My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.
I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.
It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government,
who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.
That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.
That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.
But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.