The UK Prorogation Decision in Miller v Prime Minister, and What It Means for Canada
Jake Eidinger, 3L, Volume 78 Executive Editor
Image by Arno Mikkor
Opponents of United Kingdom Prime Minister Boris Johnson and some opponents of Brexit cheered last month at the unanimous United Kingdom Supreme Court decision nullifying Johnson’s prorogation of Parliament. Careful students of the relationship between the courts and Parliament may have been surprised, however, at how ready and willing the 11 judges were to declare Boris Johnson’s advice to the Queen unlawful, clearing the way for Parliament to resume its proceedings in the weeks leading up to the now-elapsed Brexit deadline of October 31.
Canadians might recall that Stephen Harper used similar tactics in 2008 to escape a vote of non-confidence. While opponents called on the Governor General to refuse Prime Minister Harper’s request, or for an amendment to the Constitution forbidding such behaviour in the future, it did not seem to occur to anyone to seek a declaration in court that the Prime Minister’s advice itself was unlawful. Future Canadian Prime Ministers contemplating such a stratagem would do well to heed the UK Supreme Court’s judgment, lest they too find their advice to the Crown under review in court.
What is prorogation?
Prorogation suspends both houses of the legislature, kills most legislative business and suspends all committees. [1] The ability to prorogue Parliament is a prerogative power of the Crown – those vestiges of royal authority that have not been displaced by statute. Since the advent of responsible government in the 19th century in Canada, prerogatives are exercised by the monarch or her representative solely on the advice of her democratically elected councillors (i.e., the Cabinet). [2] At the end of a prorogation, the new session typically begins with a Speech from the Throne, setting out the government’s agenda for the session. Typically, this power is invoked as a sort of reset, to allow the government to refocus its intentions.
The limits of judicial review of prerogative powers
The royal prerogative is a branch of the common law. [3] As guardians of the common law, the courts hold the power to define the limits of the royal prerogative. As the UKSC noted, this has been true since the 1611 Case of Proclamations, which held that “the King hath no prerogative, but that which the law of the land allows him.” [4] Parliament may also modify or abolish a prerogative power by statute.
Like the UK courts, courts in Canada have similar powers to set the outer limits of a prerogative power. [5] Moreover, in Canada, claims under the Charter give courts greater authority to review exercises of a prerogative power. [6] The mere existence of a written constitution, which offers Canadian courts two separate grounds of review in ss. 24 and 52, is an important distinguishing feature. The pains the UKSC went through in Miller to ground their decision in the UK’s unwritten constitution would not be necessary here. [7]
But assuming there is no breach of the Charter, the jurisprudence in both Canada and the UK previously suggested that judicial review of government action under a prerogative was only available so long as the power itself was justiciable “by nature”. In Council of Civil Service Unions et al v Minister for the Civil Service (“Civil Service Unions”), Lord Roskill in the House of Lords gave examples of certain prerogative powers which would not be justiciable:
But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another. [Emphasis added.]
Lord Diplock in the same case framed the test slightly differently. In his view, an exercise of a prerogative would be reviewable in court if its subject matter affected the rights or legitimate expectations of an individual.
In 2001, the Ontario Court of Appeal relied on Civil Service Unions in refusing to review Prime Minister Jean Chrétien’s advice to Her Majesty to deny Conrad Black a lordship. [8] The granting of honours was not a prerogative power amenable to the judicial process. Although Black argued that Chrétien was motivated by personal animus, Laskin JA held that “even if his motives were questionable, they cannot be challenged by judicial review.” [9]
Prorogation is not on Lord Roskill’s list, but it bears the same qualities as a decision to dissolve Parliament. Whether Parliament is sitting or not affects neither the rights nor legitimate expectations of any individual in the same way that, say, the denial of a passport might. Counsel for Prime Minister Johnson made this argument to the UKSC. Rather than address the point, the Supreme Court sidestepped the issue by purporting to frame the limits of the prorogation power, rather than review this particular exercise of it. [10] Those limits are, according to the UKSC, that no prorogation can have the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions. [11]
The Court’s reasoning in Miller is understandable but raises some analytical concerns. Parliament’s ability to hold the government to account is attenuated as a prorogation gets longer and begins to intersect with extraneous political events, like Brexit. As the court notes, there must be a tipping point at which prorogation becomes unlawful, for democracy’s sake. [12] But is that point five weeks? Four? What if there had been no impending Brexit deadline? As Byron Shaw, Awi Sinha, and Emily Leduc-Gagne point out at McCarthy Tétrault, one can easily come up with hypotheticals that push the Court’s standard to its limits.
As Professor Daly has already noted on his blog, the decision blurs the distinction between justiciability and substantive review. Despite the court’s insistence that the standard can be applied in practice, it is difficult to separate it out from the immediate context of Brexit. The Court notes at para. 57 that a prerequisite to the entire inquiry is that prorogation frustrate or prevent Parliament from discharging its constitutional functions. Johnson’s actions in the context of Brexit met this high bar because of the impending exit deadline. What other roguish parliamentary tactics would meet this high bar? Would it be permissible, for instance, to prorogue a provincial legislature for 4 months to avoid making waves in a federal election? [13]
In Miller, the UKSC’s microscopic evaluation of political strategy begins to look less like a common law court framing a prerogative power and more like judicial review. The court has, while relying on ancient authority and on unwritten constitutional principles, swept an entire realm of heretofore unreviewable executive decision-making into the realm of judicial review. The UKSC may be on solid ground in terms of democracy and the rule of law, but as Daly notes it is a departure from the traditional view of the prerogative as the residue of “discretionary or arbitrary authority”.
Analytically, if we wish to do away with the vestiges of absolute executive discretion, would not the cleanest way forward be to curtail the prerogatives by statute, as the UK has done with the dissolution power? At the very least, not only for clarity but for the sake of future litigants seeking to hold public office holders to account, we need to know which prerogative powers from Lord Roskill’s list can be limited by a “reasonable justification” inquiry.
What does this mean for Canada?
If Miller is correct, we have cause to revisit the Federal Court’s decision in Conacher v Canada (Prime Minister), [2010] 3 FCR 411. There, Democracy Watch and its President, Duff Conacher, applied for judicial review of Prime Minister Harper’s advice to the Governor General to dissolve Parliament early for an election.
Citing Black, Justice Shore held that the Prime Minister’s advice for dissolution “is not, in and of itself, reviewable, because it does not affect the rights or legitimate expectations of an individual and is a matter of high policy that is only reviewable on Charter grounds”. [14] The Federal Court of Appeal affirmed Shore J’s decision, though did not comment on the justiciability argument. [15] Leave to the Supreme Court of Canada was refused. [16]
While Prime Minister Harper’s advice might have been reviewable under Miller, the outcome may not have been any different. Dissolutions for elections are ordinary events. It is difficult to argue that going to the polls somehow frustrates Parliament’s ability to hold the government to account. The same might not be true of advice to prorogue, though, for all the reasons above.
It is interesting, still, to think about a Canadian court calling on a Prime Minister to offer “reasonable justification” for what would have heretofore been an unreviewable decision. Yet even if a Canadian court struck down a prorogation as being an unlawful exercise of the prerogative, it may not have repercussions in the political process. The opposition parties in the 2011 election made Mr. Harper’s alleged abuses of power and contempt for Parliament a centrepiece of their platforms and were rewarded with a Conservative majority government. And notwithstanding Mr. Johnson’s illegal advice to the Queen, his Conservative Party now holds a lead in the polls leading into a general election.
Notes
[1] Erskine May, Parliamentary Practice, 25th ed (LexisNexis, 2019), at para 8.6, online: https://erskinemay.parliament.uk/section/6499/effect-of-prorogation/.
[2] Refusing advice is a last resort, meant to avoid constitutional crisis: Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2017) (loose-leaf updated 2018 release 1) at 9.7(a).
[3] Hogg at 1.9.
[4] R (on the application of Miller) v The Prime Minister, [2019] UKSC 41 at para 32.
[5] See Canada (Prime Minister) v Khadr, 2010 SCC 3 at para 36.
[6] Khadr; Operation Dismantle v The Queen, [1985] 1 SCR 411.
[7] Miller at paras 39-40; Constitution Act, 1982, ss. 24, 52.
[8] Black v Canada (Prime Minister) (2001), 54 OR (3d) 215 at para 36 (CA).
[9] Black at para 65.
[10] Miller at para 36.
[11] Miller at para 50.
[12] Miller at paras 44, 46.
[13] Some have accused Ontario Premier Doug Ford of this, who avoided the issue by having the Legislature vote to adjourn rather than seek a prorogation from the Lieutenant-Governor: Canadian Press, “Citing unprecedented first-year pace, Ford government to adjourn for extra-long summer break”, CBC News (June 6, 2019), online: https://www.cbc.ca/news/canada/toronto/queens-park-summer-break-1.5164942.
[14] Conacher at para 29.
[15] 2010 FCA 131.
[16] 33848 (20 January 2011).