R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland
R v The Prime Minister and Cherry v Advocate General for Scotland, also known as Miller II and Miller/Cherry, were joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue the Parliament of the United Kingdom. Argued before the Supreme Court of the United Kingdom in September 2019, the case concerned whether the advice given by the prime minister, Boris Johnson, to Queen Elizabeth II that Parliament should be prorogued in the prelude to the United Kingdom's withdrawal from the European Union was lawful.
On 24 September 2019, in a unanimous decision by eleven justices, the court found that the matter was justiciable, and that Johnson's advice was unlawful; this upheld the ruling of the Inner House of the Court of Session in Cherry, and overturned the High Court of Justice's ruling in Miller. As a result, the Order in Council ordering the prorogation was null and of no effect and Parliament had, in fact, not been prorogued.
Facts
is a constitutional procedure in the United Kingdom in which the current session of Parliament is terminated so that a new one can be held. The next session is opened during the State Opening of Parliament. While Parliament is out of session, no parliamentary proceedings may take place and any proposed legislation which does not pass prior to prorogation must be re-introduced in the next session of Parliament. Although typically a routine process, there have been several historical cases where prorogation has been controversial.Comparable contemporary events in other Commonwealth countries that were highly controversial include the 2008 prorogation of the Parliament of Canada, which prevented the prime minister of Canada, Stephen Harper, from losing a vote of no confidence; the 2018 Sri Lankan constitutional crisis, in which the Supreme Court unanimously ruled that President Maithripala Sirisena's attempt to dissolve Parliament was unlawful and void; and "The Dismissal", in which the prime minister of Australia, Gough Whitlam, was dismissed by the Governor-General, John Kerr, and Whitlam's successor, Malcolm Fraser, requested the double dissolution of Parliament in advance of a federal election before the Labor-controlled House of Representatives could reinstate Whitlam.
After the 2017 general election, the government, led by Theresa May, announced that the first session of Parliament after the election would last until 2019—normally, parliamentary sessions last a year—to allow for greater parliamentary scrutiny of their Brexit plans. By May 2019, the session had become the longest to sit since the 1640–60 Long Parliament during the English Civil War. The government's preferred Brexit withdrawal agreement was rejected three times in early 2019, which deepened tensions between opposition politicians, the government, and advocates of a "no-deal Brexit"; Brexit was subsequently delayed until 31 October 2019, and May resigned her leadership of the Conservative Party. May was succeeded in the following party leadership election by Boris Johnson, whose campaign team had floated the possibility of prorogation to force a no-deal Brexit despite Parliament overwhelmingly rejecting the proposition.
Further speculation that Parliament could be prorogued led opposition MPs to successfully amend the Northern Ireland Bill to make prorogation during late October functionally impossible by requiring the government to report to Parliament its efforts to restore the Northern Ireland Assembly, which Parliament would then sit—even during prorogation—to debate. In late July, the newly appointed Leader of the House of Commons, Jacob Rees-Mogg, said the government viewed prorogation for political purposes as an "archaic mechanism" which would not be used. Despite this, Johnson still planned to have Parliament prorogued, and sought legal advice in mid-August from his Attorney General, Geoffrey Cox, to that effect.
On 28 August 2019, Jacob Rees-Mogg, in the role of Lord President of the Council, convened a small Privy Council meeting with the Queen whilst she was in residence at Balmoral Castle. The Queen gave her consent to prorogation, to start between 9 and 12 September, and end with the State Opening of Parliament on 14 October. The prorogation ceremony in Parliament took place in the early hours of 10 September 2019 amidst tense scenes in the House of Commons—its Speaker, John Bercow, described such a long prorogation as an "act of executive fiat"—and opposition boycotts of the ceremony in the House of Lords. The announcement of prorogation led to two cases being immediately filed—one in England by Gina Miller and one in Northern Ireland by Raymond McCord—and for the applicants in a third case in Scotland headed by Joanna Cherry to request their case to be expedited.
''Miller'' and ''McCord''
Gina Miller 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. Her application to the High Court was in fact heard by a Divisional Court which comprised Lord Burnett, Sir Terence Etherton and Dame Victoria Sharp, DBE,, three senior judges who would normally sit in the Court of Appeal. 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. 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; 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.''Cherry''
At the end of July 2019, a group of 78 parliamentarians, led by Scottish National Party 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. 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. The litigants sought a ruling that prorogation to avoid parliamentary scrutiny would be unconstitutional and unlawful. 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. 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.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.
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. On 11 September, the three-judge appellate panel at the Court of Session, consisting of Lords Carloway, 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.
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".
Hearing
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". 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, 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 v Secretary of State for Exiting the European Union, 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.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.
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.
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.