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United Kingdom Division of Power

A subpage to the page von Christian Heinze, vom 17.3.2020.

On Charles Moore and the Miller-2-Case.

By Christian Heinze, on 17th March, 2020.

In an Article of 7th February, 2020, the esteemed Telegraph-Journalist Charles Moore has criticised the Supreme Court for its judgment of 24th September, 2019 in the Miller-2-Case (Miller/Cherry [2019] UKSC 41-2) declaring unconstitutional the order made, upon a suggestion by Prime Minister Johnson, in the Privy Council held by the Queen on 28th August 2019. The Council ordered that the Parliament be „prorogued“ (ending its pending session) „on a day between 9th and 12th September to the 14th October 2019”. This period was part of an important phase in the political struggle within the United Kingdom and between it and the European Union which constituted the probably most important item on the agenda of the House of Commons late in 2019.

Moore‘s bases his criticism on the „Bill of Rights“ of 1688 declaring that no “proceeding of Parliament” should be “impeached" in a Court. With a view to the prorogation of August 2019 Moore concludes: „This means, procedurally, that it“ [Parliament] „must allow the Government to set the business of the House.“ Mr. Moore also refers to the Government and the Crown being endowed with a prerogative right of prorogation and the British „convention“ providing that Parliament has ultimate authority but „a duty to let the Government govern“. He sums up by defending the Britisch Constitution against an American-or-European style separation of powers balancing judiciary and legislature, that never existed before in this country, holding that „it was better thus“. He calls for action to redefine the task of the Supreme Court, review the establishment oft he Judiciary and restore the non-justiciable right of prorogation as an urgent task of reestablishing the British Constitution. The conclusions drawn by Mr. Moore are not convincing.

While it is true that „prorogation“ comes into force by being read to Lords and Commons assembled in the house of Parliament, this reading cannot be considered a „proceeding in Parliament“ in the meaning of the Bill of Rights. As appearant inter alia from its first two operative clauses it was the foremost intention of the Bill of Rights to forbid any „pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament“ and any „dispensing with laws or the execution of laws by regal authority…“. The Bill affords protection of the exclusive authority of Parliament to act according to its own free will against „regal“ intervention. The clause mentioned by Mr. Moore extends this protection to „freedom of speech and debates or proceedings in Parliament“ to procedures of forming and expressing the will of Parliament. The reading of prorogation, although taking place in Parliament, was not a proceeding of that sort. It was not an objective of the intended protection of Parliament from impeachment. It was rather the prorogation itself that constituted an impeachment of Parliament and was therefore inconsisent with the Bill of Rights.

Prorogation appears equivalent to an inpeachment of an act of Parliament as it prevents Parliament not only from a particular action but from exercising its authority altogether during a period of time. This may prevent Parliament from taking action that can only be taken effectively during that period. A right of prorogation therefore contradicts and would at best amount to an exception from the Bill of Rights, and the same applies in principle to a general right of Government to „set the business“ of Parliament. If such a right is validly based on „convention“, then this exception, in order not to frustrate the intention of the Bill of Rights, must be narrowly limited and justified by sufficient reason. In its judgment of September 2019, the Supreme Court has shown that the convention of prorogation is limited to the numer of days needed for the preparation of a Queen’s speech and to some other rare and specific cases. It does not extend to a prorogation lasting several weeks imposed without any resons of specific necessity by the Government or the Privy Council.

It is interesting to note that Mr. Moore, by referring to the Bill of Rights ruling on „procedings of parliament“ has not read it carefully. Correctly quoted, the Bill prohibits impeachments of „procedings in Parliament“. It could reasonably be said that the phrase „in Parliament“ is closer to referring to anything happening in the house of parliament and in the context of an assembly of members of Parliament than the phrase „of Parliament,“ which suggests an action emanating from the will of parliament as distinguished from an action directed against its will. But by quoting incorrectly Mr. Moore instinctively came closer to the intention oft he Bill of Rights to protect the authority of parliament rather than promoting an infringement on the authority of Parliament by means of prorogation.

The views expressed by Mr. Moore find support in or probably even originate from an opinion given by Professor Emeritus of Law and Legal Philosophy in the University of Oxford John Finnis FBA GC (Hon) on „The unconstitutionality oft he Supreme Court’s prorogation judgment“, published without date by „policyexchange“ late in 2019 ( As recalled in Mr. Moore’s Article, Professor Finnis is „arguably the most distinguished academic lawyer of our time“. It would appear impertinent for a foreign lawyer to argue this opinion particularly without meeting the general academic requirements of expertise. It may however be allowed to mention that the result and the main arguments of Professor Finnis‘ face the same counter-arguments as the article by Mr. Moore. But the lawyer-author of this article feels justified in publishing his contribution on the grounds of the idea that a certain (limited) framework for constitutional law is set by the factual nature of any State if conceived as the only organisation able to grant peaceful coexistence world-wide.

As no law (in the narrower sense of reliably executed rules) exists outside the sovereignty of an existing State, no rule can be legally valid which is incompatible with the very existence of the State from which it derives. Part of this framework is the necessity for a State being able to exercise the power constituting and realizing its statehood by making, concluding and executing rules or decisions or agreements on this exercise of power effectively (vide the article "Staatsbegriff" - in German language). This ability lacking there is no State.

It follows that Mr. Moore is right in proclaiming that Parliament has ultimate authority but a duty to let the Government govern. The phrase quite vividly explains the principle of division of powers. And it follows that if and where the power of State is constituted in a way establishing separate organs of government and of legislation, contraditory actions or the lack of actions by both organs would render the State incapable of exercising its power thus rendering itself inexistent. Indispensable for the existence of States with divided powers are therefore rules defining the competences of Government and the legislative power. If sufficiently clear rules cannot be found in „convention“, other rules are required to resolve disputes of competence. Such rules may contain either criteria of general application resolving cases of dispute or they may regulate a procedure in which a decision on competence must be made.

These requirements were aptly met in the Miller-2-case by authority of the Supreme Court. It appears, however, that the authority of that Court is questioned by Mr. Moore expressing his resentment against constitutionalism if styled the American or European way subjecting acts of parliament to judicial control. The admissability of such control under the British Constitution seems to be questioned in the opinion delivered by Professor Finnis as well. Without the judgments of the Supreme Court the ability of England to act vis-a-vis the EU would have remained in question when it was disputed whether the Government could anounce withdrawal without consent by Parliament and when a question of competence arose concerning Parliament ordering the Government to take a particular international action.

It was widely believed, as also reflected in Mr. Moore’s article and even in the Judgment of the Supreme Court of September, 2019, that prorogation was part of the Government‘s policy to prevent Parliament from interfering with proceedings of withdrawal of England from the European Union. This interference had reached a peak when Parliament enacted on 9th September the European Union (Withdrawal) (No 2) Act 2019 ordering the Governement to ask for an extension of the duration of British membership in the European Union. Such a move was contrary to the intention of the Government of terminating this membership as soon as possible. The Prime Minster obeyed the Act by sending the letter, albeit as one deriving from Parliament, and accompanied it with a request oft his own for the Union not to agree to a prolongation. This raised the question whether the Act was consistent with what Mr. Moore referred to as the principle that Parliament should let Government govern, the answer depending on what government consists in. The issue was neglected by the European Union accepting and by England continuing to procede on the assumption that withdrawal had been validly suspended. The issue could not be used to justify the prorogration declared in August 2019, which was, irrespective of any political interests pursued, inconsistent with the British division of powers. But in the interest of the British capacity to execute its power of State it would have been preferable if not legally necessary to clarify this question of competence, for example by a decision of the Supreme Court. The Court would have been obliged to consider that where, as in England, the legislatrure as one oft he „divided“ powers consists in a Parliament, such a corporation composed of a larger number of persons is technically unable to negotiate and conclude agreements consisting of a larger number of interdependent clauses during the limited space of time available. This unability would have an effect stronger than a legal provision ruling out a competence of Parliament of exercising the British power of State. And as government must be allowed to govern, government must be entitled to challenge proceedings of parliament that prevent it from governing, and there must be an instance competent to decide finally and in a way binding government and parliament on a dispute of whether a specific action proposed to be taken by government may be taken even against the wish of parliament.

As a result, if there were, according to Mr. Moore, a necessity of clarifying the British Constitution, it would call for an enactment deciding on or providing for decisions on the scope of competences of Government, Parliament and the Judiciary in order to ensure the English capacity of exercising sovereignty.

Index to all pages by Dr. Christian Heinze