Authored By: Ahmed Ismail
University Of London
- Case Citation and Basic Information
Full case name: R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland.
Citation: [2019] UKSC 41.
Court: The Supreme Court of the United Kingdom.
Date of decision: 24 September 2019.
Bench composition: President Lady Hale, Deputy President Lord Reed, Lady Black, Lady Arden, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lord Lloyd-Jones, Lord Kitchin and Lord Sales (eleven-Judge panel).
- Introduction
This case is related to the scope of the Crown’s prerogative power to prorogue the UK Parliament and the extent to which its exercise is justiciable in English courts. The Supreme Court, ruled on the United Kingdom’s withdrawal from the European Union, when the Prime Minister advised the Queen to prorogue Parliament for an unusual five-week long period in the weeks preceding the scheduled date of exit (from the EU). The case is significant because it resolved a direct conflict between the English Divisional Courts, which had held that the matter was non-justiciable, and the Scottish Inner House of the Court of Session, which had held that the prorogation was unlawful. In doing so, the Supreme Court set out new constitutional limits on the exercise of prerogative power, following the principles of Parliamentary sovereignty and Parliamentary accountability, making the judgment a landmark authority on judicial review of executive action in the constitutional law.
- Facts of the Case
The Prime Minister, Boris Johnson, advised the Queen to prorogue Parliament from the 9th or 12th until the 14th of October 2019, for about five weeks. This action was highly suspicious as normal prorogation usually lasts only a few days. The UK was set to leave the European Union on 31 October 2019, and Parliament typically addressed Brexit-related matters during those days. Suspending Parliament during such an important period prevented it from carrying out its constitutional functions.
Mrs Gina Miller, a businesswoman, challenged the lawfulness of the Prime Minister’s advice in the High Court of England and Wales. The appellant claimed that the purpose behind proroguing Parliament was to prevent it from scrutinising the United Kingdom’s withdrawal from the European Union. The High Court ruled that the matter was non-justiciable, meaning something the courts cannot review. However, this case was appealed to the United Kingdom Supreme Court, where the court held that the matter was justiciable and that the advice given by the Prime Minister to the Queen to prorogue Parliament was unlawful.
- Legal Issues
Issue 1: Whether the lawfulness of the Prime Minister’s advice to the Queen to prorogue Parliament was justiciable in a court of law.
Issue 2: If justiciable, by what standard the lawfulness of that advice was to be judged.
Issue 3: Applying that standard, whether the advice given was lawful.
Issue 4: If the advice was found to be unlawful, what remedy the court should grant.
- Arguments Presented
5.1 Appellant’s Arguments (Gina Miller / Cherry and others)
The appellants argued that advising a five-week prorogation at the height of the Brexit process was an unconstitutional attempt to avoid Parliamentary scrutiny of the Government’s withdrawal strategy in the critical weeks before exit day. They argued that the prerogative power to prorogue is not unlimited and must be exercised consistently while observing fundamental constitutional principles, in particular Parliamentary sovereignty and the accountability of the executive to Parliament. The appellants further argued that the unusual length and timing of the prorogation, together with the absence of any adequate justification from the Government, indicated that its true purpose was to prevent Parliamentary scrutiny rather than to prepare a new legislative programme. Relying on the reasoning in Council of Civil Service Unions v Minister for the Civil Service, they submitted that justiciability depends on the nature and effect of the power exercised, not merely on its prerogative source, and that a power capable of frustrating the constitutional role of Parliament must be reviewable by the courts.
5.2 Respondent’s Arguments (The Prime Minister)
The respondent argued that the decision to prorogue Parliament was a political act falling within the prerogatives of the Crown, traditionally treated as non-justiciable because it concerns the relationship between the Crown, the executive and Parliament. It was submitted that the courts lacked any legal standard by which to assess the political reasons underlying a decision to prorogue, since such reasons involved matters of political judgement rather than law. The respondent argued that proroguing Parliament to begin a new legislative session was a normal and lawful exercise of executive discretion in preparing a Queen’s Speech, and that the length of the prorogation was properly explained by the time required to prepare the Government’s legislative agenda. Finally, it was argued that any perceived constitutional overreach by the executive was a matter for political and electoral accountability rather than judicial intervention, as per the doctrine of separation of powers.
- Court’s Reasoning and Analysis
The first issue before the court was whether the question of the lawfulness of the Prime Minister’s advice was justiciable in a court of law. The court accepted the fact that although the matter presented before them is inherently political, the courts can judge it based on the following reasons. Firstly, the power to (advise to) prorogue the Parliament is a prerogative power and the Prime Minister has a constitutional responsibility to exercise it having regard to the interests of the Parliament. Secondly, although political questions are not justiciable, but courts cannot refuse to consider them just because they are a legal dispute concerning the conduct of politicians. The courts emphasized by saying that most constitutional cases that were presented before the courts in the past were also concerned with politics. Thirdly, the courts have a legal duty to give effect to the law, therefore the fact that ministers are accountable to the parliament does not mean that they are immune from legal accountability or judicial review. Fourthly, if the courts decide this matter, it will not be against the constitutional principle of separation of powers as it is the legal function of the court as per the constitution. Therefore, the court (at para.52) held that it was justiciable for the court to rule on the extent of prerogative powers used by the queen on the advice of the prime minister.
The second issue before the court was whether there was a legal limit on the power to prorogue the Parliament and whether the Prime Minister’s advice crossed that limit. The courts recognized that every prerogative power has a certain legal limit and the limits of prerogative powers are less straightforward. Therefore, it is the function of the courts to determine the limits of prerogative powers by applying fundamental principles of constitutional law. These constitutional principles are not confined to statutory rules but are also developed by common law. The courts found that Parliament was prevented from exercising its legislative functions for five weeks, from the 9th or 12th of September until the 14th of October, which is against the constitutional principle of Parliamentary sovereignty. Therefore, the power to prorogue the Parliament cannot be unlimited. Moreover, Parliament was also prevented from carrying out its scrutiny over the ministers, which is against the constitutional principle of Parliamentary Accountability. Therefore, these principles impose a legal limit on the exercise of prerogative powers by the Prime Minister.
The third issue before the court was whether the Prime Minister’s action affected the Parliament’s constitutional role of holding the ministers accountable. The court (at para.56) found that it did affect as it was not a normal prorogation, it prevented the Parliament from carrying out its constitutional role for five weeks. The fourth issue before the court was whether the Prime Minister had any reasonable justification for his action of advising to prorogue the Parliament. Finally, the court (at para.61) held that there was no good reason the Prime Minister had for his actions. So the advice given by the Prime Minister to the Queen for proroguing the Parliament was unlawful. The final issue before the court was to decide what remedy it would grant. The court (at para.69) held that the advice was unlawful, it was outside the powers of the Prime Minister. Therefore, the court giving the remedy held that prorogation of the Parliament was null, void, and of no effect.
- Judgment and Ratio Decidendi
The Decision
The United Kingdom Supreme Court at (para.61) held that it is impossible to identify any good reason or justification the Prime Minister had for advising the prorogation. Therefore, the advice given by the Prime Minister to the Queen to prorogue the Parliament was unlawful. The appeal was allowed, and the court granted the remedy that the prorogation was null, void, and of no effect, meaning Parliament had never in fact been prorogued.
Ratio Decidendi
The ratio decidendi is that a decision to advise the prorogation of Parliament is justiciable, and it will be unlawful if it has the effect of frustrating or preventing, without reasonable justification, Parliament’s ability to carry out its constitutional functions of legislating and holding the executive accountable. This case establishes the significance of the constitutional principles of Parliamentary sovereignty and Parliamentary accountability, and confirms that prerogative powers have legal limits which can be reviewed and enforced by the courts through judicial review.
- Critical Analysis
8.1 Significance of the Decision
The judgment resolved a direct conflict between the English Divisional Court, which had held the matter was non-justiciable, and the Scottish Inner House, which had held that the prorogation was unlawful. By extending the justiciability analysis developed in Council of Civil Service Unions v Minister for the Civil Service beyond its traditional context, the Supreme Court confirmed that the source of a power being prerogative does not, by itself, makes its exercise immune from judicial review where it is something related to fundamental constitutional principles.
8.2 Implications and Impact
The decision reaffirmed that Parliamentary sovereignty and Parliamentary accountability are enforceable constitutional principles capable of constraining the exercise of executive power. Its practical effect was to restore Parliamentary sessions immediately and to strengthen Parliamentary accountability.
- Conclusion
This case concerned the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks during the Brexit. The Supreme Court held that it was not lawful, because it prevented Parliament from carrying out its constitutional functions without reasonable justification. The key takeaway is that prerogative powers are not exempt from judicial review merely because it is exercised at the highest level of government; where its exercise affects fundamental constitutional principles such as Parliamentary sovereignty and accountability, the courts will definitely intervene in. The significance of the judgment lies in its confirmation that constitutional principles impose real, enforceable limits on executive power. Moreover, some questions were left open by the decision, including precise the scope of how far the courts should go in reviewing politically sensitive prerogative acts, that continue to shape debate on the proper boundaries between the judiciary, the executive and Parliament.
