Cherry v Advocate General for ScotlandMiller v Prime Minister
United Kingdom Supreme Court Appeal Judgment
Date 24 Sep 2019
Neutral citation number [2019] UKSC 41
Case ID UKSC 2019/0193
held
(1) the Prime Minister’s accountability to Parliament did not in itself justify the conclusion that the courts have no legitimate role to play because the effect of prorogation was to prevent the operation of ministerial accountability to Parliament during the period when Parliament stood prorogued and because the courts had a duty to give effect to the law irrespective of the Prime Minister’s political accountability to Parliament (para 33);
(2) if the issue before the court was justiciable, deciding it would give effect to the separation of powers by ensuring that the Government did not use prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions (para 34)
(3) a distinction was to be drawn between (first) the existence and extent of a prerogative power existed and (second) whether the exercise of an existing prerogative within its limits was open to legal challenge on some other basis, with questions arising under the first issue always being justiciable (paras 35-36);
(4) prerogative powers were limited by the principle of Parliamentary sovereignty (that laws enacted by the Crown in Parliament are the supreme form of law in our legal system) (para 41);
(5) an unlimited power of prorogation would incompatible with the principle of Parliamentary sovereignty, as then the executive could prevent Parliament from exercising its legislative authority for as long as it pleased (paras 42, 44);
(6) prorogation that 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 would be unlawful, and the court would intervene if the effect was sufficiently serious to justify such an exceptional course (para 50)
(7) the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account, where it prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October, a date when a fundamental change was due to take place (paras 55-57);
(8) there was no justification for the prorogation lasting five weeks, as the unchallenged evidence of former Prime Minister Sir John Major was that the typical time required for preparation of a Queen’s Speech was four to six days, and there was no reason given in the Government’s minutes for a prorogation of such length, there being no hint there that the Prime Minister was acting as someone with a constitutional responsibility to have regard to the interests of Parliament rather than simply the leader of the Government seeking to promote its own policies (paras 30, 58-62);
(9) Parliamentary privilege did not preclude the court holding that the act of prorogation itself (rather than simply the advice to Her Majesty to prorogue) was unlawful as the prorogation was not a proceeding of Parliament, where it was imposed from outside rather than debated and voted upon by Members of Parliament, and was not the core and essential business of Parliament given that it brought that business to an end (para 68);
(10) the prorogation was of no lawful effect and it was not necessary for Parliament to be recalled as Parliament had not been prorogued (paras 69-7), and appeal in Cherry refused and in Miller allowed