The most significant constitutional judgment in your lifetime? Understanding Scotland’s Court of Session ruling and Supreme Court Appeal

September 25, 2019

4 min read

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What's going on here?

On 11 September 2019, the Scottish Court of Session ruled that the Prime Minister’s prorogation of Parliament for a period of 5 weeks between 9 September 2019 and 14 October 2019 was unlawful. 

The Government’s appeal against this decision was heard in the Supreme Court last week. At the same time, the Supreme Court also considered an appeal from a challenge made in the English High Court in which it was held the matter was non-justiciable.

On 24 September 2019 the Supreme Court unanimously upheld the decision of the Scottish Court, rejected the decision of the English High Court and found the prorogation unlawful.

What does this mean?

On 28 August 2019 Boris Johnson asked the Queen to prorogue Parliament from 9 September 2019 to 14 October 2019. Prorogation is a formal mechanism used to end a parliamentary session. During this time no debates or votes are held in Parliament and all business stops. 

Whilst the prorogation of Parliament itself is not unusual, it was the duration that Boris Johnson requested, a period of 24 working days, that led some to question whether this was actually an attempt to prevent Parliament preparing for a no-deal Brexit. With the UK due to leave the European Union on 31 October 2019, returning on 14 October left little time for MPs to block a no-deal Brexit. 

Anti-Brexit campaigner Gina Miller brought a case in the English High Court. She argued that the Prime Minister’s advice to the Queen to prorogue Parliament for such an extensive duration at a time of political significance was unlawful. Miller believed the purpose of the prorogation was to “prevent or frustrate Parliament from holding the government to account … and passing legislation that would require the Prime Minister to take steps to avoid leaving the European Union without an agreement” (Para 19).

On 6 September 2019, the High Court rejected the case on the basis that the Prime Minister’s advice to suspend Parliament for 24 working days was an inherently political matter that could not be challenged in the courts, and consequently was lawful. 

A similar case to Miller’s was brought in the Scottish courts, led by Joanna Cherry MP, again challenging the Prime Minister’s advice to the Queen about the prorogation. On 11 September 2019, the Scottish Court of Session found that the prorogation was improper and unlawful, finding that the true purpose of the prorogation was “stymying parliament”.  Whilst each differing in their reasoning, the judges all highlighted the importance of ensuring sufficient parliamentary scrutiny of the executive in addition to the standards of behaviour reasonably expected of public authorities.

What's the big picture effect?

The Government appealed the Scottish decision and defended the decision of the English High Court. Gina Miller’s legal team appealed the decision of the English High Court. 11 Justices of the Supreme Court heard appeals during Monday 16 September to Wednesday 18 September 2019.

Lord Pannick QC (representing Gina Miller) made a number of notable submissions to the Supreme Court which are summarised below:

  1. The decision to prorogue Parliament was made in accordance with factors inconsistent with the concept of parliamentary sovereignty, including “[the Prime Minister’s] belief that Parliament does nothing of value at this time of year and his concern that Parliament might take steps which would undermine the government’s negotiating position with the EU”. 
  2. The duration of the prorogation was the longest in the last 40 years. Pannick raised the argument that there could be no review of any subsequent decision to prorogue Parliament in the future, even for a much longer duration, if the English High Court decision was upheld. 
  3. Adverse inferences could and should be drawn from the absence of a witness statement (accompanied by a Statement of Truth) from the Prime Minister or other senior cabinet minister about the decision to advise a five-week prorogation period. 

Ultimately these arguments persuaded the 11 judges of the Supreme Court, who unanimously ruled on 24 September 2019 that the advice provided by the Prime Minister to the Queen to prorogue Parliament for a period of five weeks was unlawful. The judgment, states that “the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account”. Importantly, the Supreme Court found no reasonable justification for the extensive duration of this particular prorogation, which Lady Hale referred to as an “extreme effect on the function of our democracy”.

Accordingly, the prorogation is deemed null, void and of no effect. Parliament has not been prorogued and the Supreme Court suggested that the Speaker of the House of Commons and the Lord Speaker can take immediate steps to reconvene both houses. Parliament has now reconvened (on Wednesday 25 September).

It remains to see what direction the House of Commons will move in when business resumes. Calls have been made for the Prime Minister to resign in light of the Supreme Court decision and others are calling for a general election. The Prime Minister has commented that he “profoundly disagrees” with the ruling but will respect it. 

Earlier this week the Prime Minister told critics to “donnez-moi un break” (let me have a break). After this ruling from the Supreme Court confirming his actions were unlawful, plus vast amounts of scrutiny from within his own party and the opposition, a break seems a particularly remote possibility for the Prime Minister.

Report written by Rebecca Barry

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