The unconstitutional committee
The unconstitutional committee
Top judges, cross-examined on Miller 2 ruling, cry foul
Lord Reed’s appearance before the House of Lords constitution committee this morning led to an unexpected clash — and one that was deeply unconstitutional. The president of the UK Supreme Court and his deputy, Lord Hodge, were answering routine questions about the court’s work when the former Conservative leader Lord Howard of Lympne CH QC threw in a question about a case that Reed, Hodge and nine other justices had decided in 2019:
I would like to give you the opportunity to help me understand one of the more controversial decisions of recent years in which you were both involved, which is Miller 2, the prorogation case… Prorogation takes place in the House of Lords, attended by members of the House of Commons, and article 9 of the Bill of Rights says “proceedings in parliament ought not to be impeached or questioned in any court”… The court decided that prorogation wasn’t a proceeding because it didn’t involve any decisions.
And I’m wondering: was the court of the view that the authors of the Bill of Rights lacked sufficient command of the English language to insert a reference to “decision” in article 9, if that was really what they meant? Or was there some other explanation for the court’s conclusion?
Reed should have recognised this question for what it was and declined to answer. Instead, he tried to be helpful:
The hearing was virtually entirely concerned with the question of whether the advice given by the prime minister to Her Majesty was lawful or not. And the government’s argument was, essentially, that parliament sat at the government’s pleasure — that the government could prorogue parliament whenever it liked, for as long as it liked.
We rejected that argument, as effectively reversing the result of our 17th century history.
The question of what you then did, in relation to the prorogation, had not been addressed by the parties. Neither of them had presented argument on the point.
We raised it towards the end of the hearing and we received, at the time, very perfunctory submissions because nobody had really thought about it. And afterwards we had more detailed submissions in writing.
And we reached the conclusion, as matter of law, that you find in the judgment.
I appreciate that the committee includes a number of qualified lawyers, including Lord Howard, and obviously you’re entitled to disagree with it — but that was our decision.
Howard pressed on. If prorogation had taken place in the House of Lords, why wasn’t it a proceeding in parliament? This time, Hodge responded:
It was a closing down of parliament. It was the announcement of an outcome to parliament. And I think one has to remember that the Bill of Rights was a provision designed to protect parliament from the executive — and in those days, from the courts... So the Bill of Rights has to be seen in its historic context and its purpose was to protect parliament, not to allow the executive to remove parliament’s sitting.
Howard then tried to re-argue the case with the judges. Parliament could have voted to block prorogation if it had wanted to, he said. But it didn’t.
Reed was still trying to be helpful:
I don’t recall that point being put to us…
We were faced with the sort of argument that might have appealed to Charles I or James II: that parliament sits at the pleasure of the Crown and the government — as successor of the monarch in effectively exercising powers of Crown — can dismiss parliament whenever it pleases, for as long as it likes.
And that’s an argument we weren’t prepared to accept.
But then, politely but firmly, Reed reminded the committee chair, Baroness Drake, that Howard was totally out of order:
I should say, if I may, the rules of engagement of these appearances aren’t really intended for us to be quizzed on the reasoning of our judgments.
Howard should have stopped there. But he persisted:
The opportunity for the Supreme Court justices to be in any way accountable are very limited.
Reed’s response was short and sharp:
We’re not accountable for our judgments to any institution.
It was some time later that Lord Falconer of Thoroton, lord chancellor in Tony Blair’s government, explained why Howard should not have asked a serving judge to justify the decision of a court.
Listening to Michael, who is a most formidable advocate, I do think it’s wrong that we should be prodding away at a decision that’s been made. Because, for better or for worse, the Supreme Court has got to make these decisions and they’re not here to be told they’re wrong or to give reasons beyond those in the judgment. It will, I suspect, lead to problems if we allow that to go on. So I just put a marker down that that’s wrong.
It is indeed. The judges are not answerable to parliament for their decisions. Howard knows that perfectly well and Reed should not have had to spell it out to him.
If parliament does not like the decision of a court, it can pass legislation to reverse its effect. That’s fully accepted by the courts and Reed mentioned a well-known example during his evidence this morning.
Howard’s thinking is presumably that if the courts are trespassing on the prerogatives of parliament then parliament can start roughing up the judges. If that’s his position, the judges will simply stop appearing before parliamentary committees.
There are good reasons why serving judges never discuss their judgments once they have been delivered — still less explain them or enlarge on them.* A litigant relying on a precedent is entitled to assume that the judgment as delivered represents the view of the court. Lawyers should not need to search for extra-judicial utterances that may be seen as modifying a decision.
Drake, as chair of the committee, should have called Howard to order. But, as Howard knew, she is not a lawyer and might not have grasped immediately that his questions were contrary to what Reed quaintly called the rules of engagement. In any event, she may have thought, Reed and Hodge seemed willing to engage with Howard’s cross-examination.
Until, that is, they were not.
*Update 7pm: some readers have suggested that I was being too dogmatic in suggesting that serving judges never discuss their judgments once given. It’s true that judges sometimes mention their decisions in lectures and academic seminars. What they don’t do is seek to justify their rulings by offering different reasons. When the lord chief justice gives his annual news conference, reporters are reminded that he won’t answer questions about his judicial decisions. The same rule applies when reporters interview judges.
Update 7 April: A note from the judiciary of England and Wales says:
Individual judges may… be invited to give evidence to parliamentary committees. In modern times, judges who have been asked to attend have done so voluntarily, subject to the well-established and long-standing rules and conventions that prevent judges from commenting on certain matters.
Parliamentary committees respect these rules and conventions. The prohibited matters include… the merits of individual cases or decisions (although particular trials may be used as examples of practice when discussing general policy issues)…
Updates 12 April: The official transcript is now available. The quotations I have used are from my own transcript.
Lord Howard of Lympne CH QC has responded to my comments. He writes:
When he appeared before the committee last year (before I was a member), Lord Reed said that the [Supreme] Court’s function of interpreting and applying the law did not set it up “in opposition to government or as trespassing on the domain of parliament”.
I know of no constitutional principle that renders such assertions immune from questioning or testing. It seems to me that the only way in which the assertion could be tested is by reference to the court’s decisions. That is why I asked my questions and, in my opinion, it was entirely legitimate for me to do so.