Wednesday, October 2, 2019

JUDGMENT R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) before Lady Hale, President Lord Reed, Deputy President Lord Kerr Lord Wilson Lord Carnwath Lord Hodge Lady Black Lord Lloyd-Jones Lady Arden Lord Kitchin Lord Sales JUDGMENT GIVEN ON 24 September 2019 Heard on 17, 18 and 19 September 2019

2019] UKSC 41 
On appeals from: [2019] EWHC 2381 (QB)
  
  
  
before 
  
Lady Hale, President 
Lord Reed, Deputy President 
Lord Kerr 
Lord Wilson 
Lord Carnwath 
Lord Hodge 
Lady Black 
Lord Lloyd-Jones 
Lady Arden 
Lord Kitchin 
Lord Sales 
  
  
JUDGMENT GIVEN ON 
  
24 September 2019 
  
Heard on 17, 18 and 19 September 2019 
  

Appellant 
(Gina Miller) 

Respondent 
(The Prime Minister) 
Lord Pannick QC

Sir James Eadie QC 
Tom Hickman QC

David Blundell
Warren Fitt

Christopher Knight


Richard Howell
(Instructed by Mishcon de Reya LLP (London))

(Instructed by The Government Legal Department) 


Appellant 
(The Advocate General) 

Respondents 
(Joanna Cherry MP and others) 
Lord Keen of Elie QC

Aidan O’Neill QC
Andrew Webster QC

David Welsh


Sam Fowles
(Instructed by Office of the Advocate General for Scotland) 

(Instructed by Balfour and Manson LLP (Edinburgh)) 


  

st Intervener 

  
James Wolffe QC, Lord Advocate


James Mure QC

  
Christine O’Neill

  
(Instructed by the Legal Department of the Scottish Government)
  
  
  
  
2nd Intervener 

  
Ronan Lavery QC 

  
Conan Fegan BL

  
Richard Smyth

  
(Instructed by McIvor Farrell Solicitors)
  
  
  
3rd Intervener 


Michael Fordham QC


Celia Rooney


Hollie Higgins


(Instructed by Welsh Government Legal Services Department) 


  

4th Intervener 


Lord Garnier QC


Tom Cleaver


Anna Hoffmann


(Instructed by Herbert Smith Freehills LLP (London))

  

5th Intervener 


Deok Joo Rhee QC


Catherine Dobson


(Instructed by Howe and Co)


  

6th Intervener 


Thomas de la Mare QC


Daniel Cashman


Alison Pickup


(Instructed by Public Law Project)


Interveners:- 
(1)        The Lord Advocate
(2)        Raymond McCord
(3)        Counsel General for Wales 
(4)        Sir John Major KG CH
(5)        Baroness Chakrabarti CBE, PC (written submissions only)
(6)        Public Law Project (written submissions only)

  




















·                     Choosing when to end the session - ie prorogue - was a balance between “wash up” - completing the Bills which were close to Royal Assent - and “not wasting time that could be used for new measures in a fresh session”. There were very few Bills suitable for “wash-up”, so this pointed to bringing the session to a close in September. Asking for prorogation to commence within the period 9th to 12th September was recommended. 
·                     To start the new session with a Queen’s Speech would be achievable in the week beginning 14th October but any earlier “is extremely pressured”. 
·                     Politically, it was essential that Parliament was sitting before and after the EU Council meeting (which is scheduled for 17th - 18th October). If the Queen’s Speech were on 14th October, the usual six-day debate would culminate in key votes on 21st and 22nd October. Parliament would have the opportunity to debate the Government’s overall approach to Brexit in the run up to the EU Council and then vote on it once the outcome of the Council was known. 
·                     It must be recognised that “prorogation, on its own and separate of a Queen’s Speech, has been portrayed as a potential tool to prevent MPs intervening prior to the UK’s departure from the EU on 31st October”. The dates proposed sought to provide reassurance by ensuring that Parliament would sit for three weeks before exit and that a maximum of seven days were lost apart from the time usually set aside for the conference recess. 
·                     The usual length of a prorogation was under ten days, though there had been longer ones. The present proposal would mean that Parliament stood prorogued for up to 34 calendar days but, given the conference recess, the number of sitting days lost would be far less than that. 
·                     The Prime Minister ticked “Yes” to the recommendation that his PPS approach the Palace with a request for prorogation to begin within the period Monday 9th September to Thursday 12th September and for a Queen’s Speech on Monday 14th October. 


(2)       So I don’t see anything especially shocking about this prorogation. 
(3)       As Nikki nots [sic], it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.” 


20.              We also have the Minutes of the Cabinet meeting held by conference call at 10.05 am on Wednesday 28th August, after the advice had been given. The Prime Minister explained that it was important that they were “brought up to speed” on the decisions which had been taken. It was also “important to emphasise that this decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations: it was about pursuing an exciting and dynamic legislative programme to take forward the Government’s agenda”. He also explained that the timetable did not conflict with the statutory responsibilities under the Northern Ireland (Executive Formation etc) Act 2019 (as it happens, the timetable for Parliamentary sittings laid down in section 3 of that Act requires that Parliament sit on 9th September and, on one interpretation, no later than 14th October). He acknowledged that the new timetable would impact on the sitting days available to pass the Northern Ireland Budget Bill and “potentially put at risk the ability to pass the necessary legislation relating to decision-making powers in a no deal scenario”. In discussion at the Cabinet meeting, among the points made was that “any messaging should emphasise that the plan for a Queen’s Speech was not intended to reduce parliamentary scrutiny or minimise Parliament’s opportunity to make clear its views on Brexit. … Any suggestion that the Government was using this as a tactic to frustrate Parliament should be rebutted.” In conclusion, the Prime Minister said that “there were no plans for an early General Election. This would not be right for the British people: they had faced an awful lot of electoral events in recent years”. 





24.              On 30th August, the Lord Ordinary, Lord Doherty, refused an application for an interim interdict to prevent the now very far from hypothetical prorogation and set the date of 3rd September for the substantive hearing: [2019] CSOH 68. On 4th September, he refused the petition, on the ground that the issue was not justiciable in a court of law: [2019] CSOH 70. The Inner House (Lord Carloway, Lord President, Lord Brodie and Lord Drummond Young) heard the appeal later that week, delivered their decision with a summary of their reasons on 11th September, and their full judgments were published on Friday, 13th September: [2019] CSIH 49. They allowed the appeal, holding that the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive, and that it and the prorogation which followed it were unlawful and thus null and of no effect. They gave permission to appeal to this court. 


(2)       If it is, by what standard is its lawfulness to be judged?
(3)       By that standard, was it lawful?
(4)       If it was not, what remedy should the court grant? 
Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?




32.              Two examples will suffice to illustrate the point. The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful. The court concluded at p 76 that “the King hath no prerogative, but that which the law of the land allows him”, indicating that the limits of prerogative powers were set by law and were determined by the courts. The later 18th century was another troubled period in our political history, when the Government was greatly concerned about seditious publications. That did not deter the courts from holding, in Entick v Carrington (1765) 19 State Tr 1029; 2 Wils KB 275, 95 ER 807, that the Secretary of State could not order searches of private property without authority conferred by an Act of Parliament or the common law. 
“No court would ever depreciate or call in question ministerial responsibility to Parliament. But as Professor Sir William Wade points out in Wade and Forsyth, Administrative Law, 7th ed (1994), p 34, ministerial responsibility is no substitute for judicial review. In R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644 Lord Diplock said: 
‘It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.’”

35.              Having made those introductory points, we turn to the question whether the issue raised by these appeals is justiciable. How is that question to be answered? In the case of prerogative powers, it is necessary to distinguish between two different issues. The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept. If authority is required, it can be found in the decision of the House of Lords in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review. In the Council of Civil Service Unions case, the House of Lords concluded that the answer to that question would depend on the nature and subject matter of the particular prerogative power being exercised. In that regard, Lord Roskill mentioned at p 418 the dissolution of Parliament as one of a number of powers whose exercise was in his view non-justiciable. 
36.              Counsel for the Prime Minister rely on that dictum in the present case, since the dissolution of Parliament under the prerogative, as was possible until the enactment of the Fixed-term Parliaments Act 2011, is in their submission analogous to prorogation. They submit that prorogation is in any event another example of what Lord Roskill described as “excluded categories”, and refer to later authority which treated questions of “high policy” as forming another such category ( R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] QB 811, 820). The court has heard careful and detailed submissions on this area of the law, and has been referred to many authorities. It is, however, important to understand that this argument only arises if the issue in these proceedings is properly characterised as one concerning the lawfulness of the exercise of a prerogative power within its lawful limits, rather than as one concerning the lawful limits of the power and whether they have been exceeded. As we have explained, no question of justiciability, whether by reason of subject matter or otherwise, can arise in relation to whether the law recognises the existence of a prerogative power, or in relation to its legal limits. Those are by definition questions of law. Under the separation of powers, it is the function of the courts to determine them. 




40.              The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law. We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority. Many more examples could be given. Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public ( Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ( Ex p Fire Brigades Union , pp 567-568). In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers. For example, they include the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation ( Burmah Oil Co Ltd v Lord Advocate [1965] AC 75). 
41.              Two fundamental principles of our constitutional law are relevant to the present case. The first is the principle of 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. However, the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples, in the Case of Proclamations the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in the case of Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508, the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative. More recently, in the Fire Brigades Union case, the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative, and was not deflected by the fact that the Government had failed to bring the statute into effect. As Lord Browne-Wilkinson observed in that case at p 552, “the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body”. 




46.              The same question arises in relation to a second constitutional principle, that of Parliamentary accountability, described by Lord Carnwath in his judgment in the first Miller case as no less fundamental to our constitution than Parliamentary sovereignty ( R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5[2018] AC 61, para 249). As Lord Bingham of Cornhill said in the case of Bobb v Manning [2006] UKPC 22, para 13, “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power. 
47.              The principle of Parliamentary accountability has been invoked time and again throughout the development of our constitutional and administrative law, as a justification for judicial restraint as part of a constitutional separation of powers (see, for example, R v Secretary of State for the Environment, Ex p Nottinghamshire County Council [1986] AC 240, 250), and as an explanation for non-justiciability ( Mohammed (Serdar) v Ministry of Defence [2017] UKSC 1[2017] AC 649, para 57). It was also an animating principle of some of the statutes mentioned in para 44, as appears from their references to the redress of grievances. As we have mentioned, its importance as a fundamental constitutional principle has also been recognised by the courts. 

49.              In answering that question, it is of some assistance to consider how the courts have dealt with situations where the exercise of a power conferred by statute, rather than one arising under the prerogative, was liable to affect the operation of a constitutional principle. The approach which they have adopted has concentrated on the effect of the exercise of the power upon the operation of the relevant constitutional principle. Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification. That approach can be seen, for example, in R (UNISON) v Lord Chancellor [2017] UKSC 51[2017] 3 WLR 409, paras 80-82 and 88-89, where earlier authorities were discussed. A prerogative power is, of course, different from a statutory power: since it is not derived from statute, its limitations cannot be derived from a process of statutory interpretation. However, a prerogative power is only effective to the extent that it is recognised by the common law: as was said in the Case of Proclamations , “the King hath no prerogative, but that which the law of the land allows him”. A prerogative power is therefore limited by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict. 

51.              That standard is one that can be applied in practice. The extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions and its supervision of the executive is a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts. The court then has to decide whether the Prime Minister’s explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation having those effects. The Prime Minister’s wish to end one session of Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary. Even in such a case, when considering the justification put forward, the court would have to bear in mind that the decision whether to advise the monarch to prorogue Parliament falls within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment. The court would therefore have to consider any justification that might be advanced with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution. Nevertheless, it is the court’s responsibility to determine whether the Prime Minster has remained within the legal limits of the power. If not, the final question will be whether the consequences are sufficiently serious to call for the court’s intervention. 












60.              Nor does the Memorandum from Nikki da Costa outlined in para 17 above suggest that the Government needed five weeks to put together its legislative agenda. The memorandum has much to say about a new session and Queen’s Speech but nothing about why so long was needed to prepare for it. The only reason given for starting so soon was that “wash up” could be concluded within a few days. But that was totally to ignore whatever else Parliament might have wanted to do during the four weeks it might normally have had before a prorogation. The proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th - 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business. It does not discuss what Parliamentary time would be needed to approve any new withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018 and enact the necessary primary and delegated legislation. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day and achieve an orderly withdrawal with or without a withdrawal agreement, which are laid down in the European Union (Withdrawal) Act 2018. Scrutiny committees in both the House of Commons and the House of Lords play a vital role in this. There is also consultation with the Scottish Parliament and the Welsh Assembly. Perhaps most tellingly of all, the memorandum does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same. The Prime Minister’s reaction was to describe the September sitting as a “rigmarole”. Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above. 






The equivalent provision in the Claim of Right of 1689, an Act of the Parliament of Scotland, is this:
“That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members.”

65.              The first point to note is that these are Acts of Parliament. It is one of the principal roles of the courts to interpret Acts of Parliament. A recent example of this Court interpreting article 9 is R v Chaytor [2010] UKSC 52[2011] 1 AC 684. The case concerned the prosecution of several Members of Parliament for allegedly making false expenses claims. They resisted this on the ground that those claims were “proceedings in Parliament” which ought not to be “impeached or questioned” in any court outside Parliament. An enlarged panel of nine Justices held unanimously that MPs’ expenses claims were not “proceedings in Parliament” nor were they in the exclusive cognisance of Parliament. There is a very full discussion of the authorities in the judgments of Lord Phillips of Worth Matravers and Lord Rodger of Earlsferry which need not be repeated here.