Miller v Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41

1. Case Title and Citation

R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41.[1]

2. Court and Bench

This case was heard by the United Kingdom Supreme Court, which delivered its judgment on 24 September 2019.[2] The judgment was issued unanimously by all eleven Justices of the Court, making it one of the most significant constitutional rulings in modern British legal history. The leading judgment was delivered jointly by Lady Hale (President of the Supreme Court) and Lord Reed (Deputy President), with all other Justices concurring.

On September 24, 2019, the case was heard by the UK Supreme Court.  

With a unanimous vote from all eleven Justices, this was one of the most significant constitutional decisions in contemporary British history.  A historic decision was reached when Supreme Court President Lady Hale and Deputy President Lord Reed jointly issued the main ruling, with full support from all other Justices. The case’s constitutional significance was highlighted by the fact that an entire bench of eleven Justices heard it. Given the constitutional crisis the UK faced during Brexit, a bench of this size is highly unusual and is typically reserved for cases of the highest national significance.[3]

This illustrated how the Court viewed the matter as having significant implications for the balance of powers in the UK constitution, rather than merely being a legal dispute. The public and Parliament were also informed that the decision would have full institutional authority with the deployment of the full bench.

3. Date of Judgment

24 September 2019.[4]

4. Parties Involved

• Appellant/Claimants:  The appellant/claimants are a cross-party group of MPs and peers, Joanna Cherry QC MP, and Gina Miller, an activist and businesswoman.  They questioned whether the Prime Minister’s proposal to the Queen to prorogue Parliament was sound.
• Respondent/Defendant: British Prime Minister Boris Johnson, as well as the UK government’s representative in the Scottish proceedings, the Advocate General for Scotland.

5. Facts of the Case

Before the UK’s planned exit from the European Union (Brexit) on 31 October 2019, the Prime Minister asked Her Majesty the Queen in August 2019 to prorogue Parliament for five weeks. The prorogation would severely restrict parliamentary oversight. There was significant opposition to a no-deal Brexit at the time, and the government lacked a stable parliamentary majority. Legislation to stop the UK from exiting the EU without a deal is something that many MPs want to pass.[5]

There were concerns that the suspension of Parliament was intended to circumvent attempts at legislation and discussion during a politically sensitive period by suspending Parliament from early September to mid-October.

Practically, this meant that Parliament would be suspended during one of the most delicate times in recent history, significantly restricting MPs’ capacity to debate, investigate, or enact legislation related to Brexit.

According to the Prime Minister, prorogation is a typical political tactic used to get ready for the Queen’s Speech, which will outline a new legislative agenda. Opponents countered that the real goal was to prevent parliamentary scrutiny of the government’s Brexit plan, specifically the threat of a “no-deal Brexit.”[6]

Two separate legal issues were raised:

1. Gina Millersued in England, claiming the prorogation had undermined the accountability and sovereignty of parliament. The High Court’s Divisional Court denied her petition because, in its view, prorogation is a matter of high politics and therefore not a matter of law and should not be subject to judicial review.[7]
2. Joanna Cherry QC MPand others brought their petition to the Court of Session in Scotland. Because it obstructed parliamentary scrutiny, the Inner House, Scotland’s highest civil court, ruled that prorogation was unconstitutional and justiciable.

The UK Supreme Court heard appeals of both cases concurrently.[8]

6. Issues Raised

The Supreme Court’s real concerns were:

1. Justiciability: Was the Prime Minister’s suggestion to the Queen to adjourn Parliament open to judicial review, or was it only political and therefore exempt from judicial scrutiny?  
2. Legality of Prorogation: Did the advice given to the Queen violate the constitutional standards of parliamentary autonomy and accountability, or was it valid if the matter was justiciable?  
3. Remedy: What would happen if the finding were unlawful? Was the prorogation merely politically incorrect, or was it void and ineffective?

7. Arguments of the Parties

Claimants (Miller and Cherry)

• The claimants argued that the prorogation of Parliament violated the fundamental tenet of parliamentary sovereignty in the UK constitution for five weeks at such a crucial moment. 
• Parliament was prevented from legislating, questioning ministers, or scrutinising Brexit preparations.
• Parliament had very little power to enact laws and hold the government accountable. They argued that rather than being a matter of political discretion, the Prime Minister’s recommendation was subject to judicial review. Prorogation may be a political act, but its use is still subject to legal limitations.
• Even though prorogation was a prerogative power, there were legal restrictions on its application and purposes, particularly when fundamental constitutional principles were at stake.
• There, they cited constitutional cases – Attorney General v. De Keyser’s Royal Hotel (1920)[9], which held that those prerogative powers had legal limits, and case law – Case of Proclamations (1611),[10] which ruled that the monarch could not change the law without Parliament’s approval.
• They claimed that prorogation was both unlawful and unconstitutional in order to avoid a parliamentary inquiry.

Respondents (Prime Minister and Government)

• According to the government, prorogation is a highly politicised issue that cannot be reviewed by the courts. The courts did not examine the political factors that underpinned the Crown’s use of its prerogative authority, which was based on the advice of ministers.
• The government argued that there were no legal standards to determine whether prorogation was constitutional. It would be improper to involve the judiciary in political disputes. 
• The government maintained that prorogation was lawful and that the prime minister had the political authority to control the schedule of Parliament, even if it were subject to review.[11]
• It argued that there were no legal standards by which to evaluate the validity of prorogation. Involving the judiciary in political disputes through court intervention would compromise the principle of separation of powers.[12]

8. Judgment / Final Decision

In a unanimous decision, the Supreme Court declared:

1. The Queen might contest the Prime Minister’s proposal to adjourn Parliament.  Courts assess whether constitutional abuses of royal prerogative authority have occurred.  
2. Without sufficient justification, the prorogation hindered or stopped Parliament from fulfilling its constitutional duties, which made it unlawful.[13]  
3. As a result, the prorogation was therefore void.   Parliament had not been legally prorogued and was still in session.   Parliament was immediately called back to order by the Speaker of the House of Commons and the Lord Speaker of the House of Lords.

 This was an unexpected constitutional outcome: even though the queen had approved the prorogation at the Prime Minister’s recommendation, it was declared null and void. This result was significant because a royal order issued on the advice of ministers was ruled null and invalid by the judiciary.[14]

9. Legal Reasoning / Ratio Decidendi

The Court’s reasoning centred on the following principles:

1. Limits of Prerogative Power
   • Prorogation is a prerogative power, but it is still within the courts’ purview. Courts have traditionally assessed prerogative power as limited by the law when exercising it, as evidenced in decisions such as De Keyser’s Royal Hotel and the Case of Proclamations.[15]
2. Constitutional Values at Risk.
   • The Court emphasised two essential constitutional principles:
   • Parliamentary sovereignty: designates Parliament as the supreme legislative body. The legislative authority of Parliament cannot be obstructed or interfered with by the executive.
   • Parliamentary accountability: Prorogation undermined the government’s obligation to Parliament by suspending Parliament at a crucial moment.[16]
3. Test for Lawfulness
   • The Court created a test: if a prorogue decision hinders Parliament from fulfilling its constitutional duties without sufficient justification, it is unlawful.
   • Without providing a plausible explanation, the Court used this criterion to conclude that the five-week prorogation had such an effect.[17]
4. Remedy

• The prorogation was void and ineffective due to its illegality. This indicated that there had never been a prorogue of Parliament. The Court emphasised that it was enforcing legal limitations on prerogative authority rather than meddling in political matters.[18]

10. Conclusion / Observations

In conclusion, the Miller No. 2 ruling is a milestone of UK constitutional jurisprudence. It accomplished this by restating the precedent that the executive branch is answerable to the law and that judicial review applies to prerogative powers when such powers violate fundamental constitutional principles[19]. The case demonstrated how the court protects against abuses by the executive branch, as outlined in the Constitution. By declaring prorogation illegal, the Court upheld legislative authority and accountability. (Though the Court was analytical and, importantly, based its rulings within the framework of its constitution, many challengers considered the ruling as judicial overreach concerning government affairs.) The unanimous approval increased its validity[20]. This case will help improve the constitution of the United Kingdom. It also established the boundaries of prerogative powers and confirmed that courts will intervene to ensure that political conduct does not undermine fundamental constitutional tenets. The relationship between the government, Parliament, and the judiciary will be defined in the long run by Miller No. 2. It drew a clear line: Parliament cannot be silenced or examination avoided by using prerogative powers. As a result, the ruling upheld the UK’s unwritten constitution in addition to solving a problem during Brexit.

Bibliography

Cases

• Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL).
• Case of Proclamations (1611) 12 Co Rep 74.
• Cherry v Advocate General for Scotland [2019] CSIH 49, 2020 SC 151.
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583.
• R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41.

Books

• Vernon Bogdanor, Beyond Brexit: Towards a British Constitution (IB Tauris 2019).

Websites and Blogs

• Alison L Young, Parliamentary Sovereignty and the Prerogative (Cambridge Constitutional Law Blog, 24 September 2019) https://ukconstitutionallaw.org/.
• Mark Elliott, ‘Prorogation: Three Strands of the Supreme Court’s Reasoning in Miller (No 2)’ (Public Law for Everyone, 24 September 2019) https://publiclawforeveryone.com/.
• BBC News, ‘Supreme Court: Suspending Parliament was Unlawful, Judges Rule’ (24 September 2019) https://www.bbc.com/news/uk-politics-49810261.

Parliamentary & Government Reports

• House of Commons Library, ‘Prorogation of Parliament’ (Briefing Paper, 2019).

[1] [2019] UKSC 41.

[2] ibid [1] (Lady Hale and Lord Reed).

[3] Vernon Bogdanor, Beyond Brexit: Towards a British Constitution (IB Tauris 2019) 112.

[4] House of Commons Library, ‘Prorogation of Parliament’ (Briefing Paper, 2019).

[5] [1920] AC 508 (HL).

[6] Case of Proclamations (1611) 12 Co Rep 74.

[7] [2017] UKSC 5, [2017] 2 WLR 583 (Miller No 1).

[8] CSIH 49, 2020 SC 151 (Inner House).

[9] [2019] UKSC 41 [52].

[10] ibid [61].

[11] ibid [69].

[12] ibid [82]

[13] Alison L Young, Parliamentary Sovereignty and the Prerogative (Cambridge Constitutional Law Blog, 24 September 2019).

[14] Mark Elliott, ‘Prorogation: Three Strands of the Supreme Court’s Reasoning in Miller (No 2)’ (Public Law for Everyone, 24 September 2019).

[15] BBC News, ‘Supreme Court: Suspending Parliament was Unlawful, Judges Rule’ (24 September 2019).

[16] [2019] UKSC 41 [49].

[17] ibid [50].

[18] ibid [69].

[19] Alison L Young, Parliamentary Sovereignty and the Prerogative (UK Constitutional Law Blog, 24 September 2019) https://ukconstitutionallaw.org/.

[20]  Mark Elliott, ‘Prorogation: Three Strands of the Supreme Court’s Reasoning in Miller (No 2)’ (Public Law for Everyone, 24 September 2019) https://publiclawforeveryone.com/.