The Prorogation Appeals: R (Miller) v PM and Cherry and Others v Advocate-General

UK Supreme Court

Author Christine Smith
Licence CC BY-SA 4.0
Wikipedia Supreme Court of the United Kingdom

Jane Lambert

Supreme Court of the UK (Lady Hale, President, Lord Reed, Deputy President Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales) R (Miller) v Prime Minister [2019] UKSC 4 (24 Sept 2019)

On 24 Sept 2019, the Supreme Court gave judgment in Gina Miller's appeal against the Divisional Court's decision in R (Miller) v The Prime Minister [2019] WLR(D) 511, [2019] EWHC 2381 (QB) and the British government's appeal against the Inner House's decision in Cherry and others v Advocate-General for Scotland  [2019] ScotCS CSIH_49, [2019] CSIH 49. I discussed the decisions of the Court of Session and the Divisional Courts of England and Wales and Northern Ireland in Three National Views on the Prorogation of Parliament 13 Sept 2019. I also discussed Lord Doherty's decision in Cherry and others v Lord Advocate 5 Sept 2019.  The Supreme Court unanimously allowed Miller's appeal against the Prime Minister and dismissed the Advocate-General's appeal against the Inner House's decision in Cherry.

At paragraph [27] of their judgment, the justices set out the issues in dispute:

"(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
(2) If it is, by what standard is its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?"

The parties' arguments in the appeals can be seen on the Supreme Court's websites for Miller's case and Cherry's. All four issues were lost by the government.  The Court's discussion on the first of those issues can be seen between paragraphs [28] and [37]. Its discussion on the second appears between paragraphs [38] and [54].  Its discussion of the third appears between paragraphs [55] and [61],  As to the remedy that was available, it had been argued that the courts were precluded by art 9 of the Bill of Rights from impeaching or questioning the prorogation as it was a "proceeding" in Parliament. The justices held that it was no such thing as it had been imposed by the executive. Having dealt with that objection the Court concluded at [70]:

  "It follows that Parliament has not been prorogued and that this court should make declarations to that effect. We have been told by counsel for the Prime Minister that he will “take all necessary steps to comply with the terms of any declaration made by the court” and we expect him to do so. However, it appears to us that, as Parliament is not prorogued, it is for Parliament to decide what to do next. There is no need for Parliament to be recalled under the Meeting of Parliament Act 1797. Nor has Parliament voted to adjourn or go into recess. Unless there is some Parliamentary rule to the contrary of which we are unaware, the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward. That would, of course, be a proceeding in Parliament which could not be called in question in this or any other court."

A video of the President delivering judgment appears here.

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