Julie Dunane CG Professional

Supreme Court: Why The Attempts To Prorogue Parliament Was unlawful?

Julie Duane, Solicitor Advocate at CG Professional.

If you have been following the news lately you will be aware that an appeal was made to the Supreme Court regarding whether the advice given by the Prime Minister to the Queen, that Parliament should be prorogued for a period of approximately 5 weeks, was lawful.  A summary of that judgment is discussed in this article.

What is prorogation?

Prorogation means a suspension of Parliament during which time the House cannot meet to debate and/or pass legislation.  The act of prorogation is not something which can be dictated by Parliament but is a power exercised by the Crown on the advice of the Privy Council.  It is a formality which has been in the UK for over a century.

Relevant Background

Following the referendum on 23 June 2016, a decision was made by the public to exit the European Union.  Whilst the result was not technically legally binding, it was a promise which the government at that time had pledged to honour.  Notably, successive Prime Ministers have also acted in accordance with that promise. 

Within the Judgment of the Supreme Court, delivered by Lady Hale, they outlined an overview of the mechanics required to leave the European Union contained under Article 50 of the Treaty of European Union. The Judgment also summarised the resignation of David Cameron and the appointment of Teresa May. There was also reference to her various attempts to negotiate a deal with the European Union and Mrs May’s attempts to progress her proposed deal through Parliament during her tenure. 

Following Teresa May’s failure to secure a deal supported by Parliament, on or around 7 June 2019 she resigned from her position as Prime Minister.  On or around 24 July 2019, following a campaign by several individuals of the Conservative party, Boris Johnson was elected and appointed to be the UK’s Prime Minister.

Meeting with the Queen

On 28 August 2019, Mr Jacob Rees Mogg, Lord President of the Privy Council, along with several other parliamentary individuals, attended a meeting of the Privy Council held by the Queen at Balmoral Castle.  As part of that meeting, an Order was prepared on the following terms “Parliament to be prorogued on a day no earlier than Monday, 9 September and no later than Thursday 12th day of September 2019 to Monday the 14th day of October 2019.”  It is understood by the Court that the Queen was acting upon the advice prepared by the Prime Minister in acquiescing this decision.

The Court also drew reference to a memorandum dated 15 August 2019 from Nikki da Costa, Director of Legislative Affairs in the Prime Minister’s office, which raised the following points:

  1. to start a new session with the Queen’s speech would be achievable in the week beginning 14 October but any earlier ‘is extremely pressured’;
  2. whilst it is recognised that the prorogation has been viewed as an attempt to preclude MP’s intervening in UK’s departure of the EU and that this is being veiled as a matter in connection with the Queen’s speech, it was reported that the dates proposed to provide reassurance that this was not the intention of the prorogation;
  3. whilst it is accepted that the usual length of prorogation was usually under 10 days it had been noted that previous cases had been longer; and
  4. It was also acknowledged that the Prime Minister ticked yes to the recommendation that his PPS approach the palace for the request to begin within the period 9 -12 September and for a Queen’s speech on 14 October 2019.

These points are not exhaustive of those contained within the memorandum.

The purpose of the proceedings

Whilst the Government was presenting submissions to the Queen in relation to why prorogation was required, on or around 30 July 2019 and thereafter, a number of backbench MPs sought to pursue their own action on the premise that Parliament was being prorogued to avoid further debate in the run-up to Brexit.  As such, cases were brought in Scotland and in Wales thereby resulting in the matter being referred to the Supreme Court. The Supreme Court was therefore required to determine:

  1. whether the Prime Minister’s advice to the Queen was lawful justiciable (subject to trial in a court of law);
  2. if it is, by what standard is its lawfulness to be judged;
  3. by what standard was it lawful; and
  4. if it was not, what remedy should the court grant?

Dealing with each limb in turn, the Judgment confirmed the following:

Was it justifiable?

The Court held:

before reaching a conclusion as to justiciability, the court has to determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament and whether the Prime Minister’s advice trespassed beyond that limit…

In order to determine this position, they would first need to identify the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged.

What standard is the lawfulness of the advice to be judged?

The Court held that “a decision to prorogue Parliament…will be unlawful if it 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The Court, therefore, held that they were required to determine whether the Prime Minister remained within the legal limits of this power.

The answer on justiciability

The Court held that the advice from the Prime Minister to the Queen was justiciable.  Based on the evidence provided it is a well-established and accepted principle that the courts can rule on the extent of prerogative powers.

The alternative ground of challenge

This relates to the motives of the Prime Minister when requesting the prorogation in the first place. Based on the evidence before it, the Court held that holding the prorogation for five weeks was intended to prevent Parliament from exercising is legislative connections so far as possible until the negotiations have been completed.

Was the advice lawful

This conclusion was reached due to:

  1. the evidence of Sir John Major, former Prime Minister, being clear – i.e. that the timetable of a Queen’s speech is between 4 and 6 days, not 5 weeks;
  2. no evidence was presented by the government to confirm why a 5-week timetable was required and there is no reference to this reasoning within Nikki Da Costa’s memorandum;
  3. the memorandum fails to address “the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same”; and
  4. There was no evidence to counteract the suggestion that the Prime Minister was not simply seeking to promote his own policies which is contrary to his constitutional responsibilities.

The Court held “it is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise her Majesty to prorogue Parliament five weeks from 9th – 12th September until 14th October.  We cannot speculate, in the absence of further evidence, upon what such reasons might have been.  It follows that the decision was unlawful.’

Remedy

One of the remedies sought was a declaration that the advice given to her Majesty was unlawful. The Court held that as Parliament was not prorogued then they could make a declaration to that effect. However, as Parliament is not prorogued it is for Parliament to determine next steps.  It was therefore the Court’s understanding that the Speaker of the House of Commons and Lord Speaker can take immediate steps to enable each House to meet as soon as possible in order to decide a way forward.  This step was subsequently taken and on 24 September 2019, the speaker announced that this would take effect from 11:30 am on 25 September 2019, which at the time of writing, has now taken place.

Lady Hale concluded the Judgment by stating that the Advocates General’s appeal in the case of Cherry was dismissed and that Mrs Miller’s appeal was allowed.

What’s next?

With Parliament having now resumed, having been defined as adjourned and not prorogued, it will be interesting to see the next steps and tactics the current government may deploy to reach their stated 31 October 2019 Exit Date.

Conversely, it will be interesting to note whether cross-party support, primarily against no deal, though one would suspect also against a rushed exit on 31 October 2019, will find momentum as well as what position the current speaker John Bercow will take, given his stated and looming resignation date.

We can conclude that uncertainty will inevitably continue in the short term and, given the apparent impasse between the negotiating positions of Her Majesty’s government and the European Union (notably on the issue of the Irish Backstop) that a 31 October 2019 date, would now appear more unlikely given this judgment, than had prorogation been allowed to stand. This is due to the BENN Bill which would seek to ensure that the Prime Minister requests a delay and extension of the Exit Date in the event no deal can be negotiated by 17 October 2019.

What remains to be seen is the impact that this will have on the current government and whether this will now help focus the minds in anticipation of Brexit on 31 October 2019, or whether further uncertainty will continue.

If you have any questions about the contents of this article or another legal matter, please do not hesitate to contact a member of the CG Team who will be happy to assist.

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