The Rule of Law: an analysis of the Supreme Court decision in Miller/Cherry, by Kevin Molloy and Colin Witcher

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: [2019] EWHC 2381 (QB) and [2019] 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.


Published on September 26, 2019 by Colin Witcher and Kevin Molloy

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