The Supreme Court has handed down its judgment in R (Miller) v The Prime Minister  UKSC 41 and the conjoined case of Cherry and Ors v Advocate General for Scotland. The eleven justices held unanimously that the prorogation of Parliament had been unlawful. Delivering the judgment, Lady Hale PSC said that the Prime Minister’s advice to the Queen to suspend Parliament for five weeks had been unlawful and that the Prorogation was null and void. Parliament had not, therefore, been prorogued and it was for Parliament itself to decide how to proceed further.
The Court dismissed the Advocate General’s appeal against the judgment of the Inner House of the Court of Session and upheld Mrs Gina Miller’s appeal against the judgment of the Divisional Court.
In delivering the judgment of the Court, Lady Hale said that the two cases were not about when and on what terms the United Kingdom was to leave the European Union, but about whether or not the advice given by the Prime Minister to Her Majesty that Parliament should be prorogued from a date between 9 and 12 September until 14 October was lawful – and the legal consequences if it was not.
There were three questions at issue. As to the first – whether or not the lawfulness of the Prime Minister’s advice to Her Majesty was justiciable – “This Court holds that it is”.
As to the second – the limits to the power to advise Her Majesty to prorogue Parliament – the relevant limit on the power to prorogue was that a decision to prorogue (or advise the Monarch to prorogue) would be unlawful if the prorogation had 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 judging any justification that might be put forward, the Court had to be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.
The third question was whether this prorogation had had the effect of frustrating or preventing Parliament from carrying out its constitutional functions without reasonable justification. It was not a normal prorogation in the run-up to a Queen’s Speech: it prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and Exit Day on 31 October. Proroguing Parliament was quite different from Parliament going into recess because, while prorogued, neither House could meet, debate or pass legislation. This prolonged suspension of Parliamentary democracy had taken place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31 October.
No justification for taking action with such an extreme effect had been put before the Court and it was bound to conclude, therefore, 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.
The Court having already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect, the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. The prorogation was also void and of no effect. Therefore, Parliament had not been prorogued. It was for Parliament, and in particular for the Speaker and the Lord Speaker, to decide what to do next.
It followed that the Advocate General’s appeal in the case of Cherry was dismissed and Mrs Miller’s appeal allowed. The same declarations and orders should be made in each case.
The above has been prepared from the Court’s summary of the judgment. It is hoped that it will be possible to post a more considered note at a later date.