R (on the Application of Miller) v The Prime Minister ('Miller No2')
[2019] UKSC 41; [2019] 3 WLR 589
Supreme Court
Facts:
A minority government, which had no clear majority for any model of Brexit, was in power. It was becoming increasingly unfeasible to negotiate and legislate in preparation of Brexit. The Parliament could not be dissolved due to the Fixed-Term Parliament Act 2011.
The PM advised Queen to prorogue Parliament, which she did.
A number of MPs petitioned the Court of Session to declare the PM proroguing parliament was unlawful.
Legal Facts / Procedural History:
First Case: Divisional Court (Queen’s Bench Division)
Second Case: Inner House of the Court of Session
Legal Issues:
Whether a court of law could question whether the PM’s advice to the Queen.
Whether the legal limits of the prerogative power can be challenged in court.
Whether the advice given by the PM to the Queen was lawful.
How the court could remedy an unlawful proroguing of parliament.
Appellant (Miller) Arguments:
The PM’s actions were unlawful. Therefore, order to prorogue Parliament is void.
The PM had motive to prorogue Parliament as it was advantageous to him. He was preventing Parliament from performing its legislative function until Brexit negotiations had finished.
Respondent (The PM) Arguments:
The PM should only be accountable to Parliament, not a court. To do so enters the judiciary into the political arena – they should respect the separation of powers.
A court nullifying the order would be contrary to the Bill of Rights 1688.
Judgement (Hale PSC, Reed DPSC, Kerr JSC, Wilson JSC, Carnwath JSC, Hodge JSC, Black JSC, Lloyd-Jones JSC, Arden JSC, Kitchin JSC and Sales JSC):
The PM did not have the power to give the advice. Proroguing Parliament was unlawful, so the Order in Council is of no effect. Therefore, Parliament is no longer prorogued. Once Parliament is reopened, the case is outside the jurisdiction of the courts due to parliamentary sovereignty.
In this case, if the courts did not intervene, the government could have achieved its purpose before Parliament could hold them to account – ‘closing the stable door after the horse has bolted’.
‘The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.’
The principle of the sovereignty of Parliament would be undermined if the government could prorogue Parliament without legal limit. It is the courts duty to ensure this doctrine is respected.
The decision to prorogue Parliament would be unlawful ‘if the prorogation 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’. If the situation is sufficiently serious, the courts can intervene.
The courts should not be concerned with the PM’s motive, but whether there is a justifiable reason to prorogue Parliament.
Fundamental change was due to take place to the constitution during this time. Therefore, in the present case, the role of Parliament was jeopardised. There is no good reason why Parliament was to be prorogued for so long.
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