On 24 September, the Supreme Court gave judgment in the prorogation-related cases, in circumstances which it said have never arisen before and which are unlikely ever to arise again, a “one-off” judgment. The Court ruled that the advice given by the Prime Minister to Her Majesty The Queen to prorogue Parliament for five weeks was unlawful and of no effect.
In the judgment, the Court acknowledges the prerogative power of Her Majesty The Queen on the advice of the Prime Minister to prorogue Parliament. However, it is well established, and was accepted by all parties in the case, including the Prime Minister, that the courts can rule on the extent of and limits on prerogative powers.
The relevant limit upon the power to prorogue was expressed as:
"a decision 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".
The Court concluded that the Prime Minister’s decision did have the effect of frustrating or preventing Parliament's role. On the question of whether there was reasonable justification for such a decision, the Government chose to provide no evidence. For all practitioners, one lesson from this case is the need to ensure that the right evidence to advance your case is put before the court to assist it in reaching a decision. In the absence of evidence from the Government, the Supreme Court said it was impossible for it to conclude that there was a good reason to advise Her Majesty to prorogue Parliament for five weeks. As a consequence, the advice was unlawful and the prorogation was of no effect – as a matter of law, the prorogation can be said never to have happened.
Contrary to the view of some commentators, we do not see the judgment as a "constitutional coup" or the court for the first time "extending its reach into political matters". The courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. The Supreme Court referred to a series of cases since the 17th century in which the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.
The Court fulfilled its constitutional role of upholding the rule of law and ensuring that the executive does not exceed its lawful powers. It is the courts' particular responsibility to determine the legal limits of the powers conferred on each branch of government and to decide whether any exercise of power has transgressed those limits. Judicial review of Government acts is a commonplace feature of this jurisdiction's constitutional balance. As Lady Hale said "the courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context". Everybody, including the Government, is subject to the law.
Case Reference: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent); Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)
