Alex Green on "The Importance and Precarity of Accountability in the Prorogation Litigation"

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As the U.K. (or at least parts of it) lurches toward Brexit, the governing classes have managed to produce quite a number of the most pressing issues of politics, economics, and social policy. However, in the process they have managed to create some quite interesting issues of constitutional law--not merely the tediously arcane sort that tends to get constitutional lawyers excited but that tend to amount to squabbles among interpretive schools all aligned within fundamental political principles within which such squabbles may take place in an orderly way.

No--Brexit has managed to produce the sort of core constitutional issue that tends to occur only rarely and then only in moments of fundamental political crisis. These crises, of course, occur at just the moment when the political classes are at their weakest (in terms of ability, vision, loyalty to the system, and solidarity to the nation). The constituent parts of the United Kingdom appears to be no exception. That is the issue of prorogation--not in the  abstract--but in its particular and quite strategic use in the context of the quite passionate political warfare around Brexit itself. But iti is not really the mechanism of prorogation that is at the core of the issue, though it provides the structure within which the constitutional crisis that its use reflects is framed.  Rather it is the seemingly perennial issue f Parliamentary power that sits at the core of this dispute.

Of course Britain has gotten itself into all sorts of issues with respect to the relentless march of Parliamentary supremacy since the 17th century.  Some argue that the UK might well have sacrificed its first colonial empire in the New World on the alter of Parliamentary supremacy as then being asserted. Old wounds heal, of course, but prerogative is forever.  Where once the question revolved around the authority of the Crown in Parliament, now the squabbling has turned inward. How does the parliamentary system account to itself from out of the apparatus it itself has fashioned to further its own supremacy? The stakes are (as always when these things burst on the scene) quite high, and the timing could not have been more delicate.

It is in this context that I am delighted to circulate a marvelous essay by Alex Green.  Entitled, The Importance and Precarity of Accountability in the Prorogation Litigation, the essay steps back from the more technical questions that have been centered in the contemporary discourse to consider the prorogation litigation as a flashpoint for a more fundamental and abstract issue: what place does accountability hold within the constitutional order of the United Kingdom? That, after all, is the fundamental question through which those with an interest in the character of the U.K.'s political order might as, as Professor Green argues to "think very hard, as a political community, about the kind of polity we want to be."

The essay follows below. Please write to Professor Green for a downloadable version.

Alex Green is an Assistant Professor in the Department of Law at the University of Hong Kong, having joined in August 2017. His current research, which has been funded by the Modern Law Review, concerns the moral nature of legal statehood and its role in determining the content of public international law. More broadly, he is interested in legal and political theory, moral philosophy, private law, public international law and human rights. Alex currently teaches LLB and JD Tort Law and is Deputy-Director of the Outgoing Exchange Program.​

The Importance and Precarity of Accountability in the Prorogation Litigation

Alex Green

University of Hong Kong

In the United Kingdom something of a constitutional war is raging around Her Majesty’s recent prorogation of Parliament, which is due to last for the unusually long duration of five weeks (until October the 14^th). To the outside observer, this episode in the United Kingdom’s constitutional history might seem rather odd. Prorogation, in the ordinary course of events, raises no serious constitutional issues. Indeed, the discontinuation of Parliament without its dissolution is characteristically employed, quite uncontroversially, to close one Parliamentary session ahead of another. Nonetheless, there have been many interesting and important constitutional questions raised in the Supreme Court of the United Kingdom over the last few days in the joint appeals of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland, in which the applicants seek a declaration of illegality in relation to Parliament’s most recent prorogation. Politically, their motivation for doing so is clear: the applicants believe, quite plausibly in the view of many, that the Prime Minister advised the Queen to prorogue in order to prevent Parliament from interfering with his government’s plans to push through a ‘no-deal’ Brexit.

Perhaps the most important two issues of principle raised in these appeals – if they can be stated so simply – are whether: 1) the prerogative power of the executive to prorogue Parliament is subject to any substantive legal limitations; and 2) whether, if such limitations do exist, the executive’s use of its power to prorogue should be subject to judicial scrutiny. Taken together, these points have generated considerable controversy. Under the auspices of the UK Constitutional Law blog, which was quoted extensively in the oral proceedings, both issues were considered by Yossi Nehushtan, Dean Knight and Professor Alison Young, the former by Jacob Rowbottom, Professor Paul Craig and Ewan McGaughey, and the latter by Professor Stephen Tierney, Alan Greene, Robert Craig and Professor Timothy Endicott. Not unusually for constitutional discussions amongst academic lawyers, points of convergence in often seemed lost amidst cacophonous disagreement. Within the confines of this blog post I cannot hope adequately to address every argument made in the context of this debate, many of which were both sophisticated and nuanced. Instead, I want to take a step back from the immediate legal issues and suggest that these two questions have created, as it were, a flashpoint for a more fundamental and abstract issue: what place does accountability hold within the constitutional order of the United Kingdom?

Constitutional and Philosophical Background

The United Kingdom possesses a system of representative government in at least two respects. First, members of the House of Commons, the primary house of our legislature, are elected on the basis of more-or-less regular popular elections (at least since the passage into law of the Fixed-term Parliaments Act 2011). Second, our executive is typically drawn from the political party that won the highest number of seats in that house during the last general election. As such, both our legislature and executive characteristically have some claim to represent the voting populace of the United Kingdom, even if the latter’s claim is more attenuated (given the indirect means of its appointment). The constitutional importance of this point is clear: in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, which was cited by Lord Pannick on behalf of Gina Miller during his oral submissions, Lord Hoffmann held that ‘the unique authority Parliament derives from its representative character’. If we are to accept some conception of this authority as fundamental to the United Kingdom’s unwritten constitution, then the immediate philosophical question becomes one of the nature and normative force of representation as a pillar of its constitutional democracy.

Quite often, politicians elected to legislatures or appointed to government will describe their representative role in terms of ‘popular will’. Whilst in some cases this characterisation seems overblown, if not downright disingenuous, it remains a popular story: the elected act as delegates – mouthpieces for the wishes of the electors – rather than as trustees, appointed by their constituents to act in their stead. In a previous piece, I argued that, whilst rhetorically forceful, appeals to popular will misconstrue the normative force of majoritarian procedures, including our election of legislative representatives. Even when private individuals have the opportunity to vote directly on policy, the value of their collective decision turns on the respect that ‘one person, one vote’ embodies, not upon the notion that majority rule somehow represents a collective meeting of minds. Indeed, several scholars have argued that the latter is extremely unlikely (see, for example, Andrew Rehfeld, David Broockman and Christopher Skovron, Christopher Achen and Larry Bartels), if not impossible. I would suggest, on this basis, that however we should understand representative government within the UK constitutional context, conceptions that turn upon popular will are not seriously in the running.

The Moral Value of Accountability

This brings me to my positive argument. Representation, whether within the legislative or executive branches of government, matters because it establishes the accountability of those who wield power to those subject to it. In particular the periodic removal or confirmation of our representatives lessens the possibility of persistently unpopular rule, provides a potential means for preventing tyranny, and facilitates the removal of demonstrably incompetent governments. The framers of the United States Constitution recognised this, understanding the people ‘not as rulers, but as judges able to check the legislature’. To these practical points we can add something slightly more esoteric, if no less important: accountability also presents an attractive picture of the understanding of individual personhood upon which the United Kingdom is constituted. Insofar as our rulers accept accountability to us, they acknowledge that our interests are at stake when rule is exercised. This expresses an important form of respect: governments that hold themselves accountable to the governed facilitate the agency of those subject to political power and avoid treating them as mere objects or bearers of externalities. Such governments at least begin to take their subjects seriously as individuals, rather than as ‘human resources’, as it were, to further their own ends.

The Prorogation Issues

The degree of respect expressed by accountability, as well as the other benefits that it offers, depend upon the manner in which it is instituted. When the available mechanisms for accountability are relatively few and ineffective, the respect expressed by their existence will be purely nominal. For instance, whilst instrumentally important in many respects, the power to deny reappointment to our legislative representatives provides relatively minimal accountability, especially where it is infrequently and irregularly available. Prior to the 2011 Act, general elections were held when the government deemed it appropriate, subject to some constitutional conventions, such as the rule that elections must be held before the new parliamentary term. Nonetheless, the executive determined when popular accountability could be exercised. No system of representation under which the accountable exercise such control over the means of their accountability can demonstrate more than a pale, thin conception of what is owed to the governed.

It is at this point that the two fundamental questions, mentioned above and raised in the prorogation litigation, come into sharp focus. If the executive’s power to prorogue Parliament is subject to no substantive legal restrictions and cannot be subject to review by the courts, then there exists in principle no limitation upon the Prime Minister’s ability to take Parliament out of the equation. To quote the submissions of Lord Pannick (time index 02:29:00 onwards), on the assumption that there is no such justiciable limit, ‘what happens if another Prime Minister were to decide that he or she wishes to prorogue Parliament for six months, or a year?’ The answer, it seems, would be the complete removal, for that duration, of both houses as forums for popular accountability.

For a constitutional order such as the United Kingdom, this would be morally disastrous. As Professor Craig has argued, quite apart from its legislative function, Parliament enables crucial debate over, and scrutiny of, executive action. It must be borne in mind that private individuals in the United Kingdom have relatively few effective means for holding the government directly to account, at least where they are not personally effected by executive decision making. It is partly for this reason that Members of Parliament can be contacted directly by their constituents, so that the former may raise issues on their behalf. Furthermore, it is only over individual Members of Parliament – and not over the government as such – that private individuals hold, collectively, the power to deny reappointment. In this precarious context, to stymie Parliament’s oversight is to hamstring popular accountability, with all the incidental disadvantages that entails and all the disrespect for individual agency it implies.

Conclusion

The Supreme Court of the United Kingdom might be understandably hesitant to characterise the issues raised by the current prorogation litigation in such explicitly moral terms. Given that justiciability is central to both cases, the appearance of avoiding what might be (however unwisely) characterised as ‘high politics’ may be perceived by some of their Ladyships and their Lordships as crucial. But as observers we should be under no illusions: these cases do raise issues of fundamental moral, political, and constitutional importance. In the United Kingdom we have the dubious honour of being subjects of a crown, not citizens of a republic. However, before the Prime Minister advised Her Majesty to prorogue Parliament – with the seeming intention of stymieing its oversight – we at least had the assurance that our elected representatives were standing ready to hold his government to account. If our common law should also fail in that regard and permit the executive to sidestep all established mechanisms of popular accountability, we will need to think very hard, as a political community, about the kind of polity we want to be.

Alex Green, Assistant Professor of Law, University of Hong Kong

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