This blog looks at the reasons for the UK Supreme Court deciding that the prorogation of the UK Parliament was “unlawful, null and of no effect” (paragraph 69). It follows on from the SPICe blog on the reasons for the Court of Session’s decision in the same case.
The Supreme Court looked at two linked cases – Cherry and others, on appeal from the Scottish Court of Session and Miller and others, on appeal from the High Court of England and Wales. Several other parties intervened to give the court their views, including former Prime Minister John Major and Northern Ireland victims’ rights campaigner Raymond McCord.
The court’s decision was unanimous, and its reasons delivered as one judgment. It was reached by 11 justices – the largest number it is possible to convene to consider a case. These factors make it a powerful statement of the law in this area.
- Prerogative powers – the residual powers of the Crown, which are usually exercised by UK Government Ministers. Some prerogative powers – including the power to prorogue Parliament – may be exercised by the monarch personally, on the advice of Ministers.
- Jurisdiction – a court is said to have jurisdiction where it has authority to hear and determine a legal dispute.
- Judicial review – a form of court procedure which allows the decisions of public bodies to be challenged on the basis they were unlawful, unfair or irrational.
So, on what basis was this historic decision reached?
Is the question of whether the advice to prorogue was lawful justiciable in court?
The matter of justiciability – whether an issue can be dealt with by the courts – was a key point of contention in the judgments appealed to the Supreme Court.
The High Court of England and Wales had held that the advice to prorogue was non-justiciable – it was a matter for politics not the courts. However, the Court of Session in Scotland had found differently. It held that the question of whether the power to prorogue had been used for an improper purpose was reviewable by the courts.
The Supreme Court decided that whether a prerogative power exists and – if it does, what the limits to that power are – are both matters which fall firmly into the jurisdiction of the courts.
It noted that deciding on such questions did not blur the boundaries between the roles of the courts, the Government and Parliament. The courts were performing their proper constitutional function in determining the law in this area. That a case involved political considerations – or that the Government was answerable to Parliament for its actions – were not facts which, of themselves, prevented there being legal accountability too.
The court considered that judicial review of the use of a prerogative power, exercised within its legal limits, may not be justiciable. However, the court concluded that this was not a subject it needed to consider further. The present case could be decided by determining what the legal limits of the power in question were, not how it had been used.
What standard should be applied to deciding the limits of the prerogative power to prorogue?
The court formulated a standard based on its consideration of constitutional principles. It noted two principles of particular importance here:
- Parliamentary sovereignty – “that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply” (paragraph 41).
- Parliamentary accountability – that Ministers are collectively responsible and accountable for their actions to Parliament, as the representatives of the electorate.
It concluded that the relevant limit to the power to prorogue was as follows (paragraph 50):
“that a decision to prorogue Parliament (or to advise the monarch 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 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.”
Did the Prime Minister’s advice breach this standard?
The court concluded that the Prime Minister’s advice had the effect of preventing the UK Parliament from carrying out its constitutional role for a significant period of time at a crucial point in the UK’s history. It then looked for a reasonable justification for this position. However, it found nothing in the documents presented by the UK Government which provided this.
Its finding was that (paragraph 61):
“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 for five weeks.”
The Supreme Court has placed the ball firmly in the UK Parliament’s court. As the decision to prorogue is null and of no effect, there is no need for any further action before Parliament can be recalled.
In a statement, the Speaker of the House of Commons said that the House must “convene without delay”, and it was confirmed that the UK Parliament will sit today, (25 September 2019). Any legislation which was live in the 2017 session will remain live. The practical effect of the court’s judgment is that the prorogation did not happen.
The Prime Minister has stated he will respect the court’s ruling, although he “strongly disagrees” with it.
The full text of the Supreme Court’s judgment is available on its website.
Abigail Bremner, SPICe researcher civil justice