Authored By: Zanib Sheraz
University of London
Case Name and Citation
R [ on the application of Miller] v The Prime Minister Cherry and others V Advocate General for
Scotland [2019] UKSC 41
Court and Judges
UK SUPREME COURT
Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lord Black, Lord
LIoyd-Jones, Lady Arden, Lord Kitchin, Lord Sales
Parties
Appellant: Gina Miller, Advocate General for Scotland
Respondent: Prime Minister, Joanna Cherry MP and others
Material facts
In R (on the application of Miller) v. The Prime Minister and Cherry and others v Advocate General for Scotland [2019] the UK Supreme Court was asked to decide whether Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament for five weeks was legal. The Prime Minister advised the Queen to prorogue Parliament from early September to mid-October just before the UK was expected to leave the European Union on October 31, 2019. The case began like this. Given the great political unrest around Brexit, this advice was seen as an attempt to limit parliamentary examination of the government’s Brexit proposal.
As soon as the prorogation was announced Gina Miller launched proceedings in the High Court of England and Wales, seeking a declaration that the Prime Minister’s advice to Her Majesty was unlawful. At the same time, another case was filed in Scotland by Cherry and others that the advice to prorogue parliament was unlawful as it reduced the time that was needed by parliament to debate and discuss Brexit. The appeal in the case of Cherry and others V Advocate General for Scotland was allowed to declare that the advice given by the Prime Minister to the Queen was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of Government, but the appeal in the case of Miller v the Prime Minister was dismissed on the basis that the issue was not justiciable.
However, the High Court granted leap- frog certificate so that the case could be directly heard in the Supreme Court. UKSC heard the appeals in these two cases jointly from
17th to 19th September.
Question of law/ Issues
Both the cases raise the same four issues which are:
A] Whether the question that the advice given by the Prime Minister to the Queen was lawful justiciable in a court of law?
B] If it is, by what standards is its lawfulness to be judged?
C] By what standard, was it lawful?
D] If it was not, what remedy should the court grant?
Argument of the Parties
The argument presented by Gina Miller and the Advocate General of Scotland was that the prorogation in question was unlawful. It was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive. Parliament is the Supreme sovereign law -making in the United Kingdom, and proroguing Parliament in such an important event, which will have a long- lasting impact on the Constitution of the United Kingdom, cannot be justified. On the other hand, the Prime Minister and Joanna Cherry argued that the issue in question does not raise any legal question on which the courts can properly adjudicate and were of the opinion that courts should not enter the political arena but should respect the separation of powers.
Further, they argued that the Prime Minister is only accountable to Parliament and not the courts.
Decision
The court held that the issue was justiciable i.e. the courts can give judicial review on this. Secondly, the court held that executive power to prorogue parliament is not unlimited, it requires justification. As a result, the court declared that advice given by Prime minister Boris Johnson to the Queen to prorogue parliament for five weeks was null and void as it prevented parliament from performing its function and there was no sufficient justification given for such long prorogation. Thus, the appeal of Gina Miller was allowed and the appeal of advocate general for the Scotland was dismissed.
Detailed Reasons for decision
The first issue in this case was whether the issue was justiciable. The court declared that the issue was justiciable, i.e., that courts could grant judicial review of it. The court held that although prorogation is a prerogative power exercised by the Monarch on the advice of PM, it is not free from legal scrutiny. The courts distinguished between political issues, which are not for the courts to decide, and constitutional issues that can be subjected to judicial review. In this case, the prorogation was preventing the parliament from performing its constitutional role so it was a legal issue and not a political one. The courts also make this point clear that the mere fact that a constitutional issue involves politics will not prevent courts from giving judgment. They also cited the Case of Proclamations and Entick v Carrington to support this stance. The facts and the principle established in this case show that most of the constitutional cases in the past have been concerned with politics and the fact that legal dispute concerns the conduct of politicians, or arise from a matter of political controversy, has never been a sufficient reason for the courts to refuse to consider them. Thus, the issue was justiciable.
Further, the court also clarified that the fact that minister is politically accountable to Parliament does not mean that he will be immune from legal accountability to courts. The courts supported this stance by referencing Lord Lloyd’s statement in the case of Fire Brigade union case, where he cited Lord Diplock ‘s judgment in R V Inland Revenue Comrs. The judgment is as: “It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”Once the court decided that the matter was justiciable, the next issue was to examine whether the advice to prorogue Parliament was lawful. The argument concentrated on the constitutional principle that Parliament has to be let to operate, especially in important times like the period before the Brexit date.
Particularly with relation to the UK’s exit from the European Union, the Court observed that the advice to prorogue Parliament for five weeks-unprecedented in modern times had a major influence on Parliament’s capacity to scrutinize the government’s actions and to legislate. In respect to its declared goal-that of getting ready for a Queen’s Speech-the prorogation was found to be extreme and disproportionate.
The Court underlined that a basic feature of democracy is Parliament’s capacity to make the government answerable. In this instance, the prorogation was determined to frustrate and subvert this constitutional ideal.
The Court also turned down the Prime Minister’s contention that prorogation was within his discretion and a regular constitutional habit. It came to the conclusion that such advice was an abuse of power since, in this situation, especially considering the proximity of the Brexit deadline, it had no logical basis. The prorogation was hence declared to be illegal, void, and useless.
The Court’s decisions were based on the necessity to defend Parliament’s sovereignty and capacity to execute its constitutional obligations. The Prime Minister had essentially deprived Parliament of its capacity to examine and make decisions on important issues, especially the government’s approach to Brexit, by proroguing Parliament at a crucial juncture.
The Court underlined that in a democracy any executive action meant to limit Parliament’s capacity to operate at such a crucial point is illegal and unacceptable.
The Court said the advice was “unlawful, void, and of no effect.” Parliament was thus decided never to have been prorogued and to be summoned straight away. This strengthened the Court’s will to respect parliamentary sovereignty and guarantee that the executive could not illegally stop or limit parliamentary operations.
Ratio Decidendi
This case sets a very important principle that although the Monarch has the prerogative power to prorogue the parliament on the advice of prime minister, this power is not unlimited. If the use of this power or advice has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional function as a legislature and the body responsible for the supervision of the executive, the courts have the right to give judicial review and such a use of power or advice will be declared unlawful and void.
