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24/09/2019

Supreme Court rules Prorogation of Parliament unlawful

Subject: Law/Brexit

Source: Supreme Court

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

On 28 August, the Privy Council with the Queen’s consent made an Order in Council to prorogue Parliament from the week beginning 9 September until the State Opening of Parliament on 14 October. Many MPs and others viewed such a long prorogation as unprecedented. Upon Parliament's return from the summer recess on 3 September, a Bill was introduced in the Commons with the aim of forcing the Government to seek a further extension of the Exit Date from the European Council. The Bill after amendment in its passage through Parliament was enacted on 9 September as the European Union (Withdrawal) (No. 2) Act 2019. This Act requires the Prime Minister to write to the European Council by 19 October in order to request an extension of the Exit Date to 11.00pm on 31 January 2020, unless Parliament approves before the Withdrawal Agreement or a withdrawal from the EU without an agreement.

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).[2019] UKSC 41

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 first question was whether the lawfulness of the Prime Minister’s advice to Her Majesty [to prorogue Parliament] was justiciable. The court held that it was. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”.

(ii) the second question was what are the limits to that power [to advice the Queen to prorogue Parliament]? Two fundamental principles of the British Constitution were relevant to deciding that question. The first was Parliamentary sovereignty - that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second fundamental principle was Parliamentary
accountability. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict. The relevant 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. If the prorogation did have that effect, without reasonable justification, there wasno need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.

(iii) The third question was whether the prorogation did have the effect of frustrating or
preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. The prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change came about. The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect had been put before the court.

The only evidence of why it was taken is the memorandum from Nikki da Costa of 15 August. It explained why holding the Queen’s Speech to open a new session of Parliament on 14 October would be desirable. It did not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. It did not discuss the difference between prorogation and recess. It did not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It did not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.


The Court was bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.


(iv) The final question, therefore, was what the legal effect of that finding was and therefore what remedies the Court should grant. The court had already concluded 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.

[Original text of the case report supplied by the Supreme Court gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]


Comment

The Withdrawal Act specifically provided that “Exit Day” (i.e. the date of Brexit) meant 29 March 2019 at 11.00 pm. The Act seems to have envisaged that the Withdrawal Agreement would be negotiated in time to come into effect on Exit Day but it did not state that specifically.

It is arguable that, in formulating grounds (ii) and (iii) above, the Supreme Court has created entirely new constitutional law principles. While the judgment in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent); Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) was momentous and unprecedented in British modern constitutional history, it has no effect, at least directly, on the legal date for Brexit. The Supreme Court emphasised that the two cases were not about when and on what terms the United Kingdom is to leave the European Union

In our opinion, much of the political and legal turmoil and delay over Brexit stems from the failure of the Government and indeed Parliament to envisage and think through the consequences and plan for the possibility that a satisfactory withdrawal agreement might not be negotiated within the two year timetable provided by Article 50 of the EU Treaty. This failure began with the framing of the Referendum question in 2016 which offered voters the binary choice:

* “Remain a member of the European Union”;

* “Leave the European Union”.

The framers of the Referendum failed to include any question around the possibility that a withdrawal agreement acceptable to Parliament might not be concluded within the two year deadline.

For commentary on this topic, see e.g. “The tale of the Brexit referendum question” David Allen Green 3 August 2017 ft.com. See also: Referendums.

[Page updated: 25/09/2019]

 


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