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R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)  UKSC 41
Keywords: Brexit, Prorogation, Constitutional Law
This case concerns the conglomeration of two appeals, one from the High Court of England and Wales and one from the Inner House of the Court of Session in Scotland.
The Scottish case was brought on 30th July because of their concern that Parliament might be prorogued to avoid further debate in the lead up to exit day on 31st October. On 15th August, a memorandum was sent to the Prime Minister recommending that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin within 9th to 12th September and for a Queen’s Speech on 14th October to which Prime Minister ticked ‘yes’.
On 27th or 28th August he formally advised Her Majesty to prorogue Parliament between those dates. After a Privy Council held by the Queen at Balmoral Castle, an Order in Council was made that Parliament be prorogued between those dates. As soon as the decision was announced, Mrs Miller began the English proceedings challenging its lawfulness.
On 11th September, the High Court of England and Wales delivered judgment dismissing Mrs Miller’s claim finding the issue not justiciable. The Inner House of the Court of Session in Scotland announced that the issue was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the Government, and that it, and any prorogation which followed it, were unlawful and thus void and of no effect. Mrs Miller’s appeal against the English decision and the Advocate General’s appeal against the Scottish decision were heard by this court from 17th to 19th September.
- Was the lawfulness of the Prime Minister’s advice to the Queen justiciable?
- What are the limits to the power to advise the Queen to prorogue Parliament?
- Did this prorogation have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification?
It was held, on the first issue for consideration, that there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries, as long ago as 1611. The lawfulness of the Prime Minister’s advice to the Queen was therefore determined justiciable.
It was ruled that the power to prorogue is limited by the constitutional principles with which it would otherwise conflict. The limit on the power to prorogue is that a decision to prorogue (or advising the monarch to prorogue) 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 supervising the executive.
In light of the third issue, it was ruled that this was not a normal prorogation in the run-up to a Queen’s Speech; it prevented Parliament from carrying out its constitutional role between the end of the summer recess and the Brexit deadline on 31st October. While prorogued, it was stated, neither House could meet or pass legislation, or debate Government policy. The exceptional circumstances of the prorogation were also considered, in that it took place during a time of fundamental change to the UK constitution with the 31st October exit day. It was ruled that Parliament had a right to a voice in how that change comes about. No justification for taking the action of prorogation in this instance was given before the Court. In light of this, the Court concluded 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.
Argument was advanced by the Government claiming that the Inner House could not declare that any prorogation resulting from the advice was of not effect because the prorogation was a “proceeding in Parliament” which, under the Bill of Rights of 1688 cannot be impugned or questioned in any court; however, the Court ruled that the prorogation is not a proceeding in Parliament. Rather, it is something which has been imposed upon them from outside, not being something which members of Parliament can speak or vote on.
In conclusion, it was ruled that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect allowing Parliament to reconvene.
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