73: Brexit – Miller No.2 in the Supreme Court – prorogation unlawful

Aaron Nelson Legal Director

This morning, Lady Hale delivered the judgment of the Supreme Court in Miller (No.2). The court held, unanimously, that the Prime Minister’s advice to the HM Queen to prorogue parliament was unlawful.

Up to the King? It’s not

The court held, first, that the Prime Minister’s advice to HM Queen was a justiciable matter, notwithstanding that it was an exercise of the prerogative. Lady Hale said:

‘The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”.’

In considering prerogative powers, Lady Hale explained that it was necessary to distinguish between two different questions. The first was whether a prerogative power existed and, if so, its extent. The second was whether the exercise of that power, within its limits, was open to legal challenge. This second question might depend upon what the power is all about: some powers are not amenable to judicial review while others are. But there was no doubt that the courts had jurisdiction to decide upon the limits of a prerogative power, and that was what this case was about.

So, what were the limits in this case? Lady Hale explained that two fundamental principles were relevant: One, Parliamentary Sovereignty (that parliament can make laws which everyone must obey) which would be undermined if the Executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. Two, parliamentary accountability: ‘the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to parliament lies at the heart of Westminster democracy’ (Lord Bingham).

Lady Hale then set out the test for determining whether a prorogation was unlawful in a single sentence:

‘[A] decision to prorogue (or advise the monarch to prorogue) 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 the supervision of the executive.’

If the prorogation does have that effect, without reasonable justification, there was no need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.

Lay down the tracks

We’d make two points about the test which the Supreme Court set out.

First, Lady Hale added that, in judging any justification which might be put forward by the Prime Minister, the court must ‘be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.’ Quite why the Prime Minister’s experience is relevant is unclear. Why should the test for a new Prime Minister be different from that for a long-standing one? Or was the court using ‘experience’ as a euphemism for ‘track record’?

Second, the court appears to distinguish between the ‘reasonable justification’ for preventing parliament sitting (which does form part of its test) and the Prime Minister’s ‘motive’ for prorogation (which does not). But is that a true distinction? Prorogation and preventing parliament from sitting are merely two sides of the same ’cause and effect’ coin. Motive and justification both refer to the reasons why the action was taken. So are the court in fact saying that the question is whether, in its view, it would be reasonable to prorogue in the circumstances, and that the court is able to look behind the Prime Minister’s expressed reasons to look at his or her ‘true’ motive?

Get it all wrong

The next question was whether this prorogation would frustrate parliament’s constitutional role. The court considered that this was not a normal prorogation in the run-up to a Queen’s Speech (for which only four to six days were needed); instead, it stopped parliament from executing its functions for five of the eight weeks leading up to a fundamental change to the constitution of the UK on 31 October.

Given that:

‘The effect upon the on fundamentals of our democracy was extreme.’

The only evidence as to why parliament was prorogued was the memo of Nikki da Costa of 15 August, which explained why a Queen’s Speech on 14 October was desirable. But it did not explain why a five week prorogation was necessary; did not discuss the differences between prorogation and recess; and did not consider the effects of prorogation on the preparations for Brexit, in particular, for scrutinising delegated legislation or for securing parliamentary approval for any new withdrawal agreement (as required by EUWA 2018, s13).

The court was therefore bound to conclude 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.’

Put the world to rights

Lady Hale then turned to consider what remedy the court should grant.

She noted that the Scottish Inner House (in Cherry) declared the prorogation null and of no effect and that the government had argued (before the Supreme Court) that the Inner House could not do that because the prorogation was a ‘proceeding in parliament’ which (under the Bill of Rights of 1688) could not be ‘impugned or questioned in any court’.

The Supreme Court disagreed with the government. It considered that prorogation was not a ‘proceeding in parliament’, because, while it took place in the House of Lords chamber in the presence of members of both Houses, it was not their decision, and it was not something on which they could speak or vote. Rather, it was imposed upon them from outside.

Accordingly, as the court had concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect, then the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. As Lady Hale put it:

‘… in effect, when the Royal Commissioners walked into the House of Lords to prorogue parliament, it was as if they walked in with a blank sheet of paper.’

The Supreme Court therefore held (unanimously) that the prorogation was void and of no effect, and so parliament had not been prorogued. It was now for parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next. Unless there was some parliamentary rule of which the court was unaware, they could take immediate steps to enable each House to meet as soon as possible. It wasn’t clear that any step was needed from the Prime Minister, but if it were, the court had noted that would take all necessary steps to comply with the terms of any declaration made by the court.

John Bercow, Speaker of the House of Commons, has said that parliament will resume tomorrow at 11:30am, with opportunities for MPs to hold the government to account over the Supreme Court case: