Categories
Politics

Supreme Court – Prorogation Decision

The Supreme Court has come to a decision regarding the question of whether the recent prorogation of Parliament was lawful or unlawful.

Background

This follows the decision during the Joanna Cherry Judicial Review in the Scottish Court of Session held on 3 Sep 2019 which decided that the PM’s advice on prorogation was, as a matter of high policy and political judgement, non-justiciable.

Opinion of Lord Doherty (pdf)

This decision was appealed and the Inner House of the Court of Session ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

The Government appealed this decision to the Supreme Court.

Details of the decision are available in the document published on 11 September:

Opinion of Lord Carloway, The Lord President in the reclaiming motion by Joanna Cherry QC MP and others (pdf)

and is summarised in my article

Joanna Cherry Judicial Review Appeal

Mention is made in the full written decision that

The prospect of prorogation in the context of the Parliamentary procedures involving the UK’s withdrawal from the EU (commonly called “Brexit”) was first ventilated in the House of Commons as early as March 2019 as a method of circumventing the rule that the withdrawal agreement could not be the subject of a third vote during the same Parliamentary session.

implying that Theresa May’s Withdrawal Agreement with the EU cannot be brought back for further vote in the same Parliamentary session, and can only be voted on again in a new session, following prorogation or dissolution of Parliament.

A separate case, held in the High Court of England and Wales handed down its judgment on the same issue and came to the opposite conclusion.

The High Court heard a challenge to prorogation brought by Gina Miller on 5 September 2019, supported by a number of interveners. The matter was heard by a heavyweight bench, comprising the Lord Chief Justice Lord Burnett, Sir Terence Etherton, Master of the Rolls, and Dame Victoria Sharp, President of the Queen’s Bench Division.

R (Miller) and others v The Prime Minister [2019] EWHC 2381 (QB) (pdf)

We concluded that the decision of the Prime Minister was not justiciable. It is not a matter for the courts

In this case, the claim for judicial review was accordingly dismissed, but with permission granted to appeal directly to the Supreme Court.

Supreme Court Judgement

The Supreme Court heard submissions in both cases with 11 justices sitting over 3 days 19-21 September 2019 and the written judgement was released on 24 September 2019.

The Supreme Court – Case Details

Lady Hale (President), Lord Reed (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales were sitting in this case.

A Summary of the Judgement was published, together with the Full Written Judgement on 24 September 2019. The judgment is the unanimous judgment of all 11 Justices, determines that the PMs advice was unlawful and thus that the prorogation never happened.

Summary Judgement (pdf)

Extracts from the Summary Judgement

The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is.

This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.

….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.

and considering remedies

This Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.

It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is some Parliamentary rule of which we are unaware, they can take immediate steps to enable each House to meet as soon as possible. It is not clear to us that any step is needed from the Prime Minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.

It follows that the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is allowed. The same declarations and orders should be made in each case.

The full judgement is available at

Full Written Judgement

Parliament Resumes

Following the decision of the Supreme Court, John Bercow instructed MPs to return to Parliament on Wednesday 25 September 2019.

In the light of that explicit judgment, I have instructed the House authorities to prepare not for the recall – the prorogation was unlawful and is void – to prepare for the resumption of the business of the House of Commons.

Specifically I have instructed the House authorities to undertake such steps as are necessary to ensure that the House of Commons sits tomorrow, that it does so at 11.30am.

Categories
Government Legal Politics

Joanna Cherry Judicial Review Appeal

At an initial hearing in the Scottish Court of Session held on 3 Sep 2019, a petition for Judicial Review was dismissed by Lord Doherty finding that the PM’s advice on prorogation was, as a matter of high policy and political judgement, non-justiciable. There were no legal standards by which the courts could assess the decision. Even if this was wrong, Lord Doherty added, he was not persuaded, on what he had seen, that the reasons for the advice were unlawful.

The appeal to this decision was heard on 5-6 September and a summary of the appeal was released on 11 September.

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

This is a summary of the opinions of the court, which have been issued in draft form to the parties in light of the urgency of the case. This summary is provided to assist in understanding the court’s judgment. It does not form part of the reasons for the decision. The full opinion of the court is the only authoritative document.

The full opinions will be available on the Scottish Courts and Tribunals website at 12 noon on Friday 13 September 2019.

http://www.scotland-judiciary.org.uk/9/2261/Joanna-Cherry-QC-MP-and-others-for-Judicial-Review

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action. The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The decision has been appealed by the Government to the Supreme Court which is due to be heard on 17 September 2019, together with an appeal by Miller et al on the decision in the case of Miller v The Prime Minister held on 5 September.

Associated articles

https://ukhumanrightsblog.com/2019/09/11/a-tale-of-two-judgments-scottish-court-of-session-rules-prorogation-of-parliament-unlawful-but-high-court-of-england-and-wales-begs-to-differ/

https://theweeflea.com/2019/09/12/heroes-of-the-people-the-politicisation-of-the-judiciary/

Categories
Brexit

Process to invoke Article 50

Although it would seem that the process for invoking Article 50 should be straightforward, a legal case was initiated to determine whether the Government can use Royal Prerogative Powers to start the process of leaving the EU.

Gina Miller engaged the City law firm Mishcon de Reya to challenge the authority of the British Government to invoke Article 50 of the Treaty on European Union using prerogative powers, arguing that only Parliament can take away rights that Parliament has granted.

After a hearing on 03 November 2016, the High Court of Justice ruled that Theresa May cannot use the Royal Prerogative Powers to invoke Article 50 and begin the process for withdrawal from the EU and she needs prior Parliamentary approval.

Judgement: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/r-miller-v-secretary-of-state-for-exiting-eu-amended-20161122.pdf

Summary: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

(LOCAL COPIES)

The Government decided to appeal the High Court’s decision and took the appeal directly to the Supreme Court.

The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

https://www.supremecourt.uk

The appeal hearing was held from 5-8 December 2016 with the decision to be issued in January 2017.

Details of the case and proceedings can be found at

https://www.supremecourt.uk/news/article-50-brexit-appeal.html

The judgement by the Supreme Court was issued on 24 Jan 2017. The Secretary of State’s appeal was dismissed by a majority of 8-3. In a joint judgement of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.

The judgement documents are available at:

Judgement : https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

Summary: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-press-summary.pdf

(LOCAL COPIES)

A useful article, interpreting details of the judgement by Robert Craig: Miller Supreme Court Case Summary can be found at

https://ukconstitutionallaw.org/2017/01/26/robert-craig-miller-supreme-court-case-summary/

The Supreme Court decided that the Government is not obliged to consult with the UK’s devolved assemblies before triggering Article 50 and also ruled that once Article 50 is triggered, it cannot be reversed.

The form that the legislation should take was not defined and is entirely a matter for Parliament but Parliament will need to pass a new bill that gives Government the authority to trigger Article 50.

A statement, following the ruling, from Number 10 added :

The British people voted to leave the EU, and the Government will deliver on their verdict – triggering Article 50, as planned, by the end of March. Today’s ruling does nothing to change that.

It’s important to remember that Parliament backed the referendum by a margin of six to one and has already indicated its support for getting on with the process of exit to the timetable we have set out.

We respect the Supreme Court’s decision, and will set out our next steps to Parliament shortly.

Opposition leader Jeremy Corbyn reacted to the judgment by saying that his party will not seek to frustrate the will of the British people, but did say that “Labour will seek to amend the Article 50 Bill to prevent Conservatives using Brexit to turn Britain into a bargain basement tax haven.”