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.

Anyone wishing to discuss this article or the litigation generally should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Three National Views on the Prorogation of Parliament

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Source Wikipedia Countries of the United Kingdon

Jane Lambert

Applications for judicial review of the prorogation of Parliament have been made to the Queen's Bench Divisional Courts of England and Wales and Northern Ireland and the Outer House of the Court of Session.  All three applications failed at first instance but an appeal to the Inner House of the Court of Session - equivalent to the Courts of Appeal of England and Wales and of Northern Ireland - has succeeded.

The decisions of Lord Doherty - the first instance judge in Scotland - on whether to restrain the prorogation and on the substantive application were published on 30 Aug 2019 and 4 Sept 2019 respectively (see  Cherry and others v Lord Advocate [2019] ScotCS  CSOH 68 and  Cherry and Others v Lord Advocate [2019] ScotCS CSOH_70).  I discussed those judgments in Cherry and Others v Lord Advocate 9 Sept 2019 NIPC Brexit. The decisions of the Inner House and the Divisional Courts of England and Wales and of Northern Ireland have been published today (see Cherry and Others v Advocate General  [2019] ScotCS CSOH_70, Miller, R (on the Application of) v The Prime Minister [2019] EWHC 2381 (QB) (11 Sept 2019) and R (McCord and another) v Prime Minister and others [2019] NIQB 78).

The applications in England and Northern Ireland failed for more or less the same reason as the first instance application in Scotland.  The judges in those jurisdictions considered that the decision to prorogue Parliament was a political decision which was not justiciable by the courts. As I said in my case note on the first instance decision:

"The decision disappoints but does not surprise me. Although our unwritten constitution lacks the clear delineations between judicial, executive and legislative powers that exist in the written constitutions of other countries there are boundaries and none of the arms of government like to trespass on the territory of the other."

The reason why the appeal succeeded in Scotland is that the Inner House was prepared to look at the history of the decision to prorogue and consider whether the government's intention was to make time for the preparation of a queen's speech as alleged by the administration or to stymie Parliament thereby making it easier for the UK to fall out of the EU by operation of art 50 (3) of the Treaty on European Union.

I have not analysed the three judgments in any detail in this article because none of them will stand for very long.   The Supreme Court will hear appeals from all three jurisdictions on Tuesday (see the

Brexit-related judicial review case(s) web page on the Supreme Court website). The following judges will hear those appeals:

• Lady Hale, President of the Supreme Court
• Lord Reed, Deputy President of the Supreme Court
• Lord Kerr
• Lord Wilson
• Lord Carnwath
• Lord Hodge
• Lady Black
• Lord Lloyd-Jones
• Lady Arden
• Lord Kitchin
• Lord Sales

The hearing will be open to the public on a first-come, first-served basis in the usual way, The proceedings will also be live-streamed and available to watch online as usual via the Court's website. Once a decision has been published I shall write about it here.

Anyone wishing to discuss this article or brexit generally may call me on 020 7404 5252 during office hours or send me a message through my contact page.

Operation Yellowhammer

Yellowhammer

Author Andreas Trepte

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Source Wikipedia Yellowhammer

Jane Lambert

Operation Yellowhammer is the code name for the UK government's contingency planning in the event of a no-deal brexit.   It is also the title of a short document headed "Operation Yellowhammer" setting out the British government's worse case planning assumptions as of 2 Aug 2019.  It was published pursuant to a Humble Address to the executive made on 9 Sept 2019.

The paper addresses the following risk areas:

• Transport systems
• People crossing borders
• Key goods crossing borders
• Healthcare services
• UK energy and other critical systems
• UK food and water supplies
• UK Nationals in the EU
• Law enforcement implications
• Banking and finance industry services
• Brexit and the Irish border
• Specific risks to overseas territories and Crown dependencies (including the effect of Brexit on Gibraltar), and
• National Security.

The basic assumption is that the EU will be "as a whole unsympathetic" and that public and business preparedness will be at a low level owing (among other things to "brexit fatigue" following two previous extensions to the art 50 (2) notice period.

It is important to stress that this blog is not a campaign document. Its purpose is to alert clients and others to the factors that need to be taken into account when planning their investments and expenditure over the next few months.   Should anyone wish to discuss this article or brexit generally, call 020 7404 5352 during office hours or send me a message through my contact form.

European Union (Withdrawal) (No. 2) Act 2019.

Author O Flammger London (Stengel & Co. Dresden)
Source Wikipedia, The Palace of Westminster

Jane Lambert

The European Union (Withdrawal) No 6 Bill which I mentioned in my August Brexit Briefing received royal assent on 9 Sept 2019 and is now law. It is known as the European Union (Withdrawal) (No. 2) Act 2019 though some of those who have opposed this legislation have somewhat ungraciously referred to it as "the surrender act" (see Jeff Taylor Brexit Surrender Act is now Law 9 Sept 2019 YouTube).

The purpose of the Act is "to make further provision in connection with the period for negotiations for withdrawing from the European Union." The short Act consists of 5 sections and a schedule. 

The key provision of the Act is s.1 which consists of 5 subsections.  The first two of those subsections impose conditions for the UK's withdrawal from the EU.  The condition in s.1 (1) is that:

"a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom has concluded an agreement with the European Union under Article 50 (2) of the Treaty on European Union and a copy of the agreement and—
(a) the agreement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) a  motion for the House of Lords to take note of the agreement has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a)."

The condition in s.1 (2) is that:

"a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom is to leave the European Union without an agreement having been reached under Article 50 (2) of the Treaty on European Union and—
(a) the statement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown in the following form—

“That this House approves the withdrawal of the United Kingdom from the European Union under Article 50 of the Treaty on European Union on exit day, without a withdrawal agreement as defined in section 20(1) of the European Union (Withdrawal) Act 2018”,

and 

(b) a motion for the House of Lords to take note of the statement has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a)."

If neither of those conditions is complied with before 19 Oct 2019, s.1 (3) requires the prime minister to comply with s.1 (4) on or before that date.

Under s.1 (4) the prime minister must seek to obtain from the European Council an extension of the period under art 50 (3) of the Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the President of the European Council a letter in the following terms which are set out in the schedule to the Act:

"Dear Mr President, 

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50 (3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.
I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50 (3) of the Treaty on European Union, including as applied by Article 106 a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early. 

Yours sincerely, 

Prime Minister of the United Kingdom of Great Britain and Northern Ireland”

The subsection adds that the purpose of the subsection is to to enable Parliament to "debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50 (2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks."

If the conditions in s.1 (1) or s.1 (2) are met after 19 Oct but before 30 Oct 2019, s.1 (5) enables the prime minister to withdraw or modify his request.

If such an extension is granted, s.2 (1) imposes a duty on the Secretary of State to report on the progress of negotiations with the EU to Parliament or before 30 Nov 2019 and in each subsequent period of 28 days up to 7 Feb 2020 or agreement is reached pursuant to s.2 (5).  Those reports must be approved by both Houses under s.2 (2) and (3).  If the report is rejected or amended the Secretary of State has to make proposals for further negotiations under s.2 (4). 

S.3 (1) requires the prime minister to agree to an extension ending on 31 Jan 2020.  If some other date is offered by the Council the prime minister must accept the exception within 2 days of the offer by virtue of s.3 (2) unless the House of Commons refuses to pass a motion in the following terms:

“That this House has approved the extension to the period in Article 50(3) of the Treaty on European Union which the European Council has decided.”

S.3 (4) allows the prims minister to agree to an extension otherwise than in accordance with s.3 (2).

S.4 (1) amends s.20 (4) of the European Union (Withdrawal) Act 2918 by substituting "must" for "may" in the provision requiring the government to fix the date and time of the UK's withdrawal from the EU by statutory instrument.  That amendment will not apply if the Commons does not pass the motion mentioned  above,

The last section provides for the commencement interpretation and extent of the Act and its short title.

Anyone wishing to discuss this article or brexit generally may call me on 020 7404 5252 during office hours or send me a message through my contact page.

Cherry and others v Lord Advocate

Parliament Square, Edinburgh

Author Kim Traynor

Licence CC BY-SA 3.0 

Source Parliament House Edinburgh

Jane Lambert

Court of Session, Outer House (Lord Doherty) Joanna Cherry QC MP and others v Lord Advocate  [2019] ScotCS CSOH_70 (4 Sept 2019)

By a petition lodged on 30 July 2019, Joanna Cherry QC, MP, the Scottish National Party's spokesperson for Justice and Home Affairs and a large number of other petitioners including other Members of the UK Parliament, petitioned the Court of Session in Edinburgh for the following relief:

“(1) A declarator that it is ultra vires et separatim unconstitutional for any Minister of the Crown, including the Prime Minister, with the intention and aim of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to purport to advise the Queen to prorogue the Union Parliament.
(2) Interdict against Ministers of the Crown from advising the Queen, with the view or intention of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to prorogue the Union Parliament, and for interdict ad interim.
(3) Such further orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case.”

The petition came on before Lord Doherty who gave two judgments, the first on 30 Aug 2019 in Cherry and others v Lord Advocate  : [2019] ScotCS CSOH_68 in which he refused to restrain the government from proroguing Parliament in the terms of the Order in Council of 28 Aug 2019 which I mentioned in my Brexit Briefing for August 2019 or set aside the order and the second in Cherry and Others v Lord Advocate [2019] ScotCS CSOH_70.

At paragraph [9] of his first decision, Lord Doherty explained that he refused the order because he was not satisfied that there was a cogent need for interim orders, and the balance of convenience did not favour the petitioners, He, therefore, did not propose to decide whether the petitioners had a prima facie case which is apparently an unusual course to take in Scotland, but was justified in the circumstances, and bearing by the imminence of substantive hearing where further argument would be possible.

In his second decision on the substantive hearing, Lord Doherty dismissed the petition.   His short judgment set out in full each party's arguments and his finding between paragraphs [24] and [34].  The key reason appears in paragraph [25]:

"In my opinion the authorities discussed during the submissions vouch the following propositions. The exercise of some prerogative powers in some circumstances is justiciable, in other cases it is not. The court's role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise, particularly on whether the subject matter is justiciable. Whether the exercise of a prerogative power is reviewable depends on the subject-matter and the context of the power and of the challenge. Some functions exercised or decisions taken are non-justiciable. Among them are matters of high policy and political judgement. The court does not have the tools or standards to assess the legality of such matters. That is political territory and decision-making which cannot be measured against legal standards, but rather only by political judgments. The courts will not seek to superimpose legal controls on such matters. Rather, the accountability for them is to Parliament and the electorate."

The decision disappoints but does not surprise me.  Although our unwritten constitution lacks the clear delineations between judicial, executive and legislative powers that exist in the written constitutions of other countries there are boundaries and none of the arms of government like to trespass on the territory of the other.  It is believed that this case together with Gina Miller's unsuccessful action for similar relief will be considered by the Supreme Court on 17 Sept 2019.  If the boundaries have shifted that is the court best placed to declare such shifts.

Anyone wishing to discuss this case note or brexit generally should call me on 020 7404 5252 or send me a message through my contact form.

Brexit Briefing - August 2019

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Jane Lambert

At the beginning of August 2019, the UK seemed to be on course to leave the European Union without a withdrawal agreement.  The government's official policy was to continue to negotiate (or at least to offer to negotiate) right up to 31 Oct 2019 but on terms that the European Commission and the remaining EU member states could never accept (see "Dear Donald" - Johnson's Letter to Tusk and Tusk's Response 19 Aug 2019 and Kitty Donaldson and others EU Says U.K. Has Failed to Deliver New Proposals: Brexit Update 4 Sept 2019 Bloomburg).  The thinking seemed to be that the EU would blink first and make concessions at the end of the day as is said to have happened.  If not, the blame for any economic dislocation arising from no deal could be pinned on the obduracy of the EU.  The election of a new leader had given the Conservative Party a boost in the polls which was reinforced by proposals for popular domestic measures and the support of four of Britain's biggest-selling newspapers.

Now the outlook is much less sure.   A bill requiring the Prime Minister to apply for yet another extension to the notice period provided by art 50 (3) of the Treaty on European Union has already passed through the House of Commons and is unlikely to be stopped in the Lords (see European Union (Withdrawal) (No. 6) Bill (HL Bill 202) Parliament website). The government lost its slender majority in the House of Commons when Dr Philip Lee MP ostentatiously crossed the floor while the Prime Minister was on his feet:

 
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It withdrew the whip from several of its leading MPs including senior ministers in Theresa May's administration and suffered resignations from several others including the Prime Minister's own brother as well as the leader of the Conservative Party in Scotland.  The Prime Minister's speech to cadets at the West Yorkshire Police training centre was unconfident and incoherent.

Why this reverse in political fortunes?   The wheels seemed to fall off the government's juggernaut on 28 Aug 2019 when the government advised the Queen to prorogue Parliament from the middle of September to the middle of October (see the Order in Council of 28 Aug 2019). Parliament is often prorogued at this time of the year for party conferences and the length of this year's prorogation is onlya few days longer than normal but its timing was perceived rightly or wrongly as a coup.  The result was demonstrations in support of Parliament from Lerwick in the North to Bodmin in the Southwest.

Those demonstrations were not large but they seem to have been significant.  Not only do they appear to have precipitated the Parliamentary defeats mentioned above but appeals to the public to side with the executive in implementing the referendum result appear so far to have landed on deaf ears.  The sight of the Leader of the House lolling about on the benches during an important debate did not go down well.  Neither did the delivery of a big girl's blouse to the leader of the opposition after he refused to vote for a general election before 31 Oct 2019.

These events in Parliament and elsewhere have caused sterling to rise on the currency markets but it is far too early to discount the possibility of a disorderly brexit. By a press release dated 4 Sept 2019 the Commission called on all EU citizens and businesses to prepare for the UK's withdrawal without a deal on 31 Oct 2019.  It has published detailed recommendations in its communication to the European institutions of 4 Sept 2019 Finalising preparations for the withdrawal of the United Kingdom from the EuropeanUnion on 1 November 2019  as well as a Brexit Preparedness Checklist.   

Three of the items on the checklist apply to intellectual property, contracts and data protection and are worth repeating here:

"Trademarks and designs, geographical indications, plant variety rights A unitary trademark and design35, as well as an EU system of geographical indications36 and EU-rules on plant variety rights37 ensure the protection of these intellectual property rights throughout the EU. Post-Brexit, the protection granted by these rights no longer applies to the UK territory.
Have I taken the necessary steps to ensure continued protection of my intellectual property rights in the UK?"

"Contracts – jurisdiction clauses
The recognition and enforcement by one Member State of judgements in civil and commercial matters handed down in another Member State is greatly facilitated by EU law38. Post-Brexit, the recognition and enforcement of UK judgements will be governed by the (national) rules for third country judgements.
Have I re-assessed a choice of UK jurisdiction in my commercial contracts"

"Personal data
EU law provides for the transmission of personal data across EU Member States without additional requirements39. Post-Brexit, the transmission of personal data from the EU to the UK is subject to the rules for data transfers to third countries. This is relevant for many business sectors, particularly if EU businesses continue to work with data-centres located in the UK.
Have I taken the necessary steps to ensure compliance with EU rules if I transfer personal data to the UK?" 

Anyone wishing to discuss this article or the preparations that need to be made for and after 31 Oct 2019 may call me on 020 7404 5252 during office hours or send me a message through my contact form.