Friday, 20 September 2019

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
the ability of parliament to scrutinise the executive. Parliament is closed - there are no debates, no committee meetings, questions may not be asked, motions may not be tabled.

Judicial review applications were brought by Mrs Gina Miller before the High Court (England and Wales) and by Joanna Cherry QC MP and others before the Court of Session (for Scotland).

Gina Miller lost in the High Court which ruled that the prorogation was not justiciable in Her Majesty's courts.

Joanna Cherry lost in the Court of Session (Outer House) but was successful before the Inner House where it was held that held that the issue of prorogation was, in the circumstances, justiciable. When the reasons for the prorogation were considered they demonstrated that the true reason for the prorogation was to reduce the time for Parliamentary scrutiny of Brexit and thus prevent Parliament from performing its central role in scrutinising Government action.

Gina Miller and the UK government (i.e. Advocate-General for Scotland) brought respective appeals to the Supreme Court. The appeals were heard over 17 to 19 September 2019.

Issues in the Miller appeal:
  1. Whether the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is justiciable in the courts; and
  2. If the decision is justiciable and the appeal is not academic, whether that advice was lawful.
See Supreme Court R (Miller) v The Prime Minister

Issues in the government appeal:
  1. Whether the challenge to the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is justiciable in the courts.
  2. Whether the appeal is in any event academic, given Parliamentary sittings before the UK’s exit from the EU on 31 October 2019?
  3. If the appeal is justiciable, whether the Prime Minister’s advice was lawful.
See Supreme Court Cherry and others v Advocate-General for Scotland and note that the Court of Session granted a declarator that the advice to prorogue Parliament on a day between 9 and 12 September until 14 October, and hence any prorogation which followed thereon, is unlawful and thus null and of no effect.

Material submitted to court:

Supreme Court ... Prorogation-related judicial review cases - where written submissions of the parties and interveners can be seen.

On 19 September, the government published its "Submissions on Relief".  Relief is about the remedies available to the court in the event that the government is not successful in the litigation.  The document commences - "These are the Prime Minister and Advocate General for Scotland’s further submissions on relief, in the event the Court is minded to allow the English appeal and dismiss the Scottish appeal, save as relates to the form of interlocutor pronounced by the Inner House of the Court of Session."


Lady Hale remarked that "none of this is easy" and pointed out that the case was NOT about if and when Brexit occurs and, if so, on what terms. The court was solely concerned with the legality of the prorogation advice given by the Prime Minister to HM The Queen. There were times during the oral hearings when counsel had to be reminded of this purpose and the court did so robustly.

Essentially the questions are: is the advice justiciable?  If so, was the advice lawful or unlawful? (The court will give reasons for its finding). If the advice was unlawful then what remedy will the court apply - e.g. declaration.

If the finding is against the government then the rule of law requires that the government will take appropriate action to comply with the court's decision.

Recall of parliament:

In the making of the prorogation order it appeared to be accepted that HM The Queen has no personal prerogative such that her approval could ensure that the order was lawful even if the Prime Minister's advice were not. The Queen's role in the making of the order is entirely formal and, by convention, she is bound as a constitutional monarch to accept the advice of the Prime Minister.

What follows is a tentative look at the situation arising IF the court rules that the prorogation advice was unlawful. In that event, what is the effect on the prorogation order of 28 August which ordered prorogation and also directed the Lord Chancellor to "prepare a Commission accordingly."

The Commission performed its role in the House of Lords Chamber at the prorogation ceremony held in the small hours of 9 September.

The prorogation event in the House of Lords Chamber appears to be a "proceeding in Parliament" and, as such, is protected from challenge in any court by Article 9 of the Bill of Rights - "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."  It would be stretching matters considerably to say that events leading up to the prorogation were also somehow a "proceeding in parliament."  After all, the prorogation order was made by the Privy Council when it met at Balmoral in late August and the Privy Council is certainly not a part of parliament.  If that view is correct, then the prorogation advice and the order itself is not protected from challenge by the Bill of Rights.

If it is ruled that the prorogation advice is unlawful then it appears that the prorogation order is tainted and could be liable to be quashed by the court. The Court of Session (Inner House) had issued a declarator that any prorogation based on the advice was "null and of no effect" and Mr Aidan O'Neill QC, representing Cherry and others, pressed the Supreme Court not to "recall" that declarator.

If the court does quash the Order in Council then the consequence would seem to be that the prorogation itself is void and that Parliament can resume its sittings.

However, it may be that the court will not issue a quashing order but will content itself with a declaration and give leave to parties to apply for further relief if necessary. That would allow for the matter to be resolved by the government along with the parliamentary authorities.

Note - 28 September:

The Supreme Court held that the prorogation ceremony was not a proceeding in Parliament.  It was not a decison of either House of Parliament. Quite the contrary: it was imposed upon them from outside. It was not something upon which Members of Parliament could speak or vote. The Commissioners had no freedom of speech.  The prorogation was not the core or essential business of Parliament. It brought that core or essential business to an end.  See Cherry / Miller 2 judgment at para 68.  The Supreme Court quashed the Order in Council with the result that Parliament had not been prorogued.

Other material:

Prorogation is dealt with in greater detail by Graham Cowie in a House of Commons Library Briefing Paper - CBP8589.

Prorogation Order - Privy Council 28 August 2019 Orders Approved.

Law and Lawyers - 17 September - Prorogation of Parliament: Supreme Court to hear challenges

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