Supreme Court quashes prorogation of Parliament
Prime Minister Boris Johnson acted illegally in securing a five week prorogation of Parliament and the prorogation order is void and must be quashed, the UK Supreme Court ruled today.
All 11 Justices agreed that the decision was unlawful, void and of no effect.
The decision upholds that of the Court of Session in the case brought by 79 parliamentarians led by Joanna Cherry QC, MP, and reverses that of the High Court of England & Wales in the case brought by Gina Miller, in which the lower court ruled that the issue was non-justiciable.
Giving the judgment of the court, the President, Lady Hale, said it was important, once again, to emphasise that these cases were not about when and on what terms the United Kingdom was to leave the European Union, but only about whether the advice given by the Prime Minister to the Queen on 27 or 28 August, that Parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful, and the legal consequences if it was not.
The first question was whether the lawfulness of the advice to Her Majesty was justiciable. The courts had 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”. However, in considering prerogative powers, 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 on what the power is all about: some powers were not amenable to judicial review while others were. However, there was no doubt that the courts had jurisdiction to decide on the existence and limits of a prerogative power. All the parties to this case accepted that. The present court has concluded that this case was about the limits of the power to advise Her Majesty to prorogue Parliamentm and this was justiciable.
The second question, therefore, was what were the limits to that power? Two fundamental principles of the constitution were relevant to deciding that question. The first was parliamentary sovereignty. This 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. The second fundamental principle was parliamentary accountability: in the words of Lord Bingham, senior Law Lord, “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. The power to prorogue was limited by the constitutional principles with which it would otherwise conflict.
For present purposes, the relevant limit on the power to prorogue was this: that a decision to prorogue (or advise the monarch to prorogue) would be unlawful if the prorogation had 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. In judging any justification which might be put forward, the court had of course to be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.
But if the prorogation did 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.
The third question, therefore, was whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Proroguing Parliament was quite different from Parliament going into recess. While Parliament was prorogued, neither House could meet, debate or pass legislation, or debate Government policy. Nor might members ask written or oral questions of ministers or meet and take evidence in committees. This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the constitution of the United Kingdom on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, had a right to a voice in how that change came about. The effect on the fundamentals of our democracy was extreme.
No justification for taking action with such an extreme effect had been put before the court. The court was bound to conclude, therefore, 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.
The final question was what remedies the court should grant. The court could certainly declare that the advice was unlawful. The Inner House went further and declared that any prorogation resulting from it was null and of no effect. The Government argued 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. But it was quite clear that the prorogation was not a proceeding in Parliament. It was something which had been imposed on Parliament from outside. It was not the core or essential business of Parliament which the Bill of Rights protected; quite the reverse: it brought that core or essential business to an end.
The conclusion that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect meant that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. The prorogation was also void and of no effect. Parliament had not been prorogued.
It would be for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there was some parliamentary rule to the contrary, they could take immediate steps to enable each House to meet as soon as possible. It was not clear that any step was needed from the Prime Minister, but if it was, the court was pleased that his counsel had told the court that he would take all necessary steps to comply with the terms of any declaration made.
It followed that the Advocate General’s appeal in the case of Cherry was dismissed and Mrs Miller’s appeal was allowed. The same declarations and orders should be made in each case.
Click here to access the judgment.