Brexit: Analysis of Miller and Cherry in Supreme Court

R (Miller/Cherry) v The Prime Minister [2019] UKSC 41 (24 September 2019) 

These proceedings concerned a “one-off” issue arising in circumstances unseen in history and unlikely to arise again. The Supreme Court was cautious to emphasise at the outset that these proceedings did not concern the terms on which the UK is to leave the EU and they only related to whether the advice given by Boris Johnson to the Queen was lawful, and any legal consequences if he misled her, when he had advised Her Majesty on 27 or 28 August 2019 that Parliament should be prorogued from a date between 9 and 12 September until 14 October. In the minds of the pro-Brexit lobby, the outcome prevented Boris Johnson’s despotic dream of proroguing Parliament to force the UK’s exit from the EU by 31 October 2019 by hook or by crook. The court unanimously held that the decision to advise Her Majesty to prorogue Parliament was unlawful because it produced the bad effect of frustrating or preventing Parliament’s ability to carry out its constitutional functions without reasonable justification. The issues for the Supreme Court were (i) is the question of whether the PM’s advice to the Queen was lawful justiciable in a court of law? (ii) if it is, by what standard is its lawfulness to be judged? (iii) by that standard, was it lawful? (iv) if it was not, what remedy should the court grant? In the Scottish Cherry proceedings, Lord Doherty, refused an application for an interim interdict to prevent prorogation. 

Then in the substantive hearing he refused the petition because he found that the issue was not justiciable in a court of law. Thereafter, Lords Carloway, Brodie and Drummond Young allowed the appeal and held that the advice given to Her Majesty was justiciable because it was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive and that the advice and the prorogation which followed it were unlawful and thus null and of no effect. The petitioners in the Scottish judicial review cases were MPs and others challenging the executive’s actions to silence Parliament to achieve its political designs. In English proceedings, at first instance the Divisional Court dismissed Mrs Gina Miller’s claim on the ground that the issue was not justiciable (Sir John Major and others intervening). The Supreme Court overturned the Divisional Court’s negative judgment (Lord Burnett of Maldon LCJ, Sir Terence Etherton MR and Dame Victoria Sharp PQBD) and its 11 Justices were instantaneously denounced as enemies of the people in a rerun of the attack on the judiciary which was made by the pro-Brexit lobby when the Divisional Court held in 2016 that triggering article 50 without legislation was unlawful. 

Strikingly even those Justices who dissented in the first Miller case gave judgment against the Government but upon returning to Parliament, an unrepentant Boris Johnson mocked the apex court’s judgment by comparing it to cowardice and surrender. Johnson also used provocative language that undermined the safety of MPs. 

Background

Prorogation is a prerogative power, which can be distinguished from dissolution, and the Sovereign decides to prorogue Parliament (on the formal advice of the Prime Minister and the Privy Council) with the effect that prorogation brings to an end all proceedings in both Houses for the current session. The conversation/advice between the Queen and the Prime Minister was unknown and the public and the court did not know what the Queen was told. Once a prerogative power of the Crown but presently governed by the Fixed-term Parliaments Act 2011, the dissolution of Parliament brings the current Parliament to an end and Members of the House of Commons cease to be Members of Parliament and a  new House of Commons is elected after a general election. Prorogation is also distinct from the House adjourning or going into recess which is decided by each House passing a motion rather than the Crown acting on the Prime Minister’s advice. 

Boris Johnson accepted (by ticking “yes”) to a recommendation made by Nikki da Costa, Director of Legislative Affairs on 15 August 2019 that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin within 9 to 12 September and for a Queen’s Speech on 14 October. On 28 August a meeting of the Privy Council was held by the Queen at Balmoral Castle. An Order in Council was made that Parliament be prorogued between those dates and that the Lord Chancellor prepare/issue a commission for proroguing Parliament accordingly. A conference call cabinet meeting followed in order to bring the rest of the Cabinet “up to speed” on this decision-making. The decision was publicly announced the same day and the Prime Minister sent an explanatory letter to all Members of Parliament. The English Miller proceedings followed immediately. 

The House of Commons also passed the European Union (Withdrawal) (No.2) Act 2019 or the Benn Act so as to prevent the UK leaving the EU without a withdrawal agreement on 31 October. Given the immense importance of these cases a panel of 11 Justices, the maximum number of serving Justices who are permitted to sit, heard the matter and gave their unanimous judgment against Boris Johnson (who in his hand-written notes on Nikki da Costa’s memorandum, had described Parliament’s sitting as “rigmarole” and called his old friend David Cameron a “girly swot”). 

The Supreme Court

The Supreme Court unanimously overturned the Divisional Court’s judgment.

(i) Justiciability 

The court answered the first question in the affirmative to hold that the lawfulness of the Prime Minister’s advice to Her Majesty was justiciable and it said that while the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. The Divisional Court observed almost all important decisions made by the executive have a political hue to them. The courts have nevertheless exercised a supervisory jurisdiction over the decisions of the executive for centuries. 

In the Case of Proclamations (1611) 12 Co Rep 74 political controversy did not prevent the law courts from holding that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful as “the King hath no prerogative, but that which the law of the land allows him”, showing that the limits of prerogative powers were set by law and were determined by the courts. In Entick v Carrington (1765) 95 ER 807, at a time when the government was greatly concerned about seditious publications, it was held that the executive could not order searches of private property without authority conferred by an Act of Parliament or the common law. In Fire Brigades Union [1995] 2 AC 513, Lord Lloyd of Berwick had held that ministers are “responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.” 

Two different questions must be distinguished between in the case of prerogative powers (a) whether a prerogative power exists and if so its extent, and (b) whether the exercise of that power, within its limits, is open to legal challenge. The first question lies within the jurisdiction of the courts and is justiciable under the authority of CCSU [1985] AC 374. The second question is a function of what the power is all about, some powers are not amenable to judicial review while others are. Undoubtedly, and as admitted by all the parties, the courts of law have jurisdiction to decide upon the existence and limits of a prerogative power (and the Supreme Court concluded that these proceedings concerned the limits of the power to advise Her Majesty to prorogue Parliament). 

Prior to ruling on the issue of justiciability it was necessary for the court to judge whether these proceedings required it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether Johnson’s advice exceeded that limit, or whether these proceedings concerned the lawfulness of a particular exercise of the power within its legal limits. This question was closely bound up with the identification of the standard by reference to which the lawfulness of Johnson’s advice was to be judged.

(ii) Standard 

On the second question of by what standard the lawfulness of the advice is to be judged, the court opined that the second question was anchored in the limits to the power to prorogue.  Invoking De Keyser’s Royal Hotel Ltd [1920] AC 508 in addition to the Fire Brigades Union case the Supreme Court held that: 

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.

In Miller [2017] UKSC 5 Lord Carnwath said that Parliamentary accountability is no less fundamental to the UK’s constitution than Parliamentary sovereignty. In Fire Brigades Union it was Lord Browne-Wilkinson’s view that the constitutional history of the UK “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.” 

In Bobb v Manning [2006] UKPC 22, Lord Bingham said “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. Parliament expects accountability from ministers and it is their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. These methods ensure that the policies of the executive are subjected to consideration by the representatives of the electorate. 

The executive must report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power. The court noted that although the principle of Parliamentary accountability has been invoked repeatedly throughout the development of the UK’s constitutional and administrative law (as a justification for judicial restraint as part of a constitutional separation of powers, Nottinghamshire County Council [1986] AC 240, and as an explanation for non-justiciability Mohammed [2017] UKSC 1) and it made the following observation in the circumstances: 

48. … That principle is not placed in jeopardy if Parliament stands prorogued for the short period which is customary, and as we have explained, Parliament does not in any event expect to be in permanent session. But the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model. 

As in the case of Parliamentary sovereignty, the question related to the extent of the legal limit upon the power to prorogue which makes it compatible with Parliament’s ability to carry out its constitutional functions. The Justices pointed out in light of UNISON [2017] UKSC 5  that 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/frustrates the operation of the relevant principle must have a reasonable justification. The court held:

49. … 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.

50. For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: 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.

In judging any justification which might be put forward the court must take a sensitive approach to the Prime Minister’s responsibilities and overall experience, proceeding with appropriate caution. If the prorogation does indeed produce that effect, without reasonable justification, no need arose for the court to consider whether the Prime Minister’s motive or purpose was unlawful. 

(iii) Conclusions on justiciability

The Supreme Court was firmly of the opinion that the key question of whether the Prime Minister’s advice to the Queen was lawful was indeed justiciable. Overall, even the Prime Minister’s counsel did not resist the argument that the courts can rule on the extent of prerogative powers and the Supreme Court did just this in these proceedings by applying the apposite legal standard. The standard was unconcerned with the mode of exercise of the prerogative power within its lawful limits. The standard determined the limits of the power, demarcating the boundary between prerogative power and the operation of the constitutional principles of the sovereignty of Parliament and responsible government. Thus the court said that an issue that is resolvable by the application of that standard is one concerning the extent of the power to prorogue and is therefore justiciable.

(iv) Lawfulness of advice 

As to the legality of the advice the Justices began their analysis by noting that the UK is a “representative democracy” and Parliament owes its existence to being elected by the people of the UK rather than the government being directly elected by the people. 

The starting point, or the first question, therefore was whether Boris Johnson’s behaviour produced the effect of frustrating or preventing the constitutional role of Parliament in holding the government to account. There was no doubt that it did as the prorogation was not normal in the run-up to a Queen’s Speech because it stopped Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the (then) 31 October 2019. The whole situation of the UK was extraordinary and Boris Johnson had deliberately stopped MPs from performing their function of holding the government to account by way of prorogation. The court’s final answer was therefore unequivocal: 

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, from 9 or 12 September until 14 October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

The court opined that the executive owes its existence to the confidence of the House of Commons and it has democratic legitimacy outside of this framework and government is accountable to the House of Commons (the House of Lords) for its actions, constantly bearing in mind that the real job of governing is for the executive and not for Parliament or the courts. Neither House can meet, debate or pass legislation while Parliament is prorogued. Neither House can debate government policy and members cannot ask written or oral questions of ministers or meet and take evidence in committees. To restart things also causes bills in their final stages to be initiated from scratch. By contrast, during a recess, the House does not sit but Parliamentary business can continue. Boris Johnson’s  prolonged suspension of Parliamentary democracy occurred in exceptional circumstances where fundamental change was scheduled to take place in the UK constitution. In that light Parliament, especially the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about because the overall effect upon the fundamentals of the UK’s democracy was profound.

The motive driving Boris Johnson was irrelevant in the court’s analysis and it found that there was no reasonable justification for taking action which had such an extreme effect upon the fundamentals of the UK’s democracy. The length of time to prorogue was not proportionate with the aim of a Queen’s Speech which on the unchallenged evidence of Sir John Major varies according to the size of the programme, but a typical length of time is four to six days and that no government has ever needed as five weeks to put together its legislative agenda. 

However, Nikki da Costa’s memorandum about the desirability of opening a new session of Parliament failed to explain why it was necessary to stop Parliamentary business for five weeks when the normal period needed to prepare for the Queen’s Speech is four to six days. Nikki da Costa failed to address the difference between prorogation and recess, nor did it consider the overall consequences of prorogation on the special procedures for scrutinising the delegated legislation needed to achieve the UK’s orderly withdrawal from the EU, deal or no deal, on 31 October 2019. 

No consideration had been provided to how much Parliamentary time would be needed to obtain Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018. Hence the court had no alternative but to conclude that Boris Johnson’ dirty tactics to advise the Queen to prorogue Parliament was unlawful as it resulted in frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. Johnson’s behaviour was self-promoting and violated the constitutional responsibilities of his office. 

(v) Remedy 

On the final question of remedies, the court was in a position to declare that the advice was unlawful and the Inner House had indeed gone further by declaring that any prorogation resulting from it was null and of no effect. The Supreme Court rejected the government’s misconceived point that the Inner House had been wrong because the prorogation was a “proceeding in Parliament” which, under article 9 of the Bill of Rights of 1688 cannot be impugned or questioned in any court. The prorogation is not a proceeding in Parliament because it takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been externally imposed, i.e. it is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Conversely, it brings that core or essential business to an end. Citing UNISON [2017] UKSC 51 the Justices held that: 

69. This court is not, therefore, precluded by article 9 or by any wider Parliamentary privilege from considering the validity of the prorogation itself. The logical approach to that question is to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

Thus Parliament had not been prorogued and declarations were made to that effect and the court expected the Prime Minister “take all necessary steps to comply with the terms of any declaration made by the court” (as he had pledged). However, it was for Parliament, especially the Speaker and the Lord Speaker, to decide what to do next. The Supreme Court dismissed the Advocate General’s appeal the Cherry proceedings and allowed the appeal in the Miller proceedings and made the same declarations and orders in each case.

Comment 

Sir John Major thinks that it is a “colossal mistake” to leave the EU and that the UK will rejoin at a late date. In the aftermath of the judgment, Lord Sumption, who sat on the first Miller case, opined that the apex court’s decision is both revolutionary and conservative. Revolutionary because it sets up a new approach previously untraceable in the decided authorities and conservative because it does not go beyond saying that Boris Johnson’s advice to Her Majesty was unlawful, void and of no effect. His position contradicted his earlier view that Mrs Miller would fail in her quest for justice because because the issue concerned non-legally binding political conventions: it was not in his view a question of law. Although Lord Sumption did not conclude that this judgment was about politics he did advise us that the predicament that the UK presently finds itself in has arisen because of the “misguided attempt to insert a referendum into a parliamentary system.” The ruling places the courts as the ultimate arbiters for political reasoning because this is necessary. 

Ultimately the EU referendum was a snapshot of political opinion and is important for the politicians. The misuse of prerogative power to stop the executive’s accountability to Parliament was an act of “political vandalism” and its result has been that constitutional “conventions have hardened into law”. The judgment is not political itself, however it restores Parliament at the heart of the process under which the political issues of Brexit are to be settled. The judgment prevented the government from doing as it pleased and the Supreme Court ensured that the country was not left in a state where it was governed “neither by convention nor law”. 

Lord Sumption’s conclusion is that the British constitution does not allow the 52 per cent to “carry off all the spoils” without engaging with the 48 per cent through the medium of Parliament. Now that a General Election will be held on 12 December 2019 we shall see who will carry off the spoils of the deep divisions in UK society over Brexit, immigration, public security, national health etc. We can only hope that the electorate will refuse to vote in favour of the lies and hatred that people such as Boris Johnson have used as a means to divide the UK in their quest to accomplish Brexit at any cost.

During this hearing court was keen to stress that these proceedings have nothing to do with the political implications of the UK leaving the EU. Indeed Lord Wilson cautioned Mr Lavery QC, who highlighted all the terrible things that a no deal Brexit would bring, not to “abuse our politeness” and not to “abuse Lady Hale’s politeness” and Mr Lavery ended his submissions early to respect the hard position that the court was placed in.

However, despite all that was said and done, politicians attacked the judges for harbouring biases against Brexit. Brainwashed people naturally see this judgment as stopping Brexit on Halloween, but Sir Stephen Sedley summed up the result by concluding: “The Supreme Court, as much by its unanimity (in Gina Miller’s first case in January 2017 it was divided 8-3) as by its reasoning, has re-lit one of the lamps of the United Kingdom’s constitution: that nobody, not even the Crown’s ministers, is above the law.” Reflecting on her time at the University of Cambridge, Lady Hale apparently stated “I was a girly swot and there were quite a few young men who were, similarly, girly swots: they wanted to get on with their work and their lives.” Her Ladyship’s sound advice to young women is “Don’t let the bastards grind you down.”