A report from paradise
By Warren Pyke
On 7 November 2019, the Judges of the Court of Appeal of the Cook Islands held a legal education update seminar in Rarotonga. The President of the Court, DAR Williams J, presented on the topic of international arbitration clauses in commercial contracts; Asher J on constructive trusts when property is held under an express trust; and White J on the prorogation judgment of the UK Supreme Court in R (Miller) v Prime Minister  UKSC 41,  3 WLR 589 (Miller).
My wife and I attended the seminar. It was something of a first for us, as our goal when in the Pacific Islands is to avoid work. However, we are glad we attended. We were made welcome by our host, a lawyer of long-standing in the Cooks, and the local law society members, who took us along to the post seminar drinks and dinner, held at the Tamarind House. This report contains observations about the presentation of Justice White on the Miller case, and discusses aspects and implications of the judgment in Miller.
Following the presentations, lawyers were invited to comment and ask questions. Justice Asher presciently prefaced his presentation by saying that, as a new judge to the jurisdiction, he welcomed comment and critique. Participation was lively. The sophistication of the comments and questions displayed the local lawyers’ in-depth knowledge and understanding of the legal principles under discussion.
The journey to Miller – the prorogation decision and the legal challenges to it
On 28 August 2019 at a Privy Council held at the Court at Balmoral, the Queen ordered that the UK Parliament be prorogued from a date between 9 and 12 September until 14 October 2019. The order was made on the advice of the Prime Minister, Boris Johnson. An application for judicial review was brought in the High Court, which, after dismissing the action (see Miller v The Prime Minister  EWHC 2381(QB)), gave permission to directly appeal to the Supreme Court. The High Court observed that the refusal of the courts to review political questions is well established, citing A v Secretary of State for the Home Department  1 AC 68, per Lord Bingham, at . Further, at : “Almost all important decisions made by the Executive have a political hue to them. In the present context of non-justiciability, the essential characteristic of a ‘political’ issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action.” The High Court held that the issue was not justiciable, because “the line of separation is set by the courts in the present context by reference to whether the issue is one of ‘high policy’ or ‘political’ or both. In the circumstances and on the facts of the present case the decision was political… .” (at ).
Parallel proceedings were under way in Scotland. The issue as framed in the Court of Session was: “first, as a matter of law, …whether the prorogation can be judicially reviewed in circumstances in which it is alleged that it has been requested for what is said to be an improper motive viz. the stymying of Parliamentary debate on the issue of the UK leaving the European Union. The second, as a matter of fact, is whether that improper motive has been demonstrated.” (see Cherry v The Advocate General  CSIH 49, at , per Lord Carloway).
The court considered that the Prime Minister’s advice was calculated to prorogue for a reason important to the government’s political stance on Brexit, as shown by internal memoranda and minutes from within the cabinet and the Prime Minister’s office. The advice was that of the Prime Minster alone, rather than of the cabinet (see Cherry at ). The case for the applicants turned on whether the reason proffered by the Prime Minister in public, to prepare for a new legislative programme and to cover the period of the party conferences, was the true one. The true reason, it was argued, was to stymie Parliamentary scrutiny of Government action, which is a central pillar of the good governance constitutional principle.
Although the Court of Session considered that there was force in the contention that the courts should leave the issue to Parliament (Cherry at ), it nonetheless found that, because the prorogation had been sought in a clandestine manner, and because “remarkably little [was] said about the reason for the prorogation in the respondent’s pleadings”, the Prime Minister’s advice did not withstand scrutiny. The court added: “Although the court would not expect an affidavit from a Government minister or official testifying to the reason … it would expect averments in the respondent’s answers setting out that reason. Such averments would require to be based upon information provided to counsel and to proceed upon counsel’s responsibility (McGeoch v Scottish Legal Aid Board 2013 SLT 183, per Lord Brodie at para ).” (see Cherry, at ).
Prorogation – law and practice
Prorogation ends a session of Parliament; it is the temporary suspension of parliamentary activity; it occurs in Westminster-style parliamentary systems when the government has largely completed its legislative agenda, as proposed in a Speech from the Throne, and wishes to set out a new legislative programme (Gerard Horgan, “Prorogation as a tool of the Executive in intercameral conflict” (2014) 29 Australasian Parliamentary Review 159-76).
The power to order the prorogation of Parliament is a prerogative power: it is a power exercised by the sovereign in person, or the sovereign’s representative, acting on advice. Conventionally, the sovereign or their representative is obliged to accept the advice, which places on a Prime Minister a constitutional responsibility to have regard to all salient interests, including the interests of Parliament (Miller, at 30): however, as I outline below, this convention may not be absolute.
Prorogation can occur in New Zealand under s 18 of the Constitution Act 1986 (see s 20 as to its effects), but it is now a rarely used procedure (the last occasion I have found being in 1991 at the onset of the first Gulf War). In the Cook Islands, prorogation can occur through a process involving the Queen’s Representative, under s 37 of the Constitution of the Cook Islands. Justice White observed that the judgment in Miller might have constitutional law implications for the Cook Islands in the future: White J qualified these observations by clarifying that he did not hold (nor did he express) any views about such implications.
Miller – reasons and relief
The Supreme Court agreed with the Court of Session in Scotland that the process was amenable to judicial review. It was true that the prorogation took place in the House of Lords and in the presence of Members of both Houses, but this fact alone did not mean it was a proceeding in Parliament, and therefore subject to Article 9 of the Bill of Rights Act 1688.
The court observed (at ): “the principal matter to which Article 9 is directed is freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees are also covered, it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament.”
Citing Lord Lloyd of Berwick in R v Secretary of State for the Home Department, Ex p Fire Brigades Union  2 AC 513, 572-573, the Supreme Court held that because the Prime Minister was politically accountable to Parliament did not mean that he was immune from legal accountability to the courts, because (at ): “the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted.”
The Supreme Court held (at ): “In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course,” adding that there was no reason, “let alone a good reason”, to justify the advice given by the Prime Minister to the Queen that Parliament be prorogued for five weeks. The advice led to the actual prorogation, which was “as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.” (at ).
Justice White’s observations
Justice White’s review of Miller observed that two aspects of the Supreme Court’s judgment were notable: the clarity and relative simplicity of the language used in the judgment, and the conventional approach to the problems raised in the case. Justice White observed that the applicable legal principles were drawn from precedent, findings of fact were made in an orthodox manner, including the drawing of inferences from an absence of evidence (here, from the Prime Minister, as discussed below), and that the court recognised the separation of powers. Further, that the remedy granted of a declaration was orthodox.
The Lord Ordinary had previously rejected the petition for the principal reason that the provision of advice to the Queen on the prorogation of Parliament was not justiciable. It is worthwhile considering the Lord Ordinary’s reasoning as reported in Cherry  CSIH 49 at  to , as follows: The exercise of prerogative powers in some circumstances is justiciable, but in others it is not. The power to advise the Queen in relation to the decision to prorogue Parliament was a political one. Its exercise could not be measured against legal standards. The accountability for the advice was to Parliament and, ultimately, the electorate, not the courts. The advice did not contravene the rule of law. It followed from the separation of powers that the courts would not interfere with Parliament’s decisions on when to sit. It was not for the courts to devise restraints on prorogation beyond the limits which Parliament had set (relying on Shergill vKhaira  AC 359 at ; A vSecretary of State for the Home Department  2 AC 68 at ). This principle was longstanding. Further support for this opinion can be found in the speech of Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service  AC 374, at 418 and in the reasons for judgment given by Sedley and Waller JJ in Secretary of State for the Foreign and Commonwealth Affairs v R (on the application of Bancoult)  QB 365 at  and . See also the judgment of the Supreme Court of India in S.R. Bommai v Union of India  INSC 173, 1994 (3) SCC 1, at 209: “Similarly prorogation of Parliament or dissolution of Parliament done under Article 85 is not liable to judicial review. The accountability is of the Prime Minister to the people though the President acts in his discretionary power, with the aid and advice of the Prime Minister.”
Questions from the Cooks
During the seminar, questions were asked about the Cook Islands Parliament sitting, in recent times, in a single annual session of, so it seems, relatively short duration. The written Constitution of the Cook Islands requires Parliament to sit at the instigation of the Queen’s Representative, not later than 90 days after the holding of a general election and at least once in every year thereafter, so that a period of 12 months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session. As in New Zealand, this is tailored to make provision for the annual supply vote.
These questions implicitly raise Article 13 of the Bill of Rights Act 1688, in force in the Cook Islands and New Zealand, which provides: “for redress of all grievances, and for the amending, strengthening, and preserving of the laws, Parliaments ought to be held frequently”. Parliament should sit for so long, or sufficiently frequently, as is commensurate with fulfilment of its constitutional function as the elected legislative body: the ratios of Miller and Bishop, discussed above, suggest that this involves more than considerations affecting supply.
Examination of whether a vote taken in Parliament was in conformance with the Cook Islands Constitution was considered by the Cook Islands High Court in Bishop v Attorney General OA 18/00, 16 February 2000. In the course of its judgment, the High Court observed: “Article 9 [of the Bill of Rights Act 1688] encapsulates one of the conventions applying to the relationship between the Courts and Parliament whereby the legislative, executive and judicial arms of the State do not intrude into the spheres of one another except when it is essential to the proper performance of a constitutional role. The long-established principle is that whatever is done within the walls of a House of Parliament must pass without question in the courts: Stockdale v Hansard (1839) 9 Ad and Ell; Braataugh v Gossett (1884) 12 QBD 271.” To like effect, see the judgment of the Privy Council in Prebble v Television New Zealand  3 NZLR 1. Despite this principle, the High Court held that the motion passed in Parliament was invalid because it failed to adhere to the requirements of the Constitution, the result of which was that the Speaker remained in office.
Serious questions remain about the future scope of such challenges to executive action. Prorogation is usually a “mundane” procedure (see the article by Professor Craig, cited below, at 28). But prorogation has been used to achieve political ends. Charles II prorogued Parliament several times to prevent discussion of the Exclusion Bill. John Major prorogued Parliament in order to prevent a report by the Parliamentary Commissioner for Standards on the cash-for-questions scandal from being tabled before the 1997 general election. In 2003, the Canadian Parliament was prorogued to delay the tabling of a report by the Auditor-General into a major sponsorship scandal. In 2011, the New South Wales Parliament was prorogued in order to prevent the production of State papers pursuant to standing orders of the Legislative Council (see Steven Spadijer, “Prorogation, Justiciability and the Reserve Powers”, U.K. Const. L. Blog, 20 September 2019).
While the scope for review of prerogative decisions has increased in modern times (see, for example, R v Secretary of State for the Home Department, ex p. Bentley  QB 349, grant of pardons; Attorney General of Jamaica  2 AC 50, prerogative of mercy; R v Secretary of State for Foreign and Commonwealth Affairs, ex. p Everett  QB 811, refusal of passports), that does not mean that “the jurisprudential stage has now been reached where there is no longer any exercise of common law prerogative powers which is immune from judicial review, that is to say non-justiciable, but that there are merely areas in which the courts must proceed with caution.” (see the High Court’s judgment in Miller (at ), which added that there remains a question as to “whether the subject matter of the power is non-justiciable”, (at )).
Professor Paul Craig, of St John’s College, Oxford, offers support for the Supreme Court’s approach (see Paul Craig, “Prorogation: principle and law, fact and causation”, Counsel, Oct 2019:26-28). He says that: “All power is bounded”. He points to constraints on the prerogative power since The Case of Proclamations (1611) 12 Co. Rep. 74. He characterises the prorogation at issue in Miller as an illegitimate “pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued,” and argues against a view that the prorogation was not justiciable; he says this view is misconceived because, if it were correct, there could be no recourse to the courts when prorogation was a result of bribery, corruption or foreign influence.
On the other hand, it is worth observing that, despite convention, the sovereign is not altogether bound by advice, even in the face of political factors. Spadijer (op cit) points to examples in Australia and Canada when the Queen’s representative questioned advice about the length of a proposed prorogation, resulting in the period being curtailed, adding that “the Queen and her advisers are not stupid.” He points to scenarios where repeated attempts at prorogation after a court’s intervention might lengthen a constitutional crisis, and entail a game of “ping pong” between the courts and the government. It follows that if there is evidence that the sovereign or the sovereign’s representative has been frankly advised about the salient factors in the prorogation advice, and has elected to accept the advice (even if a court might think the advice to be wrong or faulty), the courts should not intervene. In Miller, it was the shrouding of the real reasons for the prorogation that moved the court to grant relief.
Professor Craig says the Supreme Court’s judgment in Miller does not represent a sudden departure from principle; he says the contrary view misses a well-established qualification to the sovereignty of Parliament, which would “turn the clock back to the Stuart monarchical period, where Parliament sits at the grace and favour of the executive. The government’s legal team tried to downplay such fears by contending that Parliament would have to be recalled in order to vote supply. This serves to reinforce, not assuage, comparison with Stuart monarchical power, since it was the very need for supply that motivated the Stuart kings to recall Parliament. The idea that we should be comforted by this comparison is ironic indeed.”
Despite the opinion that the Supreme Court in Miller applied orthodox principles to a compelling case on the facts, it nevertheless represents a doorway which is visibly ajar, such as to encourage future litigants to push at it, in order to counter a government’s use of prorogation to achieve political ends.
Warren Pyke is an Auckland barrister specialising in appellate advocacy firstname.lastname@example.org.