The appeal in Miller (No. 2) is due to be heard from 17-19 September in the Supreme Court. I have elsewhere set out my view of the merits of Ms Miller’s application but one issue that has perhaps been underexplored so far is the problem of what remedies Ms Miller is seeking.
In the early stages of this case, the focus has very much been on the core issue of justiciability. The decision of the Inner House of the Court of Session, however, perhaps means that some difficult questions that were not really addressed in the Divisional Court hearing, due to lack of time, can no longer be ignored. This litigation has suddenly got much more serious, and therefore serious questions must now be answered.
The sheer speed and scale of this litigation has meant that the Written Cases for the parties were only released on the afternoon of 16 September. Happily, this now means it is possible to ascertain what precise remedies are being sought by Ms Miller. Previous evidence was available in the skeleton argument in the Divisional Court which was kindly released to the public. Finally, there are interesting details about the primary remedy sought that are set out in a letter to the Government published by Ms Miller on 11 September.
In short, the primary remedy requested is a declaration that the advice proffered by the Prime Minister (‘PM’) to the Queen to exercise the prerogative of proroguing Parliament is ‘null and void and of no legal effect’ as it was motivated by an improper purpose. Further, Ms Miller argues that an undertaking given by the government should be interpreted as a commitment to advise the revocation of the Order in Council in this matter if Ms Miller wins. Finally, a mandatory order is otherwise sought. This paper seeks to explore some of the implications were any of these remedies to be granted.
A declaration that the advice given by the Prime Minister was unlawful
The legal effects of a declaration that the PM’s advice was unlawful raise some deep questions of legal and constitutional theory. It is to the credit of Lord Pannick and his legal team that they have in no way shirked the troubling implications of the remedy they appear to be seeking.
In the letter of 11 September mentioned earlier, Ms Miller wrote to the Government following the judgment in the Scottish Inner House. The letter stated that because the decision was by a ‘Superior Court… this means that any Order in Council made on the basis of such decision is “of no effect” and null and void whether or not it has been quashed and this position is incapable of suspension’. Ms Miller relied on the decision in Ahmed for the ‘no effect’ claim and pointed out that ‘no application has been made to stay that ruling’.
Ms Miller went on to claim that not only was the PM’s advice unlawful but also the ‘Order in Council made on 28 August 2019 is null and void’. Finally, she claimed that there ‘is no basis for Parliament to be prorogued and the Commissioners were acting (wholly innocently) without legal authority to do so’. She noted that the Government had undertaken to ‘comply with the terms of any declaration made by the court’ and asked the Government to ‘inform us what steps will be taken to reconvene Parliament with immediate effect’ and that ‘in our view, Parliament can simply resume its functions’.
Ms Miller’s argument on the primary remedy sought can be summarised, therefore, as being that the advice given to the Queen was unlawful and this consequently vitiated the Order in Council that followed the advice as well as the Commissioners proceedings in Parliament that led to the prorogation in Parliament.
Orthodox view of the basis of judicial review
The claims in the letter are grounded in the classically orthodox ‘ultra vires’ view of the basis of judicial review which insists that administrative acts must be grounded in substantive legal authority. Most closely associated with Sir William Wade and Christopher Forsyth, the ultra vires doctrine treats decisions that are unlawful as void ab initio and a nullity.
Treating all ultra vires administrative acts as void, however, has some unfortunate consequences on occasion and in partial response, Forsyth has developed the ‘second actor’ doctrine which states that where a legal act is a ‘jurisdictional requirement’ or a legal ‘precondition’ for another legal act, then both acts are void if the first is unlawful. In other cases, the void decision can be treated as one of fact and the court in its discretion can mitigate the potential full implications of void decisions.
With impeccable logic, Ms Miller’s legal team has rigidly applied this doctrine to the current situation. Not only do they claim that the PM’s advice is void and of no effect, they also claim that this vitiates the Order in Council, and furthermore the Commissioners (who conduct the prorogation proceedings in Parliament) were ‘acting (wholly innocently) without legal authority to do so’. They appear thus to be committed to the second actor theory that means that an unbroken chain of conditional legal acts is entirely vitiated if the first act is unlawful.
As it happens, this author finds the logic of the vitiation of the entire legal chain in this case to be persuasive, at least when taken in isolation and on the assumption that the PM’s advice was indeed unlawful. Problems arise, however, when the wider legal implications of such a legal finding are considered. At that point, serious difficulties arise for Ms Miller, as Richard Ekins has also argued, and they concern Article IX.
Article IX, Bill of Rights 1689
Article IX is arguably the most important single provision in the law of England and Wales (this paper focuses solely on English law).
That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.
If the full implications of Ms Miller’s claimed remedy are followed through to their logical conclusion, it is suggested that Article IX is directly engaged. In this author’s view, the Commissioners who conduct the actual ceremony in Parliament that results in prorogation are undoubtedly conducting ‘Proceedings in Parliament’.
If Ms Miller is correct, they did so ‘without legal authority’ to do so and the courts should make a declaration to that effect. It is difficult to see how such a declaration could escape the express Article IX prohibition on the courts doing precisely this kind of thing. It would mean that the proceedings would be ‘impeached or questioned in …Court’. The idea that Parliament could simply ‘reconvene’ is all of piece with the claim that the whole legal chain is vitiated. It is seriously questionable.
A declaration that the Commissioners acted without legal authority would therefore breach Article IX. Such a declaration cannot be granted by ‘any Court’. As I have argued elsewhere in the context of the Peter Hain case recently, Article IX is not an ‘ouster’ clause. Instead, the courts do not even have jurisdiction over Parliament in the first place. There is only one court of unlimited jurisdiction and that is the High Court of Parliament.
The next step in pursuing the inexorable logic of such a finding is that the Commissioners proceedings in Parliament have a necessary jurisdictional precondition which is the Order in Council that instructs them to carry out the proceedings in Parliament. It must follow, therefore, that even if it is now clear that some Orders in Council can now be the subject of judicial supervision, an Order in Council that triggers prorogation cannot be declared void without leaving the Commissioners lacking any legal authority for conducting its proceedings in Parliament. Indeed, this is what Ms Miller claimed in her letter of 11 September.
Given the Commissioners have no legal discretion whatsoever and act solely as a result of, and under the authority of, the Order in Council, it is suggested that Article IX must also encompass the Order in Council which therefore cannot be impugned in any Court because of Article IX. This follows logically from the second actor doctrine and is a result of the complete absence of any independent legal discretion on the part of the Commissioners. An Order in Council is a jurisdictional requirement or precondition for prorogation proceedings to occur in Parliament. If the Commissioners are protected by Article IX, it is challenging to see how the Order in Council is not, given the unbroken legal chain connecting them.
The next step is also crucial. If the Order in Council cannot be invalidated, can the advice given by the PM be declared to be unlawful? Ms Miller must be committed to the proposition that the lawfulness of the advice is an example of a jurisdictional precondition. This is because she claims that the Order in Council is invalid precisely because the advice is unlawful. It must follow that there is an inexorable legal chain, or jurisdictional precondition, connecting the advice of the PM, the legal decision of the Queen to issue the Order in Council and finally the proceedings conducted by the Commissioners in Parliament to prorogue. This unbreakable chain, it is suggested, links the advice inexorably to the prorogation procedure and therefore unavoidably also engages Article IX.
An equally unpalatable alternative option
If the prospect of claiming that lawful advice is a jurisdictional precondition to issuing an Order in Council and the prorogation proceedings in Parliament is unpalatable, it is possible that Ms Miller could have claimed in the alternative that only the advice itself was unlawful but the remaining legal stages are unaffected for various reasons including, presumably, Article IX. This would imply a ‘break point’ in the chain of legal validity. To be clear, Ms Miller is not currently claiming this but instead seeks to interpret an undertaking by the government as a commitment to advise revocation of the original Order in Council. The legal implications of such a revocation are not explored in the Written Case, but they are difficult and are addressed further below.
The alternative option has no less unpalatable implications. Unlawful advice is void. As a matter of law, it is as if it was never given. As Forsyth has argued, the courts have stepped in to mitigate the effects in some situations by effectively treating some unlawful decisions as issues of fact not law. The problem with this is that such a doctrine may be sensible, for example, where the ripple effects of treating an administrative act as unlawful could affect the rights of third parties who are directly legally affected in some way. That is far from the circumstances here.
There is a further problem for this approach. If the advice is declared unlawful and of no effect, but the Order in Council is not, this means that in effect the Queen decided to prorogue Parliament herself without the benefit of ministerial advice. The constitutional, legal and political implications of such a declaration, not least in the media and amongst the general public in the toxic and febrile political discourse of our current times do not remotely bear thinking about. It is perhaps no surprise, therefore, that Ms Miller has not claimed this alternative remedy.
Ms Miller is thus faced with something of a dilemma. Either she must claim that the Queen acted on her own without advice to prorogue Parliament, or the Order in Council laid down by the Queen was unlawful. Neither would play well in the media. In terms of the ‘high policy’ test that governs whether an exercise of a particular prerogative falls above or below the line of justiciability, it might be thought that both these fairly unpalatable options raise significant ‘high policy’ concerns quite independent of those canvassed in the Divisional Court hearing (assuming the court even has jurisdiction).
It is therefore suggested that the advice to the Queen on the prorogation prerogative is so closely and inexorably linked to the actual prerogative power that it must also be drawn under the ample cloak of Article IX in this context. The impact of Article IX would mean that, regardless of issues of justiciability, the courts do not even have jurisdiction to consider this decision. It is suggested that the ordinary courts are courts of limited jurisdiction, not least because of Article IX, and this case might well be a neat example, and opportunity, to illustrate that legal fact. It must be mentioned that the Government has conceded that if the advice was unlawful, the courts do have jurisdiction to make a declaration.
Ms Miller puts in the further alternative another potential remedy which is a mandatory order. What the order would say is not spelled out but it could have required the PM to advise the Queen to issue a Proclamation under the Meeting of Parliament Act 1797 which, as amended, results in Parliament sitting on a date after the date set out in the Proclamation. A mandatory order that started a new parliamentary session would not appear to unwind the previous prorogation and it must be assumed that a Queen’s Speech would immediately ensue. The main problem with this proposal is that it is hard to see how the court could so order without also expressly or implicitly declaring that the original advice to the Queen was unlawful, with all the unpalatable consequences set out earlier. Perhaps this is why it is not being sought.
Alternatively, Ms Miller may want the mandatory order to require the Government to revoke the Order in Council if the undertaking given by the Government is not construed in the way suggested by Ms Miller. This would have the same effect on the Order itself as if the court quashed it. Both these two options would raise further problems for Ms Miller. On one view a mere quashing order would not require revocation of the Order in Council. Only a mandatory order could do that.
In relation to a mandatory order, that might arguably also have no effect on the prorogation because it would assume that there is a legal ‘mirror’ to the normal jurisdictional precondition which would mean that the Commissioners could exercise a power to reverse prorogation somehow after it is completed. Are there precedents for the exercise of such a power? Has Parliament ever been ‘unprorogued’ rather than just meeting for a new parliamentary sitting?
On the other hand, if the court were to issue a mandatory order that was effective in requiring the Commissioners to conduct proceedings that ‘unwound’ the prorogation, it is difficult to see how that would escape Article IX. The fact that Ms Miller solely focuses on the Order in Council in the Written Case perhaps avoids the consequential difficulties and full implications of what such a court order would actually mean.
Another major problem is that it is by no means clear that a mandatory injunction can be issued against the Crown in such circumstances. In M v Home Office, the House of Lords held that an injunction could be granted against a Minister of the Crown acting in his official capacity as Secretary of State, but not his private capacity. The court said that ‘the Crown’s relationship with the courts does not depend on coercion’ (425).
It might well be argued that such an injunction could equally be directed not at the Crown but at the Prime Minister in their official capacity. However, it is one thing to say that ministers are subject to injunctions of the court and can be found in technical contempt in their public capacity in extremis. It is quite another for the court to direct a minister to exercise his discretion, contrary to his clearly stated core policy, to give formal advice to the Queen to exercise a particular prerogative power in a particular way. This could also arguably be seen to be ‘high policy’ falling well within the mischief so persuasively set out in the Divisional Court judgment.
Furthermore, if Ms Miller continues to argue that the provision of advice by the PM is a jurisdictional precondition to the Queen acting on that advice, it is difficult to avoid the conclusion that the court would in effect be ordering the Queen to issue a proclamation via a mandatory injunction. This might be thought to require a further significant alteration of the rule in M v Home Office, as well as overturning the centuries-old rule that coercive orders cannot be granted against the monarch in her own courts.
Issues relating to the potential remedies sought by Ms Miller have not been ventilated in court hearings thus far, presumably due to lack of time. That omission may not be sustainable in the Supreme Court hearing.
It is suggested that Counsel for Ms Miller might usefully be asked to answer at least some of the following questions:
- What are the full legal effects of the remedies being sought?
- If a declaration is granted, are all stages of the prorogation process unlawful and ‘of no effect’?
- If not, did the Queen unlawfully prorogue Parliament because as a matter of law she acted without ministerial advice?
- What are the claimed limits of Article IX for all the different potential remedies?
- Is the advice to prorogue a jurisdictional precondition for a valid Order in Council?
- Are there any examples of a prorogation being ‘reversed’ or ‘rewound’ by the Commissioners? Is it even legally possible?
- If the Order in Council is quashed, what is the legal effect on the prorogation process undertaken by the Commissioners?
- Furthermore, if it is quashed, does Ms Miller think any legal duties are automatically imposed on the Commissioners? If so, what are they?
- If a mandatory injunction is sought, who is it against and what legal power are they required to exercise?
- If revocation is mandated by order, what is the legal effect of that on the Commissioners?
- How would a court order that required the Commissioners to ‘unwind’ prorogation escape the Article IX prohibition?
- Why is Ms Miller not claiming a mandatory order for the Government to advise the Queen to start a new parliamentary session by Proclamation?
- Would a mandatory injunction breach the principle that the judiciary respect decisions of the executive within their lawful province (per Nolan LJ in M v Home Office (CA))?
The manifest difficulties over the potential remedies in this case raise a set of extremely serious problems that would have to be confronted in detail were the Divisional Court decision to be overturned. The most serious of those problems is the very considerable concern that a declaration of the form apparently sought by Ms Miller would appear to breach Article IX, arguably the most important provision in the entirety of English law. Alternatively, if somehow the Article IX issue could be skirted, there may be some politically explosive effects, involving the Queen, which should at all costs be avoided in the author’s view.
The author would like to thank Tom Poole, Paul Craig, Stephen Laws, Aileen McHarg, Jack Williams, Lindsay Stirton and Richard Ekins for their helpful, and astonishingly speedy, comments on previous drafts. The usual disclaimer applies.
Robert Craig – Brief biography
AHRC Doctoral Researcher, University of Bristol
17 September 2019