Case of Prorogation ~ Supreme Court judgment (2)

Links added at the end of the post .....

This is the second of two posts considering the Supreme Court's judgment in the prorogation appeals.  The first post looked at how the court held that the advice of the Prime Minister was justiciable and at the standard they set down for adjudicating upon lawfulness. This post considers the remainder of the judgment which addressed lawfulness itself and remedy.

Was the advice lawful?

The court pointed

Case of Prorogation ~ Supreme Court judgment (1)

My previous post (24 September) noted the Supreme Court's unanimous judgment in the two Prorogation appeals. The court held that the advice given to Her Majesty by the Prime Minister (Boris Johnson) to prorogue Parliament was justiciable and also unlawful.  The consequence of the advice being unlawful was that the Order in Council of 28 August 2019 was also unlawful, void and of no effect and should be quashed with the result that Parliament was not prorogued.

When this litigation commenced, there were

Prorogation Unlawful ~ Supreme Court judgment

UKSC 24 September 2019

On Tuesday 24 September the Supreme Court of the UK handed down judgment in the Prorogation-related judicial reviews - previous post.

It is a judgment that will resonate around the common law world in which many Parliamentary systems are based on the Westminster-model.

The court held unanimously that the advice given to Her Majesty by the Prime Minister (Boris Johnson) to prorogue Parliament was justiciable and also unlawful.  The court held

Prorogation ~ Australia

The present prorogation of the UK Parliament is particularly controversial because of the imminence of Brexit and the fact that no withdrawal agreement has been reached. The present House of Commons is opposed to withdrawal from the EU without an agreement and has legislated to try to prevent that taking place without its consent - previous post.  The government, headed by Prime Minister Boris Johnson, has stated that it prefers the UK to leave the EU with an agreement but if one cannot be secured then Brexit should still take place on 31 October.  The prorogation has been challenged in the courts and judgment of the Supreme Court is expected in the coming week - previous post.

The power to prorogue

The prorogation litigation 17-19 September 2019

UKSC - September 2019

Update 23 September - Judgment will be handed down at 1030 on 24 September.

Prorogation of parliament was ordered on 28 August and took place on 9 September. The prorogation lasts until 14 October and was ordered by HM The Queen acting, via the Privy Council, on the "advice" of the Prime Minister.  It is widely thought that the true reason for this lengthy prorogation is to remove an awkward House of Commons from the political scene so that the government can get on unhindered with its Brexit policy.

The prorogation removes

Prorogation of Parliament: Supreme Court to hear challenges

"The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases" - Erskine May at para 8.5.

That statement sets out the basic legal position relating to prorogation.  Prorogation is dealt with in greater detail by Graham Cowie in a House of Commons Library Briefing Paper - CBP8589. In practice, the prerogative power to prorogue parliament is exercisable

The European Union (Withdrawal) (No 2) Act 2019

The Prime Minister said that "he would rather be dead in a ditch" than seek a further extension of UK membership of the EU and Michael Gove (Chancellor of the Duchy of Lancaster), in an interview with Andrew Marr, refused to guarantee that government would obey legislation to block a no-deal Brexit - The Guardian 1 September 2019.

The European Union (Withdrawal) (No 2) Act 2019 is now law and imposes certain duties relating to Brexit on Ministers including duties on the Prime Minister.

That Ministers are under an obligation

Prorogation and the courts

England and Wales:

The High Court (Divisional Court of the Queen's Bench Division) - Lord Burnett CJ, Sir Terence Etherton MR and Dame Victoria Sharp (President QBD) held that the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts-  - Judiciary - Gina Miller v Prime Minister and others [2019] EWHC 2381 (QB). 

Scotland:

In Scotland's Court of Session (Outer House) - Lord Doherty - reached

Extraordinary times ~ Parliament 9 September 2019

Extraordinary times:

It is wholly inadequate to say that the political events of the last few days have been "utterly extraordinary." Even during the many turmoils since the end of World War 2 it is impossible to find a situation in which there has been this degree of breakdown in the trust required between government and parliament. Political actors have to be trusted to observe the laws and conventions underpinning the UK's uncodified and, at times, ill-defined constitutional arrangements. In particular, trust is crucial so that government respects the role of parliament and vice versa.

Resignations:

Suspicion was confirmed by

4 September ~ What happened

Updated 6 September:

Proceedings in the House of Commons on 4 September 2019 included the passage of the European Union (Withdrawal) (No 6) Bill (the No.6 Bill) through all its House of Commons stages. The Bill then proceeded to the House of Lords.  The Commons also held a vote, under the Fixed-term Parliaments Act 2011, for an early general election.

Prorogation:

The Prorogation Order requires the prorogation of Parliament

3 September 2019 ~ What happened: minus the rhetoric!

Court of Session

On 3 September 2019, the House of Commons returned after its summer recess which commenced 25 July. The day also saw the substantive hearing in Scotland's Court of Session of a judicial review relating to the prorogation of Parliament.

House of Commons:

An application to hold an emergency debate was made by Sir Oliver Letwin MP who said - " ...in the light of the Government’s decision to prorogue Parliament next week it has become an urgent matter for Parliament, and particularly this House, to discuss whether it can accept a no-deal exit. I therefore ask you to grant an urgent debate under Standing Order No. 24."  The Speaker

Notable cases (7) ~ M v Home Office

M v Home Office [1993] UKHL 5, [1993] 3 WLR 433, [1994] 1 AC 377 was decided by the House of Lords in 1993.  The appeal gave rise to issues of constitutional importance.  The case concerned the breach of an injunction requiring the return to the UK of M who had been removed to Zaire. A finding of contempt was made against the Home Secretary, then Mr Kenneth Baker MP, but only in his official capacity and not his personal capacity. For the first time, a Minister of the Crown was held in contempt of court.

The House of Lords (Lords Keith, Templeman, Griffiths, Browne-Wilkinson, Woolf) rejected the proposition that the courts did not have power to enforce the law against a Minister of the Crown. Applications for judicial review were not 'proceedings against the Crown' for the purposes of the Crown Proceedings Act 1947: accordingly injunctive relief against a Minister or officer of the Crown is available in judicial review.

The most detailed speech