Mon - Fri 08.30 - 18.00
Second Floor Goldsmith Building Temple London EC4Y 7BL
Tel: +44 020 7936 3637
Fax: +44 020 7583 2061
DX 458 London Chancery Lane
Chambers provides an out of hours service. If you call Chambers main number you will be diverted to the clerk on call who will be able to deal with your enquiry.
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) On appeals from:  EWHC 2381 (QB) and  CSIH 49: case comment
It may be somewhat unusual to produce a simplified commentary of a Supreme Court decision, however having reflected on comments posted on social media, including those made by celebrities (loosely defined) and Members of Parliament (for now at least), a simple and an accessible digest seemed somewhat appropriate. The starting point for understanding the Judgment of the Supreme Court is of course to actually read the Judgment . For those that are unable to digest and understand 24 pages of clear, reasoned and measured analysis by arguably the finest legal minds in the Country, there is a short summary available of a mere 4 pages . For those wondering how many pages our Constitution runs to, its 0 pages: the leading textbook on Constitutional Law is however 392 pages and is one of many.
It is helpful to emphasise at the outset, as indeed the Supreme Court did, that the case was not about when or on what terms the United Kingdom is to leave the European Union. So, contrary to the views of the misinformed, the case has not changed the intended date of our departure from the European Union and, put bluntly, does not prevent our departure. The case cannot therefore be a victory for either Leave or Remain. It is entirely a victory for the rule of law.
The case before the Supreme Court concerned whether the advice given by the Prime Minister to Her Majesty the Queen in late August 2019, namely 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. Prorogation marks the end of a parliamentary session. It is the formal name given to the period between the end of a session of Parliament and the State Opening of Parliament that begins the next session. The Queen formally prorogues Parliament on the advice of the Privy Council.
The formal questions before the Court and as set out in the Court‘s written Judgment (which no doubt you have now read) were as follows:
(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 first question that arose as a matter of law is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. Put simply, can it be subject to review by the Court? The Supreme Court held that it is. There is nothing surprising or controversial in the same. The Courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. Such scrutiny should be welcomed; consider for a moment the effect of being unable to challenge the decision of a Prime Minister who was not chosen to lead the Country at a General Election to close down Parliament thus stopping any opportunity for debate or challenge. It is not hard to imagine; it was after all the facts of the present matter. One could ask, what if the Prime Minster decided to prorogue Parliament for a year? It is perfectly proper and democratic for a Prime Minister’s decision for prorogation to be subject to independent, transparent, judicious scrutiny.
The second question, the Court having found that it has the power to consider the decision to prorogue, is “how does the Court assess whether the decision to prorogue is lawful?”. Put another way, what is the correct test to be applied when the Court undertakes an independent, transparent, judicious review? The Court found it helpful to consider what are the limits of the power of prorogation, which is ultimately decided by considering whether the prorogation had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.
Whilst Parliament is prorogued, the House of Commons cannot meet, debate or pass legislation. Neither the House of Commons or House of Lords can debate Government policy. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. Thus prorogation, put simply, has the effect of preventing work being undertaken by hundreds of democratically elected MPs. The Court found that the prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances, namely in the lead up-to the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme by the Prime Minster’s decision, because he was in effect shutting down democracy. Contrary to public opinion, the only mention of Brexit, was in fact in assessing, by inference, that Parliament surely needed to be working on the issue and debating the same, not being silenced. Crucially, no justification for taking the action of prorogation, with such an extreme effect, was put before the Court. In short, the Prime Minister seemingly had no answer to counter the suggestion he was stifling debate; the antithesis of democracy. As such, in answering the third question, “was the decision to prorogue lawful”, the Court found it plainly was not. That was a unanimous decision by all 11 Judges. The Court however made no finding on whether or not the Prime Minster, or any other Minister, had lied to the Queen.
To call the decision of the Court undemocratic is a distraction and evidences a flawed analysis. The Court found that the decision taken by the Prime Minister could not be termed lawful, as the decision taken affected the ability for democracy to function. Thus the highest Court in the land found that the Prime Minister on behalf of the executive was wrong to do what he did.
In short, MPs should be debating, asking questions, and acting on behalf of the public; they should not be sat in silence without a voice. It was plainly a decision that promotes democracy and prevents the abuse of power. Those that suggest it was undemocratic, do so because they do not believe that the elected Government should be subject to judicial scrutiny by the unelected. Let us remember however that it was judicial scrutiny that prevented changes by Parliament to pensions for firefighters. An elected Parliament cannot have a green light to act as they like, when they like, and for reason that they like, simply because they are elected.
There must and should be a separation of powers, with independent Judges chosen on merit and not political allegiances, to hold those in power to account. If those in power act with transparency, reasoned justification and in the interest of democracy, they have nothing to fear.
The Judgment of the Supreme Court is neither shocking or controversial; some may argue that it is actually quite mundane because it articulates the most modest of constitutional propositions: namely that the UK is a democracy founded on parliamentary sovereignty, executive accountability, and the rule of law. We are all equal. No one is above the law.
In a nutshell, the executive arm of our parliamentary democracy over-stepped the mark and our courts have told them to get back in line.
……“the consequences of the infringement of the procedural rules about contempt proceedings may be just as serious... more
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General... more
Over the past week, Lewis Power QC has been representing the Church Court International Law Team across the pond. Mr. Power QC... more
Lincoln’s Inn Barrister Still Missing Despite the Promises of Foreign Adviser Gowher Rizvi to Assist after Al Jazeera Head to... more
Yasin Patel and Amy Hazlewood look at one of the most important pieces of legislation passed in recent years. One that is looking... more
As October 31st 2019 draws nearer, Britain’s exit from the European Union and its exact terms become all the more important. ... more
The Corporate Manslaughter and Homicide Act 2007 (the Act), was designed to create a statutory offence, facilitating the... more
Yasin Patel and Amy Hazlewood look at the area of drill music and the law. This article is split into two parts: the first part... more
Yasin Patel looks at the question of “racism in football”. In this two part series, the first article outlines the arguments... more
In this article, written by Yasin Patel and Amy Hazlewood, we look at the areas of drugs, and in particular ‘county lines’... more
The British government and its agencies powers of investigation will increase significantly with a new piece of legislation.... more
Since the downfall of ISIS and the liberation of many Syrian people, women and children (and whole families) have been fleeing to... more
Tax Avoidance and Tax Evasion. What is the difference? One is illegal and one is smart tax planning. But which is which? Local... more
Yasin Patel and Amy Hazlewood explore the problems surrounding drones, from their use in humanitarian activities to drugs being... more
Yasin Patel looks at the growing area of ‘Image Rights’ and why it makes sense for a sports star to protect their ‘image... more
The case of Zamira Hajiyeva and the Unexplained Wealth Order “UWO” restrictions imposed upon her have brought to... more
New Law Journal publishes article by George Hepburne Scott regarding the recent ground breaking High Court case regarding prison... more
New Law Journal publishes an article by George Hepburne Scott regarding changes to the judiciary in Poland. George Hepburne Scott... more
‘Suck my d**k, you n****r, you n***o’ Offended by the title. And so you should be, but what are you going to do about it?... more
Please follow link below to read George Hepburne Scotts article on extradition published in the New Law Journal.... more
The Situation before the Human Rights Act In the traditional doctrine of statutory interpretation, the courts looked at the... more
The new Prime Minister Theresa May has announced a review of the Modern Slavery Act 2015; it is clear that corporate compliance... more
The Court of Appeal in the case of Griffiths 1 QB 589, made an apposite observation concerning a growing trend towards indicting... more
On 23 June 2016 over 33 million people voted in the EU referendum. Since that date there has been widespread anger from those who... more
Alkan Shenyuz is a barrister with Church Court Chambers specialising in international commercial law and in this article for... more
Leading legal publisher Westlaw has published Michael Polak’s article on INTERPOL notices. INTERPOL notices can severely... more
Alkan Shenyuz, a barrister and specialist in banking and financial services looks at the new EU Payment Services Directive and... more
In a clear sign that regulators want to open up competition in the UK banking industry to new banks, the Prudential Regulatory... more
In R (on the application of DC and The Secretary of State for Justice EWHC 33 (Admin) the High Court considered the law of... more
Whilst it would be naïve to suggest that ‘marriages of convenience’ do not occur, the Home Office seem to me to be using... more
Anthony assisted partners in Peters & Peters LLP in providing an expert summary of the laws and regulations which have been... more
Looted antiquities from Syria – what collectors need to know Alkan Shenyuz, barrister with Church Court Chambers discusses what... more
Modern Slavery Act 2015 The introduction of this consolidating act is to be welcomed. As with all recent changes to criminal... more
Alkan Shenyuz, a barrister with Church Court Chambers in London and a specialist in international law, summarises the key legal... more
The Government’s announcement in June that it is to bring forward legislation in Parliament to ratify the Hague Convention on... more
An interesting and insightful article from Lesley Manley of Church Court Chambers on mental impaired clients. It is often helpful... more