R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland

Gina Miller (who had previously defeated the government on the use of the royal prerogative in R (Miller) v Secretary of State for Exiting the European Union) in late August, following the government's announcement of the prorogation, made an urgent application for judicial review of the use of prerogative powers at the High Court of Justice for England and Wales in London.[16] Her application to the High Court was in fact heard by a Divisional Court which comprised Lord Burnett (Lord Chief Justice of England and Wales), Sir Terence Etherton (Master of the Rolls) and Dame Victoria Sharp, DBE, (President of the Queen's Bench Division), three senior judges who would normally sit in the Court of Appeal.[17] Victims' rights activist Raymond McCord made an application at the High Court of Northern Ireland in Belfast which alleged breaches of the Good Friday Agreement.[15] Both cases were rejected as non-justiciable: the three judges in the High Court of Justice of England and Wales unanimously rejected Miller's case on 6 September;[18] while the High Court of Northern Ireland did not address the aspects of McCord's case to do with prorogation in its judgment on 12 September since it was already the "centrepiece" of the English and Scottish cases.[19]

At the end of July 2019, a group of 78 parliamentarians, led by Scottish National Party (SNP) justice spokeswoman Joanna Cherry and barrister Jolyon Maugham, had made an application for judicial review to the Outer House of Scotland's highest court, the Court of Session in Edinburgh.[lower-alpha 2] The application was made to the court in Scotland because it sat during the summer—unlike its English counterpart—and was made in anticipation of a public u-turn on the matter from the government.[20] The litigants sought a ruling that prorogation to avoid parliamentary scrutiny would be unconstitutional and unlawful.[21] The government averred that the petition was "hypothetical and premature" and "that there was no reasonable or even hypothetical apprehension" that the government intended to advise that the Queen prorogue Parliament in order to prevent parliamentary scrutiny of its Brexit plans, and confirmed that averment on 23 August and 27 August.[22] When prorogation was announced on 28 August, the Cherry hearing was expedited to the following week and the applicants made an application for an interim interdict; two days later, Lord Doherty refused the request as he was not satisfied there was a "cogent need" for one.[23]

During the Court of Session hearings on 3 September, the court heard evidence that Johnson had approved negotiations with the Palace on 15 August 2019, by way of signing a handwritten note to his special adviser Nikki da Costa and Dominic Cummings, and made comments about the short sitting of Parliament in September being a "rigmarole" to show MPs were "earning their crust". Aidan O'Neill, who represented the petitioners at the Court of Session, argued that this proved the government misled the court when they described the issue of prorogation as an academic one.[24]

On 4 September, Doherty ruled in the first instance that the matter was non-justiciable; the case was immediately appealed to the Inner House of the Court of Session.[25] On 11 September, the three-judge appellate panel at the Court of Session, consisting of Lords Carloway (Lord President), Brodie, and Drummond Young, unanimously found the prorogation was unlawful. The court found Johnson was motivated by "improper purpose of stymieing Parliament" and had effectively "misled the Queen", and as a result, declared the royal proclamation as "null and of no effect", but did not offer a binding remedy to that effect.[26]

The three appeal judges of the Inner House of the Court of Session noted that O'Neill made "interesting and stirring" remarks about a Scottish tradition of holding the Crown to account; the judges stated O'Neill had "not actually identified any material differences between the applicable Scots law and the corresponding English law" and his argument was "pushing at an open door".[27]

Press and anti-prorogation protesters assemble outside the Supreme Court on 17 September 2019

To resolve the fundamental differences between the senior courts of England and Wales and Scotland, both the Miller and Cherry cases were appealed to the Supreme Court of the United Kingdom; the former skipped the Court of Appeal as a "leapfrog appeal".[26][lower-alpha 3] The Supreme Court began a three-day emergency hearing to consider the appeals on 17 September 2019. Due to the significance of the case, the maximum eleven of the twelve Supreme Court justices sat to hear the appeal,[28] with Lord Briggs not sitting to ensure an odd number of judges. The case was only the second case heard by eleven justices in the Supreme Court's history; the first was R (Miller) v Secretary of State for Exiting the European Union (2017), which delivered an 8–3 verdict that the royal prerogative could not be used to invoke Article 50 of the Treaty on European Union. The court allowed six interveners to make representations over the course of the hearing: Raymond McCord, whose case was not heard alongside Miller and Cherry; the Lord Advocate for Scotland, James Wolffe; the Counsel General for Wales, Jeremy Miles; former Prime Minister John Major; the Shadow Attorney General, Shami Chakrabarti; and The Public Law Project.[29]

The first day of the hearing heard representations from the challengers of each lower court case. The Advocate General for Scotland, Lord Keen, argued that the government was entitled to prorogue Parliament for political purposes, as Clement Attlee did in 1948 when he called a short pro forma session of Parliament to hasten the passage of the Parliament Act 1949, and that Parliament had adequate recourse to prevent prorogation if it did not wish to be prorogued. He also argued that in declaring the prorogation void, the Court of Session ruled outside its jurisdiction. When asked by the court whether Johnson would prorogue Parliament for a second time, Keen did not answer. Lord Pannick, who responded on Miller's behalf, argued that there was "strong evidence" that the purpose of prorogation was to prevent MPs from "frustrating" the government's Brexit plans, and that the court was entitled and obligated to deliver verdicts on the rule of law.[30]

The second day heard from the victors in each lower court case; the government, represented by James Eadie, argued that prorogation was "a well-established constitutional function exercised by the executive" and that decisions about prorogation were matters of "high policy". Eadie argued that in the absence of legislation that regulated the power of prorogation, it was not appropriate for the judiciary to "design a set of rules" to judge prorogation by; when asked by the justices how prorogation was compatible with parliamentary sovereignty, he answered that prorogation always had the effect of temporarily suspending parliamentary scrutiny, and parliamentarians could continue scrutinising the government once Parliament resumed. Eadie was also questioned why there was no signed witness statement that testified to the reasons for prorogation. O'Neill, who represented the Cherry litigants, argued that the decision to prorogue was "taken in bad faith" and "for an improper purpose" and that the Court of Session opinion offered an outsider perspective "400 miles from Westminster" to that effect. O'Neill agreed with Eadie that it would not be appropriate for the Court to create such rules, but argued that it was nevertheless "the province of the courts" to decide whether prorogation was constitutional.[31]

The final day of the hearing saw interventions from other interested parties: Major's former Solicitor General, Lord Garnier, argued prorogation was "motivated by a desire to prevent Parliament interfering with the Prime Minister's policies during that period"; the Scottish Government, who were represented by the Lord Advocate, argued prorogation had a "profoundly intrusive effect" on Parliament; McCord's advocate Ronan Lavery argued prorogation was designed to "run down the clock" to force a no-deal Brexit, which would in turn result in controls on the border with Ireland; and in a written submission, the Shadow Attorney General, Shami Chakrabarti, said that if the power to prorogue was unchecked, Parliament would be "deprived" of the ability to "perform its constitutional function". The hearing ended with the government and the petitioners summing up their arguments: Keen re-iterated the argument that the courts were constitutionally "not properly equipped" to decide on matters of high policy; and Pannick requested the court make a declaration that prorogation was unlawful and for Parliament to be recalled as a result.[32]

In evidence to the House of Lords Constitution Committee, Junade Ali—editor of A Federal Constitution for a Federal Britain —argued that as a result of the Fixed-term Parliaments Act 2011, the executive was unable to dissolve Parliament and thus resorted to prorogation. He noted there was an apparent misconception about the composition of Parliament: "It is fundamental within the precepts of the principles of Parliamentary Sovereignty that a chamber of the legislature is not sovereign, it is instead the Queen-in-Parliament which is sovereign."[40] Ali reiterated an argument he made before the judgment in the Oxford University Political Blog that in lieu of dissolution and prorogation, future prime ministers may ask the sovereign to refuse royal assent to any bill until the House of Commons agreed to call an early general election, which he argued would likely cause far greater public outrage than prorogation. Ali invoked an A. V. Dicey argument that—where Parliament is sovereign—dissolution is necessary both for security and harmony between the government and Parliament, and concluded that: "Paradoxically, in its quest to control its own destiny, the House of Commons might achieve the opposite."[41]

Robert Blackburn, a Professor of Constitutional Law, King's College London, argued in a different submission to the same committee that repeal or reform of the Fixed-term Parliaments Act 2011 would potentially provide a convenient opportunity for prorogation to become subject to a vote in both Houses of Parliament on a motion moved by the government – but did not consider the potential impact on the prerogative power of royal assent.[42] Robert Craig of the University of Bristol also argued that powers in the British constitution are fused, and that "the FtPA has upset this delicate balance". Craig argued the Act should accordingly be repealed and replaced, and argued against legislation to make norms in the parliamentary system more rigid by comparing such attempts to "trying to pop a balloon half way."[43]

The Early Parliamentary General Election Act 2019 received royal assent on 31 October 2019 in order to sidestep the need for a two-thirds majority for an early parliamentary general election. In the 2019 United Kingdom general election, the Conservative party won an overall majority. The Conservative election manifesto contained a pledge to reform judicial review such that it "is not abused to conduct politics by another means". The Queen's Speech after the election also announced the government's intention to uphold their manifesto commitment to repeal the Fixed-term Parliaments Act.[44]

In a statement delivered in person to journalists on College Green—near Parliament and the Supreme Court's seat in the Middlesex Guildhall—Commons Speaker John Bercow announced that Parliament would sit on the following day from 11:30 am. Prime Minister's Questions was not scheduled for its regular Wednesday midday slot, but Bercow said he would allow urgent questions and applications for emergency debates to be heard.[45] Boris Johnson, who was in New York City to give a speech before the United Nations General Assembly, brought forward his speech from the morning of 25 September to the evening of 24 September to allow him to fly back to Britain in time for the parliamentary sitting. Johnson said that he "strongly disagreed" with the ruling, but the government would "respect the judicial process" and not prevent Parliament from meeting; he also stated his preference for a new parliamentary session and Queen's Speech after a lawful prorogation.[46]

After the ruling, Johnson was criticised by opposition leaders: Labour leader Jeremy Corbyn brought forward his conference keynote speech and invited Johnson to "consider his position and become the shortest-serving Prime Minister there's ever been"; SNP leader Nicola Sturgeon demanded Johnson's resignation and urged Parliament to table a motion of no confidence if he did not resign; Liberal Democrat leader Jo Swinson said that Johnson was not "fit to be Prime Minister"; and Brexit Party leader Nigel Farage called prorogation "the worst political decision ever" and called on Johnson to fire his adviser Dominic Cummings for suggesting the plan.[45]

The first item of debate in Parliament was an urgent question by Cherry to the Attorney General, Geoffrey Cox. Cherry urged Cox to publish the legal advice he gave to Johnson on the subject of prorogation to avoid him being labelled as a scapegoat for the affair; Cox replied that he would consider whether its publication would be in the public interest. He defended the advice he gave to Johnson on the constitutionality of the prorogation as being "in good faith", and that other senior legal professionals and lower courts agreed with the government's arguments. Cox also repeated Johnson's statement from the previous day that the government accepted the ruling, and rebuked comments which attacked the independence of the judiciary; in particular, he disagreed with Jacob Rees-Mogg's description of the judgment as a "constitutional coup" and said that the motives of the judiciary were not to be questioned.[47]

The Dissolution and Calling of Parliament Act 2022 would prevent, in the future, courts from questioning the exercise of the royal prerogative power to dissolve Parliament, though would not affect the ability for courts to question a future prorogation.[48]

• R (on the application of Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)
  • Case details, including footage, on the Supreme Court website
• Joanna Cherry QC MP and Others for Judicial Review [2019] CSOH 70 (4 September 2019)
• Reclaiming motion by Joanna Cherry QC MP and Others Against the Advocate General [2019] CSIH 49 (11 September 2019)
• R (on the application of Miller) v The Prime Minister [2019] EWHC 2381 (QB) (11 September 2019)