in on the proper role of the legislature. Rather, it provides an example of the Supreme Court setting limits that are sensitive to existing parliamentary and other political controls, treading carefully to protect the UK constitution in times of extreme stress.
But did the ruling contravene article 9 of the Bill of Rights 1689, which says that “proceedings in parlyament ought not to be impeached or questioned in any court or place out of parlyament”?
No, say Young and others. That would be to confuse the Queen giving assent to legislation with the Queen proroguing parliament:
Royal assent is is a proceeding in parliament as it is needed in order to make an act of parliament. Prorogation is an act of the monarch, on the advice of her ministers, which is then reported to parliament.
And what about the Parliamentary Buildings (Restoration and Renewal) Act 2019, which, uniquely, was given royal assent on 9 September 2019and then again on 8 October 2019?
That was done because royal assent to the restoration bill had been announced by the three commissioners at the same time as they announced the prorogation — which, as we have seen, the Supreme Court had decided was “null and of no effect”. In the court’s words, it was “as if the commissioners had walked into parliament with a blank piece of paper”.
So some critics accused the Supreme Court of not only quashing prorogation but also quashing the bill’s first royal assent, contravening not just the Bill of Rights but also the principle that judges cannot overturn primary legislation.
“This criticism confuses a metaphor with reality,” Young explained. Royal assent and the prorogation order were “clearly severable” and the court’s ruling applied only to the prorogation order. The assent given on 9 September was not quashed by the court on 24 September. The assent given on 8 October, she added generously, “is best understood as the commissioners erring on the side of caution in constitutionally novel circumstances”.
A spider’s web?
In week before the Supreme Court celebrated its tenth anniversary — the last week of the legal year 2018/19 — the justices delivered what’s likely to remain their most important judgment for many years to come. I discussed Miller 2 in my own book Enemies of the People?, published in April last year. But the UK Supreme Court Yearbook for 2018/19 provides students and others with a great deal more inside information and high-level analysis. I’ve hardly scratched the book’s surface in this piece — but perhaps I shall be able to mine some more nuggets in the weeks to come.
And that brooch? Hale is right. Whether or not you think the prime minister is “fly”, the Supreme Court was certainly not out to trap him in its web.
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In the version of this piece sent to everyone on my mailing list, I suggested incorrectly that the speech had not been published at the time. Apologies for this error.
In the outside world, it was the early hours of Tuesday 10 September. But the parliamentary day does not end until parliament says so.