Is British Common Law fully codified

British Parliament recess in court: law and politics in an unwritten constitutional order

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Guest contribution by Roman Kaiser

19.09.2019

Brexit is not only keeping politicians but also lawyers on their toes. Now the Supreme Court is deciding on Boris Johnson's mandatory break in parliament. Karlsruhe standardization is alien to the judges, explains Roman Kaiser.

"I make my living from a subject that doesn't exist." This ironic remark by political scientist Vernon Bogdanor expresses the most famous quality of the British Constitution: it is unwritten. It is not codified in a single document, but is made up of a series of simple parliamentary laws, rules of case law and constitutional conventions based on political tradition and practice.

The most important principle of the British Constitution is parliamentary sovereignty: Parliament can pass laws of any content, which are the highest law of the country. As has now been shown, however, this "sovereignty" depends on one decisive condition: Parliament has to meet at all.

In contrast to the Bundestag, for example, the British Parliament is postponed not only on the occasion of elections, but also in between - usually annually - and reopened after a short break. While the opening of parliament, the Queen's Speech, is well known thanks to its courtly ceremonies, the adjournment, the prorogation, has not yet been in the public eye. That has changed since Prime Minister Boris Johnson put MPs on a forced break for five weeks just before October 31, the current Brexit date.

The relationship between the three powers

The suspension of Parliament is incumbent on the Queen as part of her royal prerogative. These are the executive powers that the crown traditionally has without legal authorization. Nowadays they are almost entirely exercised only formally in the name of the Queen, but in substance by ministers, in the case of postponement by the prime minister.

The current constitutional conflict thus arises from the contrast between Parliamentary sovereignty and Royal prerogative - a contrast that has historically been the driving force behind the development of the British constitution. Almost the entire constitutional history of Great Britain could be written on the basis of how Parliament wrested powers from the executive.

The courts have always only played a subordinate role. Constitutional conflicts are traditionally resolved in the political process. Great Britain has a political constitution, a constitution that does not provide a fixed legal and judicially verifiable framework, but lives to a large extent from conventions that are politically enforceable, but also politically changeable. In principle, judges are not entitled to intervene at this point. Their reluctance to answer political questions is immense.

Against this background, the importance of the current proceedings before Great Britain's highest court must be assessed. The decision has the potential to change not only the relationship between the legislature and the executive, but also the relationship between the judiciary and the other two powers, at least to some extent. At the same time, however, the scope of the questions to be decided is limited: it is all about a very specific executive competence; and not a general power of the courts to review political decisions.

How justiciable is the prerogative?

The judges of the Supreme Court will have to answer three main questions after the hearing, which will take place Tuesday through Thursday: Is the decision on the adjournment of Parliament justiciable? If so, what are the legal limits? And have these limits been violated in the specific case?

The first question already concerns the relationship between politics and law. Can the Prime Minister's decision on when and for how long Parliament be suspended be reviewed by the courts? The two lower courts, whose judgments are under attack before the Supreme Court, found different answers. The English High Court emphasized the political nature of the decision to adjourn Parliament and denied the possibility of justice, the Scottish Court of Session affirmed it.

There are some indications that the Supreme Court will confirm justiciability. Because in and of itself it is all about whether the exercise of a certain executive authority can be judicially reviewed at all. In principle, this has long been accepted. In particular, the government cannot use the prerogative to thwart the will of parliament expressed in laws - on this, for example, the Brexit judgment of the Supreme Court of January 2017 is based.

The political exercise of the prerogative is therefore subject to at least certain legal limits. Why should this be any different with regard to the partial aspect of adjournment? It can be assumed that in any case the majority of judges will not allow themselves to be deprived of the opportunity to intervene in cases of abusive practice.

Incidentally, it does not depend on the differences between English and Scottish law. The United Kingdom has three legal systems: England and Wales, Scotland and Northern Ireland. There are serious differences in civil law. In constitutional law, the differences that date back to the time before the unification in 1707 essentially only concern the attitudes of judges when reviewing political decisions. So it is not surprising that the Scottish court has ruled in favor of the plaintiffs. However, there is no legal difference.

Illegal purpose?

But where are the limits of suspension? This second question depends primarily on what purposes the government can pursue. The Supreme Court will certainly not come up with a catalog of permissible purposes or an abstract definition - British judges are not familiar with Karlsruhe's "yardstick". Rather, the central issue is whether the postponement can legitimately be used to prevent the work of Parliament. The plaintiffs and the Court of Session argue that this is not permissible in a parliamentary democracy.

The government countered this by stating that parliament could have acted to defend itself against the impending adjournment. It remains to be seen whether this will convince the judges. Some of them have also indicated in their inquiries that it may not be the motive that matters, but rather the effect of the suspension.

A unique event in British legal history

If the lawsuits clear the first two hurdles, the real crux of the case is the third question: Has the Johnson administration acted improperly in this particular case? Before the Scottish Court of Session, the government almost necessarily had to lose on this level of facts, as it missed a so-called witness statement.

Such a testimony is usually used to explain how an administrative decision was reached. That the government was unable to do so does not reflect their decision well. Above all, however, it also means that the Scottish court was able to infer the real purpose pursued from external circumstances. To put it a bit pointedly: The Court of Session found that Boris Johnson lied to the Queen. A unique event in British legal history.

How the Supreme Court justices judge the facts of the case will arguably be one of the most intriguing questions of their verdict. It is not impossible for them to agree to the Court of Session on legal issues, but ultimately to decide in favor of the government like the High Court.

If the government wins, all eyes will again be on the EU summit in mid-October: According to a law recently passed by parliament, Boris Johnson has to ask for an extension of the exit period. If, on the other hand, the government loses, the prime minister must first ask himself another question: can he still remain in office? Anything is possible in British politics right now. In court too, however.

The author Roman Kaiser is a research assistant at the chair for public law, medical law and legal philosophy (Prof. Dr. Josef Franz Lindner) in Augsburg and legal trainee in Munich. Since his Erasmus stay in Oxford he has dealt with constitutional law in Great Britain.