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Supreme Court rules Prorogation of Parliament unlawful

Subject: Law/Brexit

Source: Supreme Court

In R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] EWHC 2381 (QB)11/09/2019, Gina Miller applied to the English High Court for a judicial review on the questions:

(i) whether the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is justiciable in the courts; and

(ii) if the decision is justiciable and the appeal is not academic, whether that advice was lawful.

The court ruled that to prorogue Parliament is not justiciable in Her Majesty's courts.

A similar result was reached in the action for judicial review made by Raymond McCord in the High Court of Northern Ireland in Belfast which alleged breaches of the Good Friday Agreement. The court held that was non-justiciable under Northern Irish law.

However, in the Scottish case Joanna Cherry QC MP and others v The Advocate General11/09/2019 the Court of Session found that the real purpose of the prorogation order was to restrict the time available for Parliamentary scrutiny of Government action and, in particular, the ongoing Brexit procedure. The prorogation was therefore unlawful and of no effect.

Appeals in both the Miller and Cherry cases were heard in the Supreme Court as

R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)
Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland).

Because of the importance of the case, a panel of 11 Justices was convened, the maximum number of serving Justices who are permitted to sit. In the unanimous judgment of all 11 Justices. The cases were heard from 17 to 19h September 2019. The court held that:

(i) the lawfulness of the Prime Minister’s advice to Her Majesty [to prorogue Parliament] was justiciable.

(ii) the limit on the power to prorogue was: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.

(iii) The prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

(iv) The court had that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This meant that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This meant that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.

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