Introduction of separation of powers and checks and balances in the UK?

The recent Parliament Prorogation Case in the United Kingdom has generated a lot of curiosity across the globe. It is hailed by some as “the most significant judicial statement on the [UK] constitution in over 200 years” (Thomas Poole, ‘Understanding what makes “Miller & Cherry” the most significant judicial statement on the constitution in over 200 years’, Prospect Magazine, September 25, 2019). Scholars like Professor Richard Ekins, on the other hand, criticises it for encouraging “novel elevation of very general constitutional principles into actionable propositions of law” and “politically contestable” exercise of judicial power (Richard Ekins, ‘Why the Supreme Court should reverse the Scottish Court’s prorogation ruling’, The Spectator Blog, September 11, 2019). Before going into the constitutional innovations of the case, a brief outline of the not-so-past developments in the UK’s constitutional system in general appears necessary.

The UK is historically known as a system of fusion, instead of separation, of powers. Vigorous judicial review of statutory laws and political prerogatives was unheard of until recently. It is only in 1998 that the Human Rights Act marked the UK’s sliding away from its long-held notion of judicial deference to statute laws. With a signalling-of-inconsistency rule in the 1998 Act, the judicial branch entered an era of ‘democratic dialogue’ where the court would signal parliament of any inconsistency of its laws with fundamental human rights of the citizens (Philip Norton, ‘A Democratic Dialogue? Parliament and Human Rights in The United Kingdom’, Asia Pacific Law Review, 21:2 (2013), pp. 141-166). Institutional separation of the executive, legislature and judiciary began with the Constitutional Reform Act of 2005. The UK Supreme Court was established by stripping the House of Lords off its highest Court of Appeal status. Also, the Lord Chancellor, a minister of the government, lost control over the judiciary.

Changes of 1998 and 2005 are very crucial to understand this case of forceful prorogation of an unwilling parliament by a minority government. If the reforms of 1998 and 2005 mark the UK’s transformation from a system of fusion of powers towards one of separation of powers (Roger Masterman, The Separation of Powers in the Contemporary Constitution, Judicial Competence and Independence in the United Kingdom, Cambridge University Press, 2013), this Parliament Prorogation Case might have formally installed checks and balances and judicial guardianship over the UK’s unwritten constitution.

Joanna Cherry and 77 other MPs, civil rights activist Gina Miller and ex-Conservative Prime Minister John Major joined in challenging Boris Johnson’s attempt to prorogue parliament forcefully. Gina Miller and others lost their challenge in the Queen’s Bench Division in London ([2019] EWHC 2381 (QB), hereinafter referred to as “EWHC”). Joanna Cherry and other won their challenge in the Inner House of Scottish Sessions Court ([2019] CSIH 49 hereinafter referred to as “CSIH”). The matter reached the UK Supreme Court by way of appeal against both the decisions ([2019] UKSC 41, hereinafter referred to as “UKSC”). Significance of the unanimous judgment of the Supreme Court three-fold.

First, it marks a clear departure from the UK judiciary’s long-standing position of avoiding adjudication of royal prerogatives of high policy or politics. Now the UK Supreme Court is convinced that an avowed high policy or politics behind royal prerogative is not “sufficient reason for the courts to refuse to consider it” (UKSC, para. 31). Exercise of prerogatives power, whether politics-policy oriented or not, are always subject to the test of legality, propriety and reasonableness (CSIH, paras. 91, 103, 104). The idea of non-justiciability being ‘effectively jettisoned’, the court claims that “every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie” (Thomas Poole, op cit).

Second, the decision is an important development beyond the judiciary’s so-far-held position of being mindful to ‘institutional competence’ while reviewing royal prerogatives (Lord Mance, ‘Justiciability’, 40th Annual FA Mann Lecture, London 2017, p. 20-21). Earlier, the Queen’s Bench Division shielded behind Separation of Power doctrine to adjudicate the prorogation (EWHC, para. 60). The Scottish Sessions Court and the Supreme Court discarded any such Separation of Power based restraint. It is argued that judicial review of Boris Johnson’s reason-less prorogation (UKSC, para. 61) would uphold separation of power (UKSC, para. 34) and protect parliament from undue restriction (SCIH, para. 58).

Thirdly, the introduction of justiciable constitutional principles would potentially mark a new era of constitutionalism in the UK. Unanimous judgement of 11 Supreme Court judges in this case appears quite unequivocal in claiming a judicial guardianship of the constitution when it outright rejects any hesitation whatever in adjudicating constitutional principles. Prior to that, judges in the Queen’s Bench Division felt lacking in any ‘measurable standard’ to judge the principle of executive accountability (EWHC, para. 57). Queen’s Bench Division also called for judicial restraint in ‘intruding’ the territory of executive-legislature relations ‘by recognising an expanded concept of parliamentary sovereignty’ (EWHC, para. 64). The Supreme Court sharply disagreed and refused to see the government’s political accountability to people and parliament as an absolute bar to judicial review (UKSC, para. 47). Instead, a prerogative will be bad if it prevents or negatively affects the discharge of parliament’s political accountability functions and the court will intervene if required (UKSC, para. 50).

To wrap up the analysis, the UK Supreme Court in this case appears to ostensibly endorse a basic structure tendency in judicial review when it required a royal prerogative to be consistent with ‘fundamental principles’ of parliamentary sovereignty and executive accountability (UKSC, paras. 41, 48, 50, 52). Seen in this light, the Parliament Prorogation Case takes the power of judicial review far beyond the constitutional dialogue model sanctioned in the Human Rights Act 1998. It effectively places the UK Supreme Court in position of guardianship over the UK constitution - unwritten though, separation of powers and checks and balances between the executive, legislature and judiciary. The UK has perhaps taken another significant step towards a codified constitution.

THE WRITER IS DOCTORAL CANDIDATE (PARLIAMENT STUDIES), KING’S COLLEGE LONDON.