“All Hale, great judge…”
An article in Prospect Magazine, 24 September 2019, commented “… the fact Brenda Hale, who handed down the withering verdict in words of crisp fury, could carry a fully united bench of 11 justices with her makes her a chief justice of the very highest order. This, recall, is a highly contentious judicial question …” However, it posed the question “Could Johnson’s abject legal humiliation turn into political vindication?”
More on that judgment
Inevitably, we posted a brief note on the judgment in R (Miller) v The Prime Minister  UKSC 41. Our first thought was to produce a longer, more considered piece when we had had time to reflect on it; however, it has already given rise to a considerable amount of detailed, expert comment from constitutional law specialists (which we are emphatically not), beginning with:
- Mark Elliott, Public Law for Everyone: The Supreme Court’s judgment in Cherry/Miller (No 2): A new approach to constitutional adjudication?
- Conor Gearty, Irish Legal News: Johnson’s behaviour made the Supreme Court case about the very existence of the rule of law.
- Javier García Oliva, Religion, law and the constitution: Why Parliament cannot be shut down or shut up.
- Jonathan Metzer, UK Human Rights Blog: Supreme Court rules unanimously that the prorogation of Parliament was unlawful.
- Hannah White, Red Box: Supreme Court shows government powers do not extend to silencing MPs.
And see Max Steinbeis’s comment in this week’s Verfassungsblog editorial: A load of humbug. So we may well just pass on that one.
After the Supreme Court handed down its decision, a spokesperson for the Attorney’s Office said that the Government had acted in “good faith and in the belief that its approach was both lawful and constitutional”.
“These are complex matters on which senior and distinguished lawyers have disagreed. The Divisional Court led by the Lord Chief Justice agreed unanimously with the Government’s legal position, as did the Outer House in Scotland. We are disappointed that in the end, the Supreme Court took a different view. We respect the judgment of the Supreme Court.”
As one would hope: it’s called “the rule of law” – not that that assurance excused the Attorney’s rather shouty performance in the Commons on the following day. And the Daily Mail’s take?
There are no words…
When is an Act not an Act?
Parliament resumed and, welcoming MPs back to their place of work, Mr Speaker said this:
“The UK Supreme Court ruled yesterday that ‘Parliament has not been prorogued’ and that the Speaker of the House of Commons and the Lord Speaker ‘can take immediate steps to enable each House to meet as soon as possible’ to decide upon a way forward … The item relating to the Prorogation of Parliament in the Journal of Monday 9 September is expunged and the House is instead recorded as adjourned at the close of the business. I instruct the Clerk to correct the Journal accordingly and to record the House to have adjourned at the close of business on Monday 9 September until today.
Members should also be aware that Royal Assent to the Parliamentary Buildings (Restoration and Renewal) Bill, which formed part of the Royal Commission appointed under the quashed Order in Council, will need to be re-signified.
So the Bill became an Act but has become a Bill again.
On 15 September, we considered the implications of prorogation and noted that this would mean that thirteen Government bills would fall, together with all the private Member’s bills; however, since the Supreme Court declared that prorogation was “unlawful, void and of no effect” and the Speaker has ruled that the House merely adjourned, they are now before Parliament again.
Bishops back Brexit?
The College of Bishops met in Oxford from 16 to 18 September and the Church’s Press Release indicated that their “prayerful reflections” had included considerations on the national situation and “the outlook for Brexit”. Following the toxic exchanges in the Commons when it reconvened on Wednesday, a further Press Release, drafted by a group of senior bishops on behalf of the College, was released. This called for “a new tone of listening and respect in debates and describes the use of language in some cases as ‘unacceptable’, the 2016 referendum to be honoured, and for the rule of law and impartiality of the courts to be upheld.
The College’s statement was well received with regard to the proceedings in the Commons; more robust observations were made by Nick Bains, Bishop of Leeds, in his blog Language and leadership, and in the interventions in Thursday’s debate in the House of Lords by the Archbishop of Canterbury, the Bishop of Durham, Paul Butler, and Bishop of Southwark, Christopher Chessun, (conveniently summarized in Thinking Anglicans), and by David Walker, Bishop of Manchester in Rhetoric of a Playground Bully or Political Discourse? (in ViaMedia.News/).
The bishops’ call for “the 2016 referendum to be honoured” was less well received by those uncomfortable with the circumstances surrounding the event.
“Parle-moi de ma mere”
On 25 September, McFarlane P handed down his judgment on R (TT) v The Registrar General of England and Wales & Ors  EWHC 2384 (Fam) which established a definition of the term “mother” for the first time under the English common law. The proceedings came before the court by way of an application for judicial review of the decision by the Registrar General that, despite the fact that the Claimant was legally male at the time that he gave birth, he must be registered on the birth certificate as his child’s mother. Our summary of the case is here.
Birth certificates were again in the news with an item on the BBC Widow’s fight to get partner’s name on birth certificate. Because the woman and her partner were not married, it was necessary to obtain a court order proving paternity before his name could be added to the certificate. This is now subject of an e-petition which, at the time of writing, had 1,314 signatures.
Readers will be aware of the provisions within the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 regarding the inclusion of the mother’s name on a birth certificate. This is still awaiting the necessary secondary legislation, which must be approved by both Houses.
Grant-aid to places of worship
In our 4 August round-up, we considered the case of grant-aid by parish and town councils to places of worship: specifically, Lyme Regis, where the town councillors had agreed to give a grant £40,000 towards repairing the tower of St Michael’s Church, apparently against the advice of their Clerk – and this week, the issue was highlighted by the National Secular Society and others.
As we reported in June, the Historic Religious Buildings Alliance raised the current law’s lack of clarity in its 2017 submission to the DCMS English Churches and Cathedrals Sustainability Review, but nothing has been done since then. The present political climate does not appear to be conducive to an early settlement of the matter.
Downloading judgments from BAILII
Like almost everyone else interested in current case-law, we use BAILII at least two or three times every week. The Law Society Gazette reports, however, that a row has broken out between the trustees of BAILII and the Ministry of Justice about precisely how one can use the judgments.
The MoJ told someone in France who asked to reuse some of the judgments published on BAILII under the Open Government Licence, that:
“The judgments are provided by the judiciary to BAILII (assisted by staff who work at the Royal Courts of Justice). However, the MoJ is considered as the information provider of these Crown copyright publications. The MoJ agrees that these judgments can be reused under the terms and conditions of the Open Government Licence. Once the judgments have been sent to BAILII by the various teams at the RCJ, the BAILII website becomes the source of these judgments. The judgments have been put on BAILII so that they can easily be downloaded. Please go ahead and download the judgments you require from there.’
At which the Chair of BAILII Trustees, Sir Ross Cranston, commented: “We have seen the letter from the MoJ. Written without consulting us and in ignorance of our status. No one can download judgments from our website without our permission” [our emphasis].
We are utterly, utterly confused by this. Presumably, it all depends on what you mean by “download”. We frequently download entire judgments prior to summarising them, or we extract passages in order to quote them: it’s quicker and more accurate than re-keying them. So should we not be doing so? Or as an anonymous contributor commented:
“If one can’t download judgments from BAILII’s website without BAILII’s permission, what’s the point of the website? We can look at it but can’t download from it?”
- Peter Webster: Parliament and the law of the Church of England, 1943-74: an abbreviated version of the author’s forthcoming book chapter.
- Sotheby’s: Banksy’s Developed Parliament. For anyone with £1.5M to £2M to bid on 3 October. Catalogue comments: “With each day bringing new commotion to the political arena, Devolved Parliament could not be more prescient!”
And finally… I: Would you like parmesan with that?
Pastafarian pastor leads prayer at Alaska government meeting: or should that have been “Pastofarian pasta”?
And finally…II: Nuns on the run
Irish Legal News reports that Ms Elaine Kelly, a Northern Ireland barrister who gave up her practice to join the Sisters of the Adoration five years ago has left the convent. She was told that she will not be allowed to take her final vows because the congregation has become too small to meet the standards of governance of the Roman Catholic Church. Ms Kelly was called to the Bar of Northern Ireland in 1991 and to the Bar of Ireland in 2004, specialising in family law. Martina Purdy, the former BBC News NI political correspondent who also gave up her career to join the convent in the same year, has also left.
In a statement, Ms Kelly said: “When I entered the Adoration Sisters five years ago, I believed it was for life. I never saw this moment coming when I would have to leave.” She has said that she will take time out to reflect and consider her future.
Meanwhile in Ditchingham, Norfolk, the seven nuns of All Hallows Convent, announced on Monday that they are to leave the site which the Community has occupied for more than 150 years to become a “dispersed religious community”. The Sisters took the decision to offer the site to new users and selected applicants through a ‘Dragons’ Den-style event’. Two of the older Sisters will move into supported accommodation at All Hallows Nursing Home, now run by an independent charity, and another Sister has moved to undertake a solitary life on the Isle of Mull.
It looks to me as if the Prospect Magazine article cited in the introduction is over-egging the judgement. Reference to the “….withering verdict in words of crisp fury…”, doesn’t seem to me to be how any lawyers work, so I think the “fury” is fanciful. Further, the reference to Lady Hale carrying “… a fully united Bench of 11 Justices…” looks overly dramatic, as if she had stood against the tide and talked them all round to her view. I don’t know how the Supreme Court reaches its decisions, but I suspect it’s the same as for any Tribunal, i.e. a careful consideration of the arguments presented. She may have pressed on her colleagues the value of an unanimous judgement, and if she did, she may have had to accept amendments to tone it down where members of the court were a little more pointed. That could have been the cost of securing unanimity, but I don’t expect we shall ever know. No Tribunal I’ve seen in action seems to me to be seething with righteous fury in the way suggested by the headline.
When is an Act not an Act?
The statement by the Speaker (quoted above) on the resumption of sittings in the House of Commons on Wednesday 25 September 2019, following the Supreme Court judgment, that “Members should also be aware that Royal Assent to the Parliamentary Buildings (Restoration and Renewal) Bill, which formed part of the Royal Commission appointed under the quashed Order in Council, will need to be re-signified”, raises interesting questions, including whether the Speaker was correct.
The basis upon which the Supreme Court ruled that they were not precluded by Article 9 of the Bill of Rights 1688 from questioning the prorogation, and thus were able to declare it “unlawful, null and of no effect,” was that it was “not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end.” (R (Miller) v Prime Minister  UKSC 41,para 68.)
However, the Supreme Court did not consider the nature of Royal Assent and there is no reference in the judgment to this or to the Parliamentary Buildings (Restoration and Renewal) Bill. Had it been mentioned, the giving of Royal Assent surely would have been regarded as a “proceeding in Parlyament.” After all, passing legislation is part of the core business of Parliament, and the preamble to every Act of Parliament is, “BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows…” Further, the House of Lords Hansard record (volume 799, column 1401) clearly separates the Royal Assent to the Bill from the subsequent prorogation:
The following Act was given Royal Assent: Parliamentary Buildings (Restoration and Renewal) Act.
Prorogation: Her Majesty’s Speech
It is true that the Supreme Court ruled that a consequence of the Prime Minister’s advice to prorogue being held unlawful was that the Order in Council “being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.” (Judgment, para 69). But the Order in Council did not refer to the Commissioners giving Royal Assent to any Bill. The Privy Council minute simply records: “Order proroguing Parliament no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019, and directing the Lord High Chancellor of Great Britain to prepare a Commission accordingly.” The Order in Council, dated 28 August 2019, states:
“At the Court at Balmoral
THE 28th DAY OF AUGUST 2019
THE QUEEN’S MOST EXCELLENT MAJESTY IN COUNCIL
It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly”
Indeed, the statement by the Lord Privy Seal recorded in Hansard (vol 799, columns 1399-1400) clearly separates the giving of Royal Assent (which was not based on any advice from the Privy Council) from the prorogation, which was. The statement commences: “Her Majesty, not thinking fit to be personally present here at this time, has been pleased to cause a Commission to be issued under the Great Seal, and thereby given Her Royal Assent to an Act which has been agreed upon by both Houses of Parliament…” In other words, it did not require an Order in Council to authorise the issue of a Commission to give Royal Assent: the Queen was competent to do that without any decision of the Privy Council. The Supreme Court quashed the Order in Council, not the Commission so that, pro tanto, that part of the Commission that gave the Royal Assent was arguably valid.
Accordingly, I suggest that the Speaker was wrong and that the Parliamentary Buildings (Restoration and Renewal) Act should not need to be “re-signified.” Presumably, though, his statement was made on legal advice, and it would be interesting to see that advice and know who gave it.