R ( Miller) v The Prime Minister and related appeal [2019] UKSC 41

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41 was an appeal heard by the Supreme Court of 11 justices concerning the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament for five weeks from a date between 9 and 12 September 2019 until 14 October 2019. The Court allowed Mrs Miller’s appeal from the Divisional Court and dismissed the Advocate General’s appeal from the Inner House, declaring the advice unlawful and the prorogation null and of no effect.

The judgment opened by emphasising that the issue was not when or on what terms the United Kingdom should leave the European Union, but solely whether the prorogation advice was lawful. The Court set out the nature of prorogation as a prerogative power exercised by the Crown on the advice of the Privy Council which brings the current parliamentary session to an end and prevents either House from meeting, debating, passing legislation, scrutinising government policy or asking questions of ministers. The Court distinguished prorogation from dissolution under the Fixed-term Parliaments Act 2011 and from recess, which is decided by each House and during which parliamentary business can continue.

The factual background began with the referendum on 23 June 2016 and the subsequent invocation of article 50 of the Treaty on European Union on 29 March 2017, following the first Miller decision requiring statutory authority for notification. The Court recounted the negotiation of a withdrawal agreement which was rejected three times by the House of Commons, the extension of the notification period to 31 October 2019, Mrs May’s resignation, and Mr Johnson’s appointment as Prime Minister on 24 July 2019. Mr Johnson had made clear his belief that the European Council would only agree to changes in the withdrawal agreement if there was a genuine risk of the United Kingdom leaving without one, yet it was equally clear that a majority of the House of Commons opposed withdrawal without agreement.

On 28 August 2019 an Order in Council was made at Balmoral on the advice of the Prime Minister ordering prorogation. The Court examined three key documents provided in evidence. The first was a memorandum dated 15 August from Nikki da Costa recommending prorogation between 9 and 12 September until 14 October to allow for a Queen’s Speech. The memorandum stated this was the longest session since records began, that there were very few bills suitable for wash-up, that the usual length of prorogation was under ten days, and that the proposal would mean Parliament stood prorogued for up to 34 calendar days though fewer sitting days would be lost given the usual conference recess. It recognised that prorogation had been portrayed as a potential tool to prevent MPs intervening prior to exit day. The Prime Minister approved the recommendation. The second document consisted of his handwritten comments describing the September session as a “rigmarole” and stating he did not see anything especially shocking about the prorogation as it was over the conference season. The third document was a memorandum dated 23 August setting out the arrangements. The Cabinet meeting held by conference call on 28 August after the advice had been given was told the decision was not driven by Brexit considerations but was about pursuing an exciting legislative programme, though the Prime Minister acknowledged the timetable would impact on sitting days and potentially put at risk the ability to pass necessary legislation.

On 3 September Parliament returned from summer recess and the House of Commons passed a motion taking control of the order paper. The European Union (Withdrawal) (No 2) Act 2019 requiring the Prime Minister to seek an extension unless Parliament approved a withdrawal agreement or leaving without one received Royal Assent on 9 September. Meanwhile proceedings had been commenced in Scotland by a cross-party group of petitioners and in England by Mrs Miller. The Lord Ordinary refused the petition on justiciability grounds but the Inner House allowed the appeal, holding the advice was motivated by the improper purpose of stymying parliamentary scrutiny and was unlawful and null. The Divisional Court in England dismissed Mrs Miller’s claim on justiciability grounds. Both cases came before the Supreme Court on 17 to 19 September with submissions from the principal parties and six interveners.

The Court identified four issues: justiciability, the standard of lawfulness, whether the advice met that standard, and remedy. On justiciability, the Court rejected the submission that the matter was non-justiciable because it was inherently political or because the Prime Minister was accountable only to Parliament. The Court emphasised that the power to order prorogation is a prerogative power exercised by the Crown on ministerial advice and that while the courts cannot decide political questions, the fact that a legal dispute concerns politicians or arises from political controversy has never been sufficient reason for the courts to refuse to consider it. The Court cited the Case of Proclamations and Entick v Carrington as examples of the courts adjudicating on the lawful limits of prerogative powers in politically charged periods. The Court held that ministerial accountability to Parliament is no substitute for judicial review, as ministers are responsible to the courts for the lawfulness of their actions. The Court distinguished between two issues concerning prerogative powers: whether a power exists and its extent, which is always justiciable, and whether the exercise of a power within its legal limits is open to challenge on other grounds, which may raise questions of justiciability depending on the nature and subject matter. The Court concluded that the present case concerned the legal limits of the power to prorogue rather than the lawfulness of an exercise within those limits.

On the applicable standard, the Court held that every prerogative power has limits and it is the function of the courts to determine where they lie. The boundaries of a prerogative power relating to the operation of Parliament are illuminated and determined by fundamental principles of constitutional law. The Court identified two such principles as relevant: parliamentary sovereignty and parliamentary accountability. The Court held that the sovereignty of Parliament would be undermined if the executive could through the prerogative prevent Parliament from exercising its legislative authority for as long as it pleased, and that an unlimited power of prorogation would be incompatible with parliamentary sovereignty. Similarly, the principle of parliamentary accountability, described as no less fundamental than parliamentary sovereignty, would be undermined if Parliament were prevented from holding the executive to account. The Court held that the relevant limit can be expressed as follows: a decision to prorogue Parliament will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for supervising the executive, and if the effect is sufficiently serious to justify judicial intervention.

The Court held this standard could be applied in practice. The extent to which prorogation frustrates Parliament’s functions is a question of fact presenting no greater difficulty than many other questions routinely decided by courts. The court must then decide whether the Prime Minister’s explanation is a reasonable justification. The Prime Minister’s wish to end one session and begin another will normally suffice for the short periods of prorogation normal in modern practice. Only in unusual circumstances would further justification be necessary. In considering any justification advanced, the court must recognise that the decision falls within the Prime Minister’s area of responsibility and may involve political judgment, and must therefore consider the justification with sensitivity and caution. Nevertheless it remains the court’s responsibility to determine whether the Prime Minister remained within the legal limits of the power.

Returning to justiciability, the Court held firmly that the question was justiciable because it concerned the extent of the prerogative power, marking the boundary between the prerogative and the constitutional principles of parliamentary sovereignty and responsible government, not the mode of exercise within lawful limits. The Court noted that in addition to the effects-based challenge, the claimants also advanced a motive-based challenge alleging the Prime Minister’s purpose was to prevent Parliament legislating to avoid no-deal withdrawal. The Court held it was appropriate first to decide whether the advice was lawful considering its effects before addressing whether the alternative ground raised justiciable issues.

On the question whether the advice was lawful, the Court emphasised the foundations of the constitution: the United Kingdom is a representative democracy, the House of Commons exists because the people have elected its members, the Government exists because it has the confidence of the House of Commons, it has no democratic legitimacy other than that, and it is accountable to both Houses for its actions. The Court held that the prorogation plainly had the effect of frustrating or preventing Parliament’s constitutional role in holding the Government to account. It prevented Parliament from carrying out that role for five out of a possible eight weeks between the end of summer recess and exit day. Parliament might have decided to recess for party conferences but given the extraordinary situation might have thought scrutiny more important and declined to do so or curtailed the conference recess. Even if Parliament had agreed to the usual three-week conference recess, members would still have been able to hold the Government to account, whereas prorogation prevented that entirely.

The Court held that such an interruption in responsible government might not matter in some circumstances but the circumstances were exceptional. A fundamental constitutional change was due to take place on 31 October 2019. Parliament, and particularly the House of Commons as the democratically elected representatives of the people, had a right to a voice in how that change came about. The House of Commons had already demonstrated by its votes against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019 that it did not support the Prime Minister on the critical issue and that it was especially important that he be ready to face the House.

On whether there was reasonable justification for action having such an extreme effect, the Court held that whilst the Government must be accorded latitude in such decisions, the Court was not concerned with the Prime Minister’s motive but with whether there was a reason for the action. The Court noted that no reason was given for closing down Parliament for five weeks. Everything in the documents was focussed on the need for a Queen’s Speech and why it should be held in the week beginning 14 October, but nothing explained why that required five weeks of prorogation. The unchallenged evidence of Sir John Major was that preparing a Queen’s Speech typically took four to six days and he had never known a government to need as much as five weeks to put together its legislative agenda. The memorandum from Nikki da Costa said much about a new session and Queen’s Speech but nothing about why so long was needed to prepare for it. The only reason given for starting so soon was that wash-up could be concluded within a few days, but this ignored whatever else Parliament might have wanted to do. The proposal did not explain why it was necessary to curtail Brexit-related time, did not discuss what time would be needed to approve any new withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018 and enact necessary legislation, did not discuss the impact on special procedures for scrutinising delegated legislation, and did not address the competing merits of recess and prorogation but wrongly gave the impression they were much the same. The Prime Minister’s reaction describing the September sitting as a “rigmarole” and the absence of any hint that he had regard to his constitutional responsibility as distinct from promoting government policy was significant.

The Court concluded it was impossible on the evidence to conclude there was any reason, let alone a good reason, to advise prorogation for five weeks from 9 or 12 September until 14 October. The Court stated it could not speculate in the absence of further evidence upon what such reasons might have been. It followed that the decision was unlawful.

On remedy, the Court held it should make a declaration that the advice was unlawful and considered whether it should go further as the Inner House had done by declaring the prorogation itself null and of no effect. The essential question was whether Parliament was prorogued or not. The Government argued the Court could not answer that question or declare the prorogation null because to do so would be contrary to article 9 of the Bill of Rights 1688 or the wider privileges of Parliament relating to matters within Parliament’s exclusive cognisance, on the basis that the prorogation itself was a proceeding in Parliament which cannot be questioned in any court.

The Court rejected this argument. Article 9 provides that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament, with equivalent provision in the Claim of Right 1689. The Court noted these are Acts of Parliament which it is a principal role of the courts to interpret, citing its decision in R v Chaytor concerning MPs’ expenses claims. That case established that it is for the court and not Parliament to determine the scope of parliamentary privilege, that article 9 is principally directed to freedom of speech and debate in the Houses and parliamentary committees where the core or essential business of Parliament takes place, and that exclusive cognisance refers to the exclusive right of each House to manage its own affairs without interference. The Court held that prorogation itself, though it takes place in the House of Lords in the presence of members of both Houses, cannot sensibly be described as a proceeding in Parliament. It is not a decision of either House but something imposed upon them from outside. Members cannot speak or vote upon it. The Commissioners act as Royal Commissioners carrying out the Queen’s bidding, not as members of the House of Lords, and have no freedom of speech. This is not the core or essential business of Parliament but rather brings that business to an end.

The Court held it was not precluded by article 9 or any wider parliamentary privilege from considering the validity of the prorogation. Taking a logical approach starting with the advice, the Court held the advice was unlawful and outside the Prime Minister’s powers, which meant it was null and of no effect. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. The Court held that Parliament had not been prorogued and it should make declarations to that effect. The Court noted that counsel for the Prime Minister had stated he would take all necessary steps to comply with any declaration and expected him to do so. However it appeared that as Parliament was not prorogued, it was for Parliament to decide what to do next. There was no need for Parliament to be recalled under the Meeting of Parliament Act 1797 nor had Parliament voted to adjourn or go into recess. Unless there was some parliamentary rule to the contrary of which the Court was unaware, the Speakers could take immediate steps to enable each House to meet as soon as possible to decide upon a way forward, which would be a proceeding in Parliament which could not be called in question in any court.

In short, the Supreme Court unanimously held that the Prime Minister’s advice to prorogue Parliament for five weeks was unlawful because it had the effect of frustrating Parliament’s constitutional functions without reasonable justification, and declared the prorogation itself null and of no effect so that Parliament had not in law been prorogued.

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Scott v Scott [1913] AC 417
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
Bobb v Manning [2006] UKPC 22
R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2) [2017] UKSC 51
Chaytor and Others [2010] UKSC 52
Attorney General v de Keyser’s Royal Hotel Ltd [1920] AC 508
Commissioners of Inland Revenue v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722
Costello [2010] EWCA Crim 371 [2011] 1 AC 684; [2010] 3 All ER 490; [2010] Crim LR 508; [2010] All ER (D) 19; [2011] 1 WLR 588
Download

Horizon scanning for human rights: Accounting for Accountability
Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 10
R (Christian Concern) v Secretary of State for Health And Social Care [2020] EWHC 1546 (Admin)
Privacy International v Investigatory Powers Tribunal [2021] EWHC 27 (Admin)
Miller v College of Policing [2021] EWCA Civ 1926
National Council for Civil Liberties v Secretary of State for the Home Department [2024] EWHC 1181 (Admin)
R. (on the application of Elgizouli) v Secretary of State for the Home Department [2020] UKSC 10