One Last Chance to Save the Case: legal challenge to the prorogation of the British Parliament rejected by the High Court

September 9, 2019

3 min read

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What's going on here?

High Court judges have rejected Gina Miller’s case arguing that Boris Johnson’s suspension of Parliament was “an unlawful abuse of power” but permitted an immediate appeal to the Supreme Court on 17th September due to the important points of law at stake.

What does this mean?

On 28th August, Boris Johnson announced that Parliament would be prorogued (a process where Parliament is suspended) for 5 weeks before the Queen’s speech on 14th October. Opponents to the Prime Minister’s announcement argued that he was limiting the amount of time for parliamentary scrutiny of the Brexit process. Johnson himself does not have an electoral mandate and these events have led to Gina Miller, the businesswoman who successfully won a case in 2017 that prevented article 50 being triggered without a vote in Parliament, to seek legal action. She believes that this prorogation is “an unlawful abuse of power”, whilst Johnson’s lawyers argue that this is a purely political matter, not a legal one.

The former British Prime Minister (1990-1997) John Major, Labour’s deputy leader Tom Watson and the leader of the Liberal Democrats Jo Swinson quickly joined Gina Miller’s judicial review. Despite support from high-profile political figures, top barristers from Blackstone Chambers and solicitors from Mishcon de Reya and Herbert Smith Freehills, the case was rejected by Lord Justice Burnett. Miller said she was “very disappointed with the judgment” but added that she was “pleased that the judges have given us [her team] permission to appeal the Supreme Court” on 17th September.”

The Supreme Court will be considering an unprecedented area of law:  there are no laws on how long a prorogation can last and when that would be considered “an unlawful abuse of power”. Whether Parliament has “sufficient” time to pass adequate scrutiny over Brexit as a consequence and to what extent the issue is political or legal will be central to the Supreme Court’s decision.

What's the big picture effect?

Miller said that she “would not give up the fight for democracy”, and she is not alone. In Scotland, a cross-party group of 75 parliamentarians (led by the SNP’s Joanna Cherry and the Liberal Democrat’s Jo Swinson) filed a case that questioned the legality of Johnson’s prorogation. This was rejected on 4th September by Lord Doherty of the Court of Session in Edinburgh. He ruled that Johnson’s decision to prorogue Parliament was not justiciable (meaning that it’s not a matter of law) but rather for politicians to decide. An appeal was made immediately after the ruling and the decision of this appeal is not expected until 11th September.

In Belfast Raymond McCord, a campaigner for victims of the Troubles in Ireland, also launched a case arguing that Parliament’s prorogation was illegal and threatened the Good Friday Agreement. Even though it looks like opposition parties will succeed in passing a bill that will ensure that a no-deal Brexit is avoided, McCord is still prepared to start his case.

If the Supreme Court does make a landmark ruling that Boris Johnson is guilty of “an unlawful abuse of power”, then not only Johnson but also the Queen will be in the spotlight. If this were the case, the Queen would have legitimised an illegal act that challenges the UK’s constitution. For now, we shall have to wait to find out the Supreme Court’s verdict.

Report written by Will Holmes

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