R (on the application of Miller) v The Prime Minister ; Cherry and Others v Advocate General for Scotland

JurisdictionEngland & Wales
JudgeLady Hale,Lord Reed
Judgment Date24 September 2019
Neutral Citation[2019] UKSC 41
CourtSupreme Court
Docket NumberNo 1
Date24 September 2019
R (on the application of Miller)
(Appellant)
and
The Prime Minister
(Respondent)
Cherry and others
(Respondents)
and
Advocate General for Scotland
(Appellant) (Scotland)

[2019] UKSC 41

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

Supreme Court

On appeals from: [2019] EWHC 2381 (QB) and [2019] CSIH 49

Appellant (Gina Miller)

Lord Pannick QC

Tom Hickman QC

Warren Fitt

(Instructed by Mishcon de Reya LLP (London))

Appellant (The Advocate General)

Lord Keen of Elie QC

Andrew Webster QC

(Instructed by Office of the Advocate General for Scotland)

Respondent (The Prime Minister)

Sir James Eadie QC

David Blundell

Christopher Knight

Richard Howell

(Instructed by The Government Legal Department)

Respondents (Joanna Cherry MP and others)

Aidan O'Neill QC

David Welsh

Sam Fowles

(Instructed by Balfour and Manson LLP (Edinburgh))

1 st Intervener

James Wolffe QC, Lord Advocate

James Mure QC

Christine O'Neill

(Instructed by the Legal Department of the Scottish Government)

2 nd Intervener

Ronan Lavery QC

Conan Fegan BL

Richard Smyth

(Instructed by McIvor Farrell Solicitors)

3 rd Intervener

Michael Fordham QC

Celia Rooney

Hollie Higgins

(Instructed by Welsh Government Legal Services Department)

4 th Intervener

Lord Garnier QC

Tom Cleaver

Anna Hoffmann

(Instructed by Herbert Smith Freehills LLP (London))

5 th Intervener

Deok Joo Rhee QC

Catherine Dobson

(Instructed by Howe and Co)

6 th 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)

Heard on 17, 18 and 19 September 2019

Lady Hale AND Lord Reed GIVING THE JUDGMENT OF THE COURT:

1

It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.

What is prorogation?
2

Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer. Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen's Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.

3

Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.

4

Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.

5

Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances: either the House of Commons votes, by a majority of at least two-thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty's Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty's power to prorogue Parliament (section 6(1)).

6

Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.

The run-up to this prorogation
7

As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis. Immediately after the referendum, Mr David Cameron resigned as Prime Minister. Mrs Theresa May was chosen as leader of the Conservative party and took his place.

8

The machinery for leaving the European Union is contained in article 50 of the Treaty on European Union. This provides that any member state may decide to withdraw from the Union “in accordance with its own constitutional requirements”. That member state is to notify the European Council of its intention. The Union must then negotiate and conclude an agreement with that member state, “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. The European Union treaties will cease to apply to that state when the withdrawal agreement comes into force or, failing that, two years after the notification unless the European Council, in agreement with the member state, unanimously decides to extend this period.

9

On 2nd October 2016, Mrs May announced her intention to give notice under article 50 before the end of March 2017. Mrs Gina Miller and others challenged her power to do so without the authority of an Act of Parliament. That challenge succeeded: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61. Parliament responded by passing the European Union (Notification of Withdrawal) Act 2017, which received royal assent on 16th March 2017 and authorised the Prime Minister to give the notification. Mrs May did so on 29th March 2017.

10

That Parliament was dissolved on 3rd May 2017 and a general election was held on 8th June 2017. The result was that Mrs May no longer had an overall majority in the House of Commons, but she was able to form a Government because of a “confidence and supply” agreement with the Democratic Unionist Party of Northern Ireland. Negotiations for a withdrawal agreement with the European Council proceeded.

11

Meanwhile, Parliament proceeded with some of the legislative steps needed to prepare United Kingdom law for leaving the Union. The European Union (Withdrawal) Act 2018 came into force on 26th June 2018. In brief, it defined “exit day” as 29th March 2019, but this could be extended by statutory instrument (section 20). From that day, it repealed the European Communities Act 1972, the Act which had provided for our entry into what became the European Union, but it preserved much of the existing EU law as the law of the United Kingdom, with provision for exceptions and modifications to be made by delegated legislation. Crucially, section 13 requires Parliamentary approval of any withdrawal agreement reached by the Government. In summary it provides that a withdrawal agreement may only be ratified if (a) a...

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