Lights! Camera! (Spider Brooch) Action!

by Professor Alison Young


Professor Alison Young is Fellow of Robinson College and Sir David Williams Professor of Public Law




Constitutional lawyers were rather busy in 2019. We witnessed a series of governmental defeats on key policy issues, including the largest ever defeat in modern history when the Commons first voted against Theresa May’s Withdrawal Agreement with the European Union. The Speaker allowed interpretations of Standing Orders, the internal rule regulating debate in the Commons, to enable two Private Members’ Bills to be hastily pushed through Parliament. Both the Cooper-Letwin Bill (which became the European Union (Withdrawal) Act 2019) and the Benn-Burt Bill (which became the European Union (Withdrawal) (No 2) Act 2019) required the Prime Minister to seek an extension to the Article 50 Brexit negotiation period. We also witnessed the first use of the ‘vote of no confidence’ process under the Fixed Term Parliaments Act 2011, as well as three unsuccessful attempts to obtain the two-thirds majority of all of the members of the Commons to call an early parliamentary general election. Finally, the Early Parliamentary General Elections Act 2019, passed in a matter of days, partially amended the 2011 Act enabling the early parliamentary general election on 12 December 2019.

These events alone would make 2019 a vintage year for the UK constitution. But they pale into insignificance when contrasted with the Prime Minister’s decision to advise the monarch to prorogue Parliament, bringing one parliamentary session to an end and triggering a new Queen’s Speech. There is nothing odd in this in and of itself. But when the prorogation is for five weeks, falling in the eight weeks in the run up to what was, at the time, the date of the UK’s exit from the EU, accusations of unconstitutionalism became almost inevitable. The prorogation motivated two legal challenges. One was brought in the Scottish courts led by Joanna Cherry, a Westminster MP. The second was brought by Gina Miller in the English courts. Both argued that the Prime Minister’s advice was unlawful, motivated by an improper purpose. Was the Prime Minister proroguing Parliament to enable a new Queen’s Speech, or was he motivated by a desire to prevent the House of Commons from acting to further delay Brexit, as had been suggested by the Prime Minister in some media interviews? Both appeals initially failed at first instance, with the English high court and the Outer House of the Court of Session concluding that prorogation was too political for the courts to examine. However, Joanna Cherry’s appeal to the Inner House of the Court of Session succeeded. Not only could the courts review the legality of advice given to the monarch to prorogue Parliament, but also that advice was unlawful. Cue an appeal to the Supreme Court – which convened in its largest form of 11 members for only the second time in its history.

Constitutional law experts were now in high demand. As the cases progressed through the English and Scottish courts, my mobile phone was suddenly very active as BBC producers tracked me down on the database, scrolled down their contacts list, and asked me to try and explain what was going on. All of this was taking place as I was moving house – leading to interesting conversations with Guardian journalists whilst packing boxes and one particularly fraught conversation with a BBC producer to explain that no, I could not appear on the radio in an hour as my husband was currently driving me and my family around the M25 as we were moving house that day from Oxford to Ely, and yes, that was indeed a distressed cat they could hear protesting loudly in the background. My family did discover, though, even when deep in the process of unpacking boxes, that everything stops for a phone call from Clive Coleman.

As the Supreme Court hearing drew near, I was writing a blog post on potential arguments that could be used in the Supreme Court, as well as editing other posts on the judgment for the blog for the UK Constitutional Law Association which I co-edit. Whilst we normally receive two or three posts a week, in the run up to what became known as Miller 2/Cherry, we were posting up to five blogs a day. The weekend before the hearing, I was booked by the BBC to resume my role as live commentator on yet another ‘constitutional case of the century’. This time I was only able to cover two days, though that did not stop Sky News from roping me in to their evening news programme after I’d spent the day discussing French administrative law.

As with the first Miller case in the Supreme Court, the media was out in full force. TV cameras, cables, microphones, monitors and stressed producers filled the designated media area outside the entrance to the Supreme Court. For me, that meant reading skeleton arguments late into the night, getting on an early morning train from Ely to read and edit blog posts and draft an outline of the arguments for producers and presenters, whilst trying not to catch the eye of Lord Lloyd-Jones when he joined the same train at a later stop (I can confirm that at least one Justice of the Supreme Court does not travel in first class and takes the underground). Commentating on a Supreme Court case is more about waiting around than it is about being in front of the camera. Thankfully, there were live feeds and a designated space for me and the others commentating on the case to watch and take notes, so that we could explain what was going on. I also spent a lot of time huddled in the BBC radio car, watching the arguments and sharing notes with Clive Coleman and Dominic Casciani so we were all keeping on top of what was going on.

For the two minutes that you are on screen, there’s a lot watching, reading, note-taking and discussion. At the end of each day, I’d chat with the others commentating on the case, swapping notes and ideas – we did not always agree! As one of the few academics who had done this before, it was nice to be able to pass on knowledge and advice – including to Joelle Grogan, a former student of mine from Oxford now joining me in front of the cameras. It was also lovely to watch members of my former Oxford college in action – including Lord Pannick and Michael Fordham QC – as well as seeing some of my former students sitting in the Supreme Court. It was also a privilege to share the limelight with a true Robinson law legend, as Professor Christopher Forsyth and I joined forces to analyse the legal arguments presented on the second day of the hearing. One day it will be my former Robinson students that I’ll be able to watch with pride.

This time, we did not have to wait long for the judgment. Nobody was quite sure which way the court would go. Even the barristers representing the parties in the case, unusually, had not received earlier notification of the outcome. What was clear, however, was that the Justices of the Supreme Court had been asking interesting questions, wanting to know about the effect of the prorogation and not just its purpose. The tension was palpable. The rain poured down outside the court. Commentators huddled under umbrellas or packed into the radio car like sardines, glued to the television monitors, pencils poised. Lady Hale – wearing her now infamous spider brooch – calmly walked into the court and took her seat.

Even though some of us had suspected that the court might conclude that the prorogation was unlawful, nobody was quite prepared for a unanimous verdict. Lady Hale, commanding and serene, explained that the prorogation was null and void. Any prorogation of Parliament must comply with the common law constitutional principles of parliamentary sovereignty and parliamentary accountability. To prorogue Parliament for so long, at a crucial period in the run up to Brexit, without any, let alone a reasonable justification, contravened the UK constitution. As far as the law was concerned, the prorogation order was nothing more than a blank piece of paper. Parliament had not been prorogued. MPs could return to the Commons. Bills that had lapsed were back on the parliamentary agenda.

Whilst Lady Hale and the other ten Justices of the Supreme Court were now calm, their work on the case complete, the same was not true for constitutional scholars. The judgment needed to be explained and analysed. Did we agree with the Supreme Court? Was the Court going too far and interfering in politics, or was it performing its rightful task of defending the constitution, upholding the democratic role of Parliament when impeded by actions of the Government? On the day, that meant television appearances outside the Supreme Court (dodging torrential rain), as well as visits to two different BBC news studios – whilst finding time to chat to my two former students working as Judicial Assistants in the Supreme Court over tea in the Supreme Court café.

Since the case, I’ve appeared on the ‘Briefing Room’, ‘Law in Action’ and numerous slots on BBC FiveLive and local radio stations, all reflecting on the case. I also spent one Saturday evening in the cramped surroundings of the DTL BBC Radio Cambridge studio – complete with antique brass microphone – listening to Lady Hale read out her judgment and offering commentary for the Stephen Nolan programme on FiveLive. I will be teaching Miller 2/Cherry until I retire and writing about its consequences for even longer. Nor does it look as if the constitutional excitement, and the accompanying media requests, will die down any time soon. With planned constitutional reforms - the establishment of a Commission on the Constitution, Democracy and Rights, the European Union (Withdrawal Agreement) Bill (which will be an Act by the time you read this), the proposed repeal of the Fixed Term Parliaments Act 2011 and further calls for a second Scottish Independence Referendum - 2020 is not going to be quiet. I’ll either need to change my mobile phone number, or plan for yet more days outside the Supreme Court. Now, where can I buy a spider brooch…

This article is reproduced from the Easter 2020 issue of Bin Brook, the Robinson College Alumni Magazine