R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland
The Prime Minister's advice to the Queen to prorogue Parliament for five weeks in the run up to Brexit was justiciable and unlawful.
Facts
In August 2019, the Prime Minister, Boris Johnson, advised the Queen to prorogue Parliament from a date between 9 and 12 September until 14 October 2019, a period of about five weeks, shortly before the deadline for the UK to leave the European Union on 31 October. The Queen made an Order in Council proroguing Parliament. Gina Miller in England and Joanna Cherry MP and others in Scotland challenged the lawfulness of the advice, arguing that the prorogation was intended to stop Parliament from scrutinising the government's Brexit plans. The High Court in England held that the issue was not justiciable, while the Inner House of the Court of Session in Scotland held that it was justiciable and unlawful.
Legal principle
The Supreme Court held unanimously that the issue was justiciable and that the advice to prorogue was unlawful. The courts have always determined the limits of prerogative powers, and the question was whether the power to prorogue had been exercised within its legal limits. A decision to prorogue Parliament, or to advise the monarch to do so, 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. The court held that the prorogation had that effect, and no justification had been given. The advice, the Order in Council and the prorogation itself were void and of no effect, so Parliament had not been prorogued, and it reconvened the next day.
Related cases on royal prerogative
- Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508
- Blackburn v Attorney General [1971] 1 WLR 1037
- Case of Proclamations (1611) 12 Co Rep 74
- Chandler v Director of Public Prosecutions [1964] AC 763
- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
- Laker Airways Ltd v Department of Trade [1977] QB 643
- Prohibitions del Roy (1607) 12 Co Rep 63
- R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598
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