An exterior view shows a sign by the main entrance of the Supreme Court in London, Monday, Sept. 16, 2019. Britain's Supreme Court this week will rule on whether Britain's Prime Minister Boris Johnson overstepped the law when he shut the legislature for a crucial five-week period. Johnson portrays himself as more convinced than ever that Britain will break with the EU at the end of October. (AP Photo/Matt Dunham)
An exterior view shows a sign by the main entrance of the Supreme Court in London, Monday, Sept. 16, 2019. Britain's Supreme Court this week will rule on whether Britain's Prime Minister Boris Johnson overstepped the law when he shut the legislature for a crucial five-week period. Johnson portrays himself as more convinced than ever that Britain will break with the EU at the end of October. (AP Photo/Matt Dunham)
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Brexit: Prime Minister’s decision to prorogue Parliament unlawful, UK Supreme Court

Aditya AK

In a significant decision, the Supreme Court of the United Kingdom has unanimously held that the decision of Prime Minister Boris Johnson to prorogue Parliament in the midst of discussions surrounding Brexit was unlawful.

The decision was rendered by a full bench of 11 Justices headed by President of the UK Supreme Court, Lady Hale.

On August 28, Prime Minister Johnson had advised the Queen to prorogue Parliament from mid-September till October 14. This advice came around a month before the day the United Kingdom is slated to leave the European Union, on October 31. Apprehending that Parliament might be prorogued in order to avoid further debate on the Brexit issue, a group of 75 MPs and one Queen’s Counsel filed a petition in the Court of Session in Scotland challenging the prorogation.

On the date the prorogation was announced, businesswoman and activist Gina Miller filed her challenge before the English courts.

On September 11, the High Court of England and Wales dismissed Miller’s claim on the ground that the issue was not justiciable in a court of law. That same day, the Court of Session in Scotland held that the issue was justiciable, and that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the government. Both these decisions were challenged, by Miller and the Advocate General for Scotland, respectively.

Both appeals were then heard by the UK Supreme Court from September 17 to 19. The judgment in the case was announced today.

At the outset, the judgment authored by Lady Hale and Lord Reed states that the present case has no bearing on when and how Brexit will happen.

“It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a date between 9th and 12th September until 14th October, was lawful and the legal consequences if it was not.”

The Court framed four questions surrounding the issue. The first was whether the lawfulness of the Prime Minister’s advice to the Queen was justiciable. The Court answered this in the affirmative, observing that there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.

The second question was centred around the limits of the prerogative power. To answer this, the Court held,

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The third question was whether this prorogation had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. In this regard, the Court held,

“The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October.”

The final question was what the legal effect of that finding is and what remedies the Court should grant. Denying the argument that prorogation was a “proceeding in Parliament”, the Court held that it is not precluded by article 9 of the Bill of Rights, 1688 or by any wider Parliamentary privilege from considering the validity of the prorogation. It was thus held,

“This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.”

Johnson’s decision to prorogue Parliament had prompted an uproar from the House of Commons, especially from MPs who had planned to force through a law to block a no-deal Brexit after the PM said the UK would leave the EU with or without a deal.

Read the judgment:

UK-Supreme-Court-prorogation.pdf
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Image taken from here.

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