The Supreme Court’s decision in Miller/Cherry that suspending Parliament was unlawful is an extraordinary contribution to a long term trend in Western countries: the judicialisation of politics, that is, the transfer of political, social and economic issues form elected governments to unelected judges.
The decision to prorogue or suspend the UK Parliament, for a matter of weeks only in this case, was made for the same reason that all government decisions are ultimately made – to assist the ruling party in its political agenda.
There is no question here of misleading the Queen, because she is obliged to act on such a request from her ministers.
But this is the kind of question that has traditionally been considered outside the realm of judicial review, chiefly because governments are accountable to the electorate and not to the courts for their political decisions. If the electorate disapproves of a government action, it can demonstrate that disapproval at the next election.
It is possible to abuse the power of prorogation by using it to stop a vote of no-confidence in the government. But that is not what happened here. The government would welcome such a vote so it could go to an election. But the opposition groups, while refusing to pass the government’s legislation, have not been prepared to have these questions resolved by the electorate.
There has never been a challenge in the Australian courts to a decision by the Executive to prorogue a parliament and it has always been assumed that this kind of political question was not one for the courts. The question of whether a State Governor or Governor-General might refuse to prorogue a parliament on the basis that, for example, the government was trying to avoid a vote of no-confidence, has arisen on occasions but obviously involves a different issue.
It is significant that the decision of the Supreme Court was one of four judicial considerations of the prorogation challenge— by two Scottish courts and two English courts. Two of those courts, one Scottish and one English, rejected the challenge on the ground that it was a political and not a legal question.
The Supreme Court has had the final word but, given the weight of previous authorities, it might be thought that the courts would err on the side of caution and decline to become involved in the political process.
What next? Does this mean the courts can review the date on which an election is to be held, or the appointment and removal of ministers? Whatever the merits of the decisions to prorogue the parliament in this case, this was ultimately a question for the electorate and not for the Supreme Court, which has made a dangerous intrusion into politics.
The result of the 2016 referendum was never accepted by many powerful forces in Britain and one of their tactics to stop Brexit has been a series of court cases. Regrettably, in this instance, their anti-democratic conduct has been rewarded.
Michael Sexton SC is in Australian lawyer and the author of several books on Australian history and politics; this post is based on an article published in The Australian on 26 September 2019