In a hard hitting, hair raising and historic judgment titled R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) in  UK SC 41 on appeals from  EWHC 2381 (QB) and  CSIH 49, Lady Hale who presided the 11 Judge Bench read out on 24 September, 2019 the landmark judgment by which United Kingdom Supreme Court has unanimously declared the prorogation of UK Parliament by Boris Johnson to be unlawful and void. Very rarely do we see in UK the judiciary stepping in as directly as we notice here! In this leading case the UK Supreme Court felt it imperative to step in and declare the prorogation of Parliament by PM Boris Johnson to be unlawful and void!
Without mincing any words, it was held clearly, categorically and convincingly that, “A decision will be unlawful if it frustrates the ability of the Parliament to carry out its constitutional functions.” This momentous judgment has grabbed the eyeballs cutting across boundary lines all across the world. We thus see that the Supreme Court unanimously allows Mrs Miller appeal and dismisses the Advocate General for Scotland’s appeal.
To start with, the 11-Judge Bench comprising of President Lady Hale and Deputy President Lord Reed while giving the judgment of the Court for themselves along with Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales first and foremost set the ball rolling by first and foremost pointing out in para 1 that, “It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”
What is prorogation
On this subject, it would be pertinent to discuss what paras 2 to 6 says on this score. To begin with, para 2 states that, “Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen’s Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.”
Following next, what we then see in para 3 is this: “Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.”
Going forward, it is then pointed out in para 4 that, “Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.”
Furthermore, para 5 then enumerates that, “Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances either the House of Commons votes, by a majority of at least two thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty’s Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty’s power to prorogue Parliament (section 6(1)).”
Moving on, it is then enunciated in para 6 that, “Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.”
The run-up to this prorogation
Time now to give a brief background. It is firstly pointed out in para 7 that, “As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis. Immediately after the referendum, Mr David Cameron resigned as Prime Minister. Mrs Theresa May was chosen as leader of the Conservative party and took his place.”
What follows next in para 8 is this: “The machinery for leaving the European Union is contained in article 50 of the Treaty on European Union. This provides that any member state may decide to withdraw from the Union “in accordance with its own constitutional requirements”. That member state is to notify the European Council of its intention. The Union must then negotiate and conclude an agreement with that member state, “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. The European Union treaties will cease to apply to that state when the withdrawal agreement comes into force or, failing that, two years after the notification unless the European Council in agreement with the member state, unanimously decides to extend this period.”
Going ahead, it is then brought out in para 9 that, “On 2nd October 2016, Mrs May announced her intention to give notice under article 50 before the end of March 2017. Mrs Gina Miller and others challenged her power to do so without the authority of an Act of Parliament. That challenge succeeded: R (Miller) v Secretary of State for Exiting the European Union  UKSC 5;  AC 61. Parliament responded by passing the European Union (Notification of Withdrawal) Act 2017, which received royal assent on 16th March 2017 and authorised the Prime Minister to give the notification. Mrs May did so on 29th March 2017.”
Of course, it is then further brought out in para 10 that, “The Parliament was dissolved on 3rd May 2017 and a general election was held on 8th June 2017. The result was that Mrs May no longer had an overall majority in the House of Commons, but she was able to form a Government because of a “confidence and supply” agreement with the Democratic Unionist Party of Northern Ireland. Negotiations for a withdrawal agreement with the European Council proceeded.”
While explaining further, it is then illustrated in para 11 that, “Meanwhile, Parliament proceeded with some of the legislative steps needed to prepare United Kingdom law for leaving the Union. The European Union (Withdrawal) Act 2018 came into force on 26th June 2018. In brief, it defined “exit day” as 29th March 2019 but this could be extended by statutory instrument (section 20). From that day, it repealed the European Communities Act 1972, the Act which had provided for our entry into what became the European Union, but it preserved much of the existing EU law as the law of the United Kingdom with provision for exceptions and modifications to be made by delegated legislation. Crucially, section 13 requires Parliamentary approval of any withdrawal agreement reached by the Government. In summary it provides that a withdrawal agreement may only be ratified if (a) a Minister of the Crown has laid before Parliament a statement that political agreement has been reached, a copy of the negotiated withdrawal agreement and a copy of the framework for the future relationship; (b) the House of Commons has approved the withdrawal agreement and future framework; (c) the House of Lords has, in effect, taken note of them both, and (d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.”
Interestingly enough, para 12 then brings out that, “A withdrawal agreement, setting out terms for a “smooth and orderly exit from the European Union” and a political declaration, setting out a framework for the future relationship, to be negotiated by the end of 2020, were concluded on 25th November 2018. However, the agreement was rejected three times by the House of Commons, on 15th January 2019 (by 432 to 202 votes), on 12th March 2019 (by 391 to 242 votes) and on 29th March 2019 (by 344 to 286 votes).”
To be sure, it is then pointed out in para 13 that, “On 20th March 2019 the Prime Minister had asked the European Council to extend the notification period. This was granted only until 12th April 2019. However, on 8th April 2019, the European Union (Withdrawal) Act 2019 was passed. This required a Minister of the Crown to move a motion, that day or the next, that the House of Commons agrees to the Prime Minister seeking an extension to a specified date and, if the motion was passed, required the Prime Minister to seek that extension. Pursuant to that Act, the Prime Minister sought an extension, which on 10th April 2019 was granted until 31st October 2019. The regulation changing the “exit day” was made the next day (European Union (Withdrawal) Act 2018 (Exit Day) (Amendment No 2) Regulations 2019 (SI 2019/859)). Thus the current position, under both article 50 of the Treaty on European Union and the European Union (Withdrawal) Act 2018 is that the United Kingdom will leave the Union on 31st October 2019 whether or not there is a withdrawal agreement (but this is now subject to the European Union (Withdrawal) (No 2) Act 2019, see para 22 below).”
To put things in perspective, it is then pointed out in para 14 that, “Mrs May resigned as leader of the Conservative party on 7th June 2019 and stood down as Prime Minister on 24th July after the Conservative party had chosen Mr Boris Johnson as its leader. Mr Johnson has on many occasions made it clear that he believes that the European Council will only agree to changes in the withdrawal agreement if they think that there is a genuine risk that the United Kingdom will leave without any such agreement. He appointed Mr Michael Gove Cabinet Office Minister with a view to preparing for a “no deal” exit. Yet it was also clear that a majority of the House of Commons would not support withdrawal without an agreement.”
What is then unfolded in para 15 is this: “On 28th August 2019, Mr Jacob Rees-Mogg, Lord President of the (Privy) Council and Leader of the House of Commons, Baroness Evans of Bowes Park, Leader of the House of Lords, and Mr Mark Spencer, Chief Whip, attended a meeting of the Privy Council held by the Queen at Balmoral Castle. An Order in Council was made ordering that “the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019” and that the Lord Chancellor “do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly”. We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.”
As it turned out, it is then clarified in para 16 that, “We do not know the contents of three documents leading up to that advice, annexed to a witness statement from Jonathan Jones, Treasury Solicitor and Head of the Government Legal Department. His evidence is that his department had made clear to all relevant departments, including the Prime Minister’s Office, the requirement to make thorough searches for and to produce all information relevant to Mrs Miller’s claim.”
More consequentially, it is then revealed in para 17 that, “The first document is a Memorandum dated 15th August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister’s Office, to the Prime Minister and copied to seven other people, including Sir Mark Sedwill, Cabinet Secretary, and Dominic Cummings, Special Adviser. The key points made in the Memorandum are:
· This had been the longest session since records began. Because of this, they were at the very end of the legislative programme of the previous administration. Commons and Lords business managers were asking for new Bills to ensure that Parliament was using its time gainfully. But if new Bills were introduced, the session would have to continue for another four to six months, or the Bills would fall at the end of the session.
· Choosing when to end the session – ie prorogue – was a balance between “wash up” – completing the Bills which were close to Royal Assent – and “not wasting time that could be used for new measures in a fresh session”. There were very few Bills suitable for “wash-up”, so this pointed to bringing the session to a close in September. Asking for prorogation to commence within the period 9th to 12th September was recommended.
· To start the new session with a Queen’s Speech would be achievable in the week beginning 14th October but any earlier “is extremely pressured”.
· Politically, it was essential that Parliament was sitting before and after the EU Council meeting (which is scheduled for 17th-18th October). If the Queen’s Speech were on 14th October, the usual six-day debate would culminate in key votes on 21st and 22nd October. Parliament would have the opportunity to debate the Government’s overall approach to Brexit in the run up to the EU Council and then vote on it once the outcome of the Council was known.
· It must be recognised that “prorogation on its own and separate of a Queen’s Speech, has been portrayed as a potential tool to prevent MPs intervening prior to the UK’s departure from the EU on 31st October”. The dates proposed sought to provide reassurance by ensuring that Parliament would sit for three weeks before exit and that a maximum of seven days were lost apart from the time usually set aside for the conference recess.
· The usual length of a prorogation was under ten days, though there had been longer ones. The present proposal would mean that Parliament stood prorogued for up to 34 calendar days but, given the conference recess, the number of sitting days would be far less than that.
· The Prime Minister ticked “Yes” to the recommendation that his PPS Approach the Palace with a request for prorogation to begin within the period Monday 9th September to Thursday 12th September and for a Queen’s Speech on Monday 14th October.”
What’s more, para 18 then reveals that, “The second document is the Prime Minister’s handwritten comments on the Memorandum, dated 16th August. They read:
“(1) The whole September session is a rigmarole introduced [words redacted] t [sic] show the public that MPs were earning their crust.
(2) So I don’t see anything especially shocking about their prorogation.
(3) As Nikki nots [sic], it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.””
Still further, para 19 then further reveals that, “The third document is another Memorandum from Nikki da Costa, dated 23rd August, again to the Prime Minister and copied to five people, including Sir Mark Sedwill and Dominic Cummings. This sets out the proposed arrangements, including a telephone call between the Prime Minister and Her Majesty at 6.00 pm on Tuesday 27th August, formally to advise prorogation, the Privy Council meeting the next day, a cabinet meeting by conference call after that, and a press notice after the Draft remarks for the Cabinet meeting and a draft letter to MPs (approved by the Chief Whip) were annexed.”
To put it succinctly, the Bench then holds in para 20 that, “We also have the Minutes of the Cabinet meeting held by conference call at 10.05 am on Wednesday 28th August, after the advice had been given. The Prime Minister explained that it was important that they were “brought up to speed” on the decisions which had been taken. It was also “important to emphasise that this decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations; it was about pursuing an exciting and dynamic legislative programme to take forward the Government’s agenda”. He also explained that the timetable did not conflict with the statutory responsibilities under the Northern Ireland (Executive Formation etc) Act 2019 (as it happens, the timetable for Parliamentary sittings laid down in section 3 of that Act requires that Parliament sit on 9th September and, on one interpretation, no later than 14th October). He acknowledged that the new timetable would impact on the sitting days available to pass the Northern Ireland Budget Bill and “potentially put at risk the ability to pass the necessary legislation relating to decision-making powers in a no-deal scenario”. In discussion at the Cabinet meeting, among the points made was that “any messaging should emphasise that the plan for a Queen’s Speech was not intended to reduce parliamentary scrutiny or minimise Parliament’s opportunity to make clear its views on Brexit… Any suggestion that the Government was using this as a tactic to frustrate Parliament should be rebutted.” In conclusion, the Prime Minister said that “there were no plans for an early General Election. This would not be right for the British people; they had faced an awful lot of electoral events in recent years”.”
Truth be told, the Bench then notes in para 21 that, “That same day, the Prime Minister sent a letter to all MPs updating them on the Government’s plans for its business in Parliament, stressing his intention to “bring forward a new bold and ambitious domestic legislative agenda for the renewal of our country after Brexit”.”
As things stood, para 22 then illustrates that, “On 3rd September Parliament returned from its summer recess. The House of Commons passed a motion that MPs should take control of the order paper – in other words decide for themselves what business they would transact. On 4th September what became the European Union (Withdrawal) (No 2) Act 2019 passed all its stages in the House of Commons. On 6th September the House of Lords suspended its usual rules so that the Bill could be passed. It received Royal Assent on Monday 9th September. The import of the Act is to require the Prime Minister on 19th October to seek, by a letter in the form scheduled to the Act, an extension of three months from the European Council, unless by then Parliament has either approved a withdrawal agreement or approved leaving without one.”
More significantly, it is then enjoined in para 25 that, “Meanwhile, as soon as the prorogation was announced, Mrs Gina Miller launched proceedings in the High Court in England and Wales, seeking a declaration that the Prime Minister’s advice to her Majesty was unlawful. Those proceedings were heard by a Divisional Court (Lord Burnett of Maldon, Lord Chief Justice of England and Wales, Sir Terence Etherton, Master of the Rolls and Dame Victoria Sharp, President of the Queen’s Bench Division) on 5th September and their judgment was delivered on 11th September:  EWHC 2381 (QB). They dismissed the claim on the ground that the issue was not justiciable. They granted a “leap-frog” certificate so that the case could come directly to this court.”
Without mincing any words, the eleven Judges of the highest court in the United Kingdom have in an extraordinary unanimous judgment has struck down as unlawful a recommendation by Prime Minister Boris Johnson to Queen Elizabeth to suspend Parliament for five weeks ahead of Britain’s scheduled October 31 exit from the Europena Union. The Justices, sitting on the largest permissible Bench of the 12-Judge Supreme Court gave presiding officers of both Houses of Parliament the freedom to reconvene the Houses immediately.
While pronouncing the landmark decision, the Supreme Court President Brenda Hale said 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.” She added that, “Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices. It is for Parliament and in particular, the Speaker and the [House of] Lords to decide what to do next.”
Be it noted, the Supreme Court ruled explicitly on “whether the advice given by the Prime Minister to Her Majesty the Queen on 27 or 28 August that Parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not”. It said the PM’s action was unlawful and the prorogation of Parliament was “void and of no effect”. It also made clear that the question was ‘justiciable’.
As we see, the summary said that, “The court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means 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.”
It was also clarified by the Supreme Court that, “As Parliament is not prorogued, it is for Parliament to decide what to do next. Also, because it is not prorogued, it need not be recalled; and it has not voted to adjourn or go into recess.” The Court thus laid down that, “Unless there is some Parliamentary rule to the contrary of which we are unaware, the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward.”
It must be mentioned here that eminent Constitutional expert Upendra Baxi who is Professor of Law, University of Warwick and former Vice Chancellor of Universities of South Gujarat and Delhi remarked rightly that, “This was truly a Kesavananda Bharati moment for the British court. But unlike the full Indian court, there was no riot of concurring and dissenting opinions. Of course, no judicial decision is beyond scially responsible critique. But in asking Parliament to finally decide the terms and conditions of Brexit, the British court has valuably upheld the principles of democratic accountability of a sovereign Parliament.”
No doubt, this is a major setback for British PM Boris Johnson. He himself said that he strongly disagreed with the ruling but he would respect it and of course Parliament will come back. The Supreme Court in its summary also made it clear that this was not a normal prorogation. It said that, “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 31 October.” It also made it clear that, “Parliament…has a right to voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.” On the government’s argument that the courts had no business jumping in because the decision to prorogue Parliament lay in the territory of political judgment, not legal standards, the Supreme Court strongly reaffirmed that it was firmly of the opinion that the question of the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. The official summary of the judgment also sought to make it clear that, “Courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries”. Very rightly so! The British PM and his party have no option but to abide by it as the Supreme Court President Lady Hale had minced no words to say that the effect of the suspension on the fundamentals of democracy was extreme! There can be no denying or disputing it! We thus see that the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is allowed. Needless to say, this landmark and extremely laudable judgment is a big rebuke to UK PM Boris Johnson and plunges Brexit into further turmoil!