UNIVERSITY NAME

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COURTS INTERPRETATION OF THE PROROGATION OF THE PARLIAMENT

Date

Courts interpretation of the Prorogation of the Parliament

Outline of the Case

List of Important People

The cases, R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) and the case Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), involved first Miller as the appellant and the Prime Minister as the respondent and then Cherry and others were adjoined as the Respondents and the Advocate General for Scotland as Appellants. The cases were presented before Lord Hale as the President and Lord Heel, and the Deputy President. The interveners included the Lord Advocate, Raymond McCord and Counsel General for Wales, Sir John Major KG CH, Baroness Chakrabarti CBE, and Public Law Project. A panel of 11 justices offered a unanimous ruling of the case on whether the advice by the Prime minister to the Queen to prorogate the Parliament was lawful and with probable cause finding it unlawful. ¹.

Timelines

The hearing took place on 17, 18, and 19 September 2019, while the judgments were delivered on 24th September 2019 ².

List of Important Documents

First, the Memorandum dated 15th August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister’s Office, was presented to the court ³. Secondly, the Memorandum from Nicki Da Costa copied to the prime minister dated 23rd August was also reviewed. The Prime minister’s handwritten comments were also utilized in the case. Additionally, the minutes of the meeting held by the Privy Council and the cabinet before the prorogation date were examined during the case. The primary legal document that was utilized in the case was the constitution of the United Kingdom. Secondly, the records of the parliament proceedings were referred to. Lastly, the previously decided cases touching on the sovereignty of the Parliament were used. ⁴.

Relevant Facts

Although the constitution requires that the prime minister should consider the Parliament’s interests when seeking to advise the Queen to prologue the Parliament, it is clear that the PM did not consider the Parliament’s interests. In this case, Parliament’s interest and the leading cause of concern and alarm were that the Prime Minister had asked the Queen to prorogue the Parliament without reasonable justification.⁵. Parliament needed to discuss the Brexit agreement before the agreement was reached. Proroguing Parliament would mean suspending a significant share of Parliament’s vital activities for the period unreasonably. The Parliament’s sovereignty was infringed because they would not transact any business during the prorogation period.

The proposed prorogation period of 5 weeks was long. The government probably chose that period to coincide with the period when the BREXIT discussions were going to be discussed in the EU.⁶. The five-week period was found to be unreasonable long, and the claim that the prorogation was intended to allow the Queen to write the speech was also deemed unjustifiable^. Therefore, the five weeks of prorogation of the Parliament was way beyond the regular periods, depicting that the intentions for the proposition were to prevent Parliament from fully carrying out its constitutional functions and jeopardize the Parliament’s sovereignty.⁷. This case demonstrates that the timelines for any proposed prorogation of the Parliament should be reasonable to minimize how long Parliament is prevented from performing its constitutional duties.

The PM argued that the government has the constitutional power to prorogue Parliament through the advice of the privy council.⁸. The minutes of meetings were provided to the court indicate the meeting was held on 27^th, the same day that the PM advised the Queen to prorogue the Parliament. Prorogation powers were exercised following the advice of the Privy Council to the Queen with limited time for the Parliament to intervene.⁹.

Identification of Issues

The most fundamental issue that the court needed to identify and respond to was whether the prime minister’s advice to the Queen to prologue the Parliament was within the law and justiciable.¹⁰. The court found and held that there are limits to what the PM could advise her Majesty to do, and advising her Majesty to prorogue the Parliament was found to be outside those limits. The discovery defined those limits that the decision to prorogue Parliament would result in preventing and frustrating Parliament’s efforts to fulfil their constitutional obligations without reasonable cause.¹¹.

Another issue that stood out in the case was whether Her Majesty the Queen had the prerogative powers to prorogue Parliament. Again, as per the constitution, the court declared that as long as the proroguing of the Parliament either prevented or frustrated Parliament’s efforts to perform their constitutional duties without a justifiable and reasonable cause, then proroguing Parliament would be considered unlawful.

Lastly, given the prorogation period’s timing and length, the motive behind the suggestion to prorogue Parliament was questionable. Usually, the Parliament could be prorogued for about five days but, the length of time that the government sought for the prorogation was suspicious. Also, the prorogation came when the government functions before the BREXIT were at high stake.¹². The Parliament’s role in checking the excesses of the executive could not have been more crucial. Therefore, on the lack of evidence to assert that the suggestion to prorogue Parliament was reasonable and justifiable, the decision to prorogue Parliament had to be deemed unlawful.

The Courts Answer the Questions

The courts agreed that the prorogation of Parliament was indeed unlawful for two reasons. First, the prorogation prevented Parliament from scrutinizing the government’s actions during the period and from fulfilling their constitutional obligations without justifiable cause.¹³. The people’s right to have a voice during the agreement of the Brexit would be denied since the House of Commons could not debate the issue while the Parliament was prorogued. Denying Parliament the opportunity to contribute to the BREXIT issues amounted to denying the ordinary citizens to air out their voices since the people elect the parliamentarians to represent them for no justifiable reason¹⁴.

Finally, the courts annulled the prorogation of the Parliament, citing that no sufficient reasons were given by the prime minister to prorogue the Parliament for five weeks. The ruling considered the timing and the length of the prorogation, terming it unreasonable as it would have been the longest in modern history.¹⁵. Consequently, the courts termed the Prorogation null. The court’s ruling pronounced unanimously with 11-0 that the prorogation was null, void and it did not have any legal effect.¹⁶. Consequently, the Queen’s speech during the prorogation would not be binding since the process was unlawful and unjustifiable.

Conclusion

Having listened to Miller’s representation on the challenging of the legality of Prime ministers’ advice to the Queen and the response from the prime minister, the courts finally closed the case on 24th September 2019. Some of the documents used during the proceedings included the prime minister’s handwritten comments, Nicki Costas memorandum, previous rulings, the constitution and the Parliament’s proceedings. One of the facts that were proved in the court is that the PM’s powers and that of the ruling Monarch were limited and had to consider the Parliament’s interest in advising for prorogations. Considering all sides, the courts ruled that the prorogation was unlawful because it infringed the sovereignty of the Parliament. Also, the court pronounced that the prorogation was null, void, and had no legally binding powers because it interrupted Parliament’s constitutional functions for no justifiable reasons.

BIBLIOGRAPHY

Tables of cases

Primary

R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)

Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)

Secondary

Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508

Bobb v Manning [2006] UKPC 22, para 13

Burmah Oil Co Ltd v Lord Advocate [1965] AC 75

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Entick v Carrington (1765)

Mohammed (Serdar) v Ministry of Defence [2017] UKSC 1; [2017] AC 649, para 57

R (UNISON) v Lord Chancellor [2017] UKSC 51, para 119.

R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409, paras 80-82 and 88-89

R v Chaytor [2010] UKSC 52; [2011] 1 AC 684

R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] QB 811, 820

Scott v Scott [1913] AC 417

Tables of Statutes

Bills

Bill of Rights 1688

Statutes

European Union (Withdrawal) (No 2) Act 2019

European Union (Withdrawal) Act 2019

Fixed-term Parliaments Act 2011

Meeting of Parliament Act 1694

Northern Ireland (Executive Formation etc.) Act 2019, section 3.

Northern Ireland (Executive Formation) Act 2019

The European Communities Act 1972

The European Union (Notification of Withdrawal) Act 2017

The European Union (Withdrawal) Act 2018

The European Union Referendum Act 2015

Triennial Acts of 1640 and 1664

Statutory Instruments

European Union (Withdrawal) Act 2018 (Exit Day) (Amendment No 2) Regulations 2019 (SI 2019/859)

Journal Articles

Craig Paul, “The Supreme Court, prorogation and constitutional principle.” OLS [2019] 57.

Cygan Adam, and Graeme Cowie, “The Prorogation Dispute of 2019: one year on.” [2020].

Ekins Richard, ‘Parliamentary Sovereignty and the Politics of Prorogation’ PE [2019] 16.

Falconer Charles, ‘The Prorogation Case 2019: Changing the Law to Preserve the Constitution’ BLI [2020] 21(1).

Gaussen Stephanie, ‘The UK supreme court found that Boris Johnson’s Prorogation of parliament was unlawful Bar News’ TJ NSW BA [2019] 24-25.

Grote Rainer, ‘Brexit and Britain’s Changing Constitution,’ MPY UN LO [2020] 400-417.

Gummow Hon William, ‘BREXIT, PROROGATION AND PREROGATIVE’ HK LJ [2019] 817.

Knight Dean, ‘Brexit, prorogation, and popcorn: Implications miller (no 2)’for New Zealand,’ VUWLR [2020] 249-265.

Llopis Orts “Translating the English Constitutional Discourse into Spanish: The Case of an Illegal Prorogation of Parliament” [2021].

Norton Philip “The United Kingdom: Building the Link between Constituent and MP” R [2020] 19-42.

Schleiter, Petra, and Thomas Fleming, ‘Should the government be able to suspend parliament?’ BP&P LSE [2020].

Twomey Anne, ‘Brexit, the Prerogative, the Courts and Article 9 of the Bill of Rights’ SLSRP [2019].

Website

UK Supreme Court, ‘JUDGMENT R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)’ (Supreme court. uk 24th September 2019) < https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf > accessed 20^th November 2021