R Gina Miller v The Prime Minister

Hearing date: 5 September 2019

The Lord Burnett of Maldon CJ, Sir Terence Etherton MR,

On Wednesday 28 August 2019 at a Privy Council held at the Court at Balmoral Her Majesty ordered that Parliament should be prorogued from a date between 9 and 12 September until 14 October 2019. The order was made on the advice of the Prime Minister. These proceedings were started later the same day. The main issue we have to decide is whether the decision of the Prime Minister to seek the prorogation of Parliament is justiciable (is capable of challenge) in Her Majesty's courts or whether it is an exclusively political matter. We heard argument on Thursday 5 September and the following morning gave our decision. We concluded that the decision of the Prime Minister was not justiciable. It is not a matter for the courts. In formal terms we granted permission to apply for judicial review but dismissed the claim. We acceded to an application that any appeal from our order could leap-frog to the Supreme Court pursuant to section 12(3A)(c) of the Administration of Justice Act 1969 should leave to appeal be granted.

Parallel proceedings were progressing in Scotland. They had been issued long before the order to prorogue Parliament had been made in the context of a growing concern that the Prime Minister might secure prorogation either side of the date appointed by statute for the departure of the United Kingdom from the European Union, currently 31 October 2019. Their focus changed following the prorogation order. On Wednesday 4 September Lord Doherty sitting in the Outer House of the Court of Session dismissed the claim. He too concluded that this was not a matter for the courts. An appeal is proceeding in the Inner House of the Court of Session. We have had the advantage of reading Lord Doherty's judgment.

We heard oral argument from Lord Pannick QC for the claimant and Sir James Eadie QC for the Prime Minister. In the week between the commencement of these proceedings and the hearing we received a large number of applications from individuals and bodies to intervene or be joined as claimants. Many came too late to enable the parties to deal with any submissions within the very tight timetable to which we were operating. We took steps to ensure that the Lord Speaker and Speaker were notified of the proceedings but, entirely understandably, neither chose to place submissions before the court. We acceded to four applications to intervene in writing: from the Shadow Attorney General on behalf of the Official Opposition; from The Rt Hon Sir John Major KG CH, who was Prime Minister between 1990 and 1997; from the Counsel General for Wales on behalf of the Welsh Government; and from the Lord Advocate on behalf of the Scottish Government. All supported the claimant. We have been assisted by the written materials provided. We record our thanks to all those representing both the parties and the interveners for the assistance we have been given and acknowledge the pressure under which they have worked over the last few days.

Prorogation

A decision to prorogue Parliament is made by the Sovereign formally on the advice of the Privy Council but in reality on the advice of the Prime Minister. It is a prerogative power. By constitutional convention the Sovereign invariably acts on the advice of the Prime Minister. Parliament is prorogued between sessions. The new session begins with a Queen's Speech which sets out the Government's legislative agenda. There is no fixed duration for a session of Parliament although as a matter of recent practice each session usually lasts about a year. As it happens, the current session of Parliament has lasted since 21 June 2017, over two years. Prorogation brings to an end all proceedings in both Houses for the current session. Practical arrangements exist for some pending legislation to be carried over into the next session so that it does not have to start again and before prorogation there is usually a “wash-up” period to enable the passage of bills approaching completion of parliamentary stages. All business of both Houses is immediately suspended upon prorogation and does not recommence until the new session starts with a State Opening of Parliament. Amongst the consequences of prorogation are that no legislation may be discussed or passed, no questions asked of ministers and select committees do not continue to function. For practical purposes, Parliament ceases to operate whilst it stands prorogued.

Prorogation is different from dissolution. Parliament is dissolved pending a general election. Until recently, dissolution was a matter for the Prime Minister of the day who would ask the Sovereign to dissolve Parliament. Constitutional experts, for example the late Professor R. V. Heuston, consider that the Queen retains a personal discretion both to refuse a Prime Minister's request for a dissolution and to dissolve Parliament without a request. But in modern times the reality invariably has been that when asked to dissolve Parliament the Sovereign has agreed. This too was an example of the exercise of the Royal Prerogative, but Parliament legislated in the Fixed-term Parliaments Act 2011 to prescribe exhaustively the circumstances in which a general election may be called. Section 6 of that Act preserved unaltered the prerogative power to prorogue Parliament.

Prorogation should also be contrasted with the adjournment of either or both Houses during a session, including for a recess. That is commonplace. Either House can, if it chooses, sit without interruption. But both Houses adjourn from day to day whilst they are sitting and from one week to another. They also may, and customarily do, adjourn for much longer periods. Those include, for example, over Christmas and the New Year, Easter and Whitsun and over the summer. Parliament adjourned on 25 July 2019 for its summer recess and reassembled on Tuesday 3 September. It has been customary for Parliament to go into recess for a period to coincide with party conferences, usually about three weeks. The House of Commons briefing paper on the Brexit Timeline (No 7960 13 August 2019) includes in its future timetable a period from mid-September to early October for party conferences, but that would be a matter for decision by both Houses. Whilst standing adjourned or in recess the business of Parliament continues to some extent. In particular, select committees continue with their investigations and may direct inquiries to ministers and written questions may be asked of ministers.

Statutory References to Prorogation

There are statutory references to prorogation other than in the Fixed-term Parliaments Act 2011. The Succession to the Crown Act 1707 was concerned with ensuring that Queen Anne would be succeeded on the throne by a Protestant. It expressly preserved the power of the Queen and her heirs and successors to prorogue Parliament. The Meeting of Parliament Act 1797 empowered the Monarch to foreshorten a period of prorogation by giving notice that Parliament should reassemble. The Prorogation Act 1867 was designed to simplify the way in which Parliament could be prorogued whilst Parliament was in recess, but did not apply to prorogation at the end of a session. All of these statutes recognise the power to prorogue. The Civil Contingencies Act 2004 by section 28 and the Reserve Forces Act 1996 by section 52(8) both make provision for prorogation to be curtailed in given circumstances.

The Northern Ireland (Executive Formation etc) Act 2019 received Royal Assent on 24 July 2019. It is concerned with extending the period allowed for forming an Executive in Northern Ireland from 25 August 2019. Section 3 requires the Secretary of State, on or before 4 September 2019, to report to both Houses on progress towards the formation of an Executive; and make arrangements for motions in both Houses to be moved by ministers within five days of the report being laid. Those obligations continue to arise periodically thereafter. Section 3(4) provides that if it is impossible for ministers to move the motions because Parliament stands prorogued or adjourned, then Parliament should be summoned using the powers contained in The Meeting of Parliament Act 1797. This illustrates the undoubted power of the Crown in Parliament to legislate to ensure that Parliament sits notwithstanding prorogation. Sir James also submits that, by a side wind it could be said, it is at least possible that Parliament...