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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Miller, R (On the Application Of) v The Prime Minister  EWHC 2381 (QB) (11 September 2019)
Cite as:  EWHC 2381 (QB),  WLR(D) 511
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON SIR TERENCE ETHERTON
MASTER OF THE ROLLS
THE RT HON DAME VICTORIA SHARP DBE
PRESIDENT OF THE QUEEN'S BENCH DIVISION
| THE QUEEN on the application of GINA MILLER
|THE PRIME MINISTER
|THE RT HON THE BARONESS CHAKRABARTI CBE
|THE COUNSEL GENERAL FOR WALES
|THE RT HON SIR JOHN MAJOR KG CH
|THE LORD ADVOCATE
Sir James Eadie QC, David Blundell, Christopher Knight and Richard Howell (instructed by Government Legal Department) for the Defendant
Deok Joo Rhee QC (instructed by Howe & Co Solicitors) for the First Intervener
Michael Fordham QC, Hollie Higgins and Celia Rooney (instructed by Legal Services Department, Welsh Government) for the Second Intervener
Lord Garnier QC, Tom Cleaver and Anna Hoffmann (instructed by Herbert Smith Freehills LLP) for the Third Intervener
The Rt Hon W James Wolffe QC (Lord Advocate), James Mure QC, Alan Maclean QC and Christine O'Neill (instructed by Baker & McKenzie LLP) for the Fourth Intervener
Hearing date: 5 September 2019
Crown Copyright ©
The Lord Burnett of Maldon CJ, Sir Terence Etherton MR, Dame Victoria Sharp P:
Statutory References to Prorogation
The Decision to Prorogue
"14. Finally, politically it is essential that Parliament is sitting before and after the EU Council [17/18 October] – MPs and Peers must be in a position to consider what is negotiated, and hopefully pass the Withdrawal Agreement Bill. If there is no deal, they need to have an opportunity to hear what you have to say, and respond accordingly.
15. From the Government's perspective, it is equally important that key votes associated with the Queen's speech – traditionally seen as matters of confidence – fall at a time when parliamentarians are best placed to judge your programme, and whether to endorse it. If the Queen's Speech is on 14th October, the usual six day debate would mean votes fall on 21st 22nd October. Parliament would have the opportunity to debate your Government's overall approach to Brexit in the run up to the EU Council and then vote on this once we know the outcome of the council. The debate on the Loyal Address can be truncated, but ideally it would be coming to a close anyway immediately after the EU Council.
16. This does mean there will be a vote risk in mid to late October, but that might also have political benefits: those MPs most anxious about no-deal may welcome the Government facilitating key votes on a known date close to the EU Council, and the chance to table amendments, rather than having to find some peculiar mechanism which tears up convention and parliamentary procedure.
17. By contrast a Queen's Speech on 8/9th October would put the key votes at the same time as the EU Council – forcing MPs to make critical decisions on the future of the UK government before they've seen the result of the negotiations.
18. Finally it must be recognised that the situation has become more complicated because prorogation, on its own and separate from a Queen's Speech has been portrayed as a potential tool to prevent MPs intervening prior to the UK's departure from the EU on 31st October. Despite usually being an annual affair, there will be nervousness about prorogation even to start a new session. The dates proposed seek to provide reassurance by ensuring that parliament will sit for three weeks prior to exit, and that a maximum of seven sitting days are lost separate of the period usually set aside for conference recess."
"1. The whole September session is a rigmarole introduced … to show the public that MPs were earning their crust
2. So I don't see anything especially shocking about this prorogation
3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few."
Statutory Control of the Brexit Process
The argument for the claimant
(1) because of the exceptional length of the prorogation, during a critical period, when time is of the essence;
(2) because the Prime Minister provides no reasonable justification on the facts for requiring a prorogation of such exceptional length; and
(3) because the evidence demonstrates that the decision of the Prime Minister is infected by 'rank bad reasons' for the prorogation, namely that Parliament does nothing of value in September and the risk that Parliament will impede the achievement of his policies, both of which demonstrate a fundamental failure on the Prime Minister's part to understand the principle of Parliamentary Sovereignty.
"Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process."
"The source of [the Secretary of State's] powers under domestic law lay not in any statute but in the exercise of prerogative powers for the conduct of foreign relations. That did not make it immune from judicial review, but it is an area in which the courts proceed with caution …"
"The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular upon whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases."
"The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions."
"The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State."
"It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the Crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude".
"The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political."
"We have expressed ourselves cautiously on the materiality of those various differences between the Constitutional Treaty and the Lisbon Treaty. We have done so because there is a further and deeper difficulty facing the claimant in relation to this issue. The court is in a position to determine the extent of factual differences between the two treaties, but how is it to assess the materiality of the differences that it finds? Whether the differences are sufficiently significant to treat the Lisbon Treaty as falling outside the scope of an implied representation to hold a referendum in respect of a treaty "with equivalent effect" must depend primarily, as it seems to us, on a political rather than a legal judgment. There are, as Mr Sumption submitted, no judicial standards by which the court can answer the question. The wide spectrum of opinion, both within and outside the United Kingdom, to which the parties have drawn the court's attention with regard to the extent of similarity or difference between the two treaties serves to underline the point."
"The claimant says that the government had an illegitimate conflict of interest when it made the relevant decisions to enter into the confidence and supply agreement and to announce spending commitments in accordance with it. In my view this is not remotely arguable as a contention of law. In this political context there is no relevant standard of impartiality or disinterestedness which has been breached. The confidence and supply agreement is a political agreement made in a context where some form of political agreement was inevitable and indeed required if a stable government was to be formed. All political parties seek to promote particular interests and particular interested points of view. That is the nature of the political process, and the disciplines to which they are subject are the usual political ones of needing to be able to command majorities in the House of Commons on important votes and of seeking re-election at the appropriate time. The law does not super-impose additional standards which would make the political process unworkable."
(1) One of the fundamental principles of our constitution is Parliamentary Sovereignty, which can be traced back to the Case of Proclamations (1611) 12 Co Rep 74; Miller No. 1 at  and the other cases mentioned in Miller No. 1 at ,  and , British Railways Board v Pickin  AC 765 at 798H-799A, the Bill of Rights 1688 and the Scottish Claim of Right Act 1689.
(2) Parliamentary Sovereignty entails the right of Parliament to make any law it sees fit (Miller No. 1 at ), and both the Government and the Prime Minister are subordinate to Parliament (The Cabinet Manual at - and Miller No. 1 at ). Parliament has a constitutional responsibility to hold the government to account.
(3) There is an inextricable link between Parliamentary Sovereignty and the Rule of Law. That is because Parliament makes laws, courts exist in order to ensure (among other things) that the laws made by Parliament are applied and enforced, including ensuring that the Executive carries out its functions in accordance with the law. The people have a right to unimpeded access to the courts, without which the work done by Parliament may be rendered nugatory and the democratic election of Members of Parliament may become a meaningless charade (R (UNISON) v Lord Chancellor  3 WLR 409 at ).
(4) Irrespective of any political accountability of the Prime Minister and of the Government to Parliament, the courts have a constitutional duty fundamental to the Rule of Law to enforce rules of constitutional law (see the judgment of the Divisional Court in Miller No. 1 at  EWHC 2768 (Admin),  AC 61 at  and R v Secretary of State for the Home Department, ex p. Fire Brigades Union  2 AC 513 at 572E-H).
(5) Prorogation may, depending on the facts and circumstances of the case, amount to a breach of Parliamentary Sovereignty insofar as it prevents Parliament from deciding what the law of the land should be and is not reasonably necessary to fulfil the proper objective of prorogation (adopting the test in the UNISON case at ).
(6) This provides a proper legal measure which the courts can apply to determine on the facts of the present case the legality of the advice on prorogation. It is different from dissolution to enable a general election to take place, which was a personal prerogative of the Crown at common law prior to the Fixed-term Parliaments Act 2011.
(7) Applying that measure, the advice was unlawful and an abuse of power because Parliament will be silenced for far longer than is necessary to prepare for the Queen's Speech. That is the purpose, or at least the stated purpose, for the prorogation. No explanation has been given by the Prime Minister in these proceedings which justifies the length of the prorogation. It is a reasonable inference from the evidence, including the fact that different justifications have been given publicly by the Prime Minister for the prorogation and its length, that the advice to Her Majesty was motivated or at least influenced by improper considerations. They showed a misunderstanding of Parliamentary Sovereignty and Parliament's role, namely its function of considering, debating and enacting such laws as it sees fit. Such improper considerations included the Prime Minister's dislike of the views of Members of Parliament, his concern that Parliament might undermine the Government's strategy in negotiating an exit deal and his impression of Parliament as a potential threat to his policy of exiting the European Union whether or not a deal can be done – "do or die, come what may".
(8) It is not, therefore, necessary in the present case to say how long the prorogation should be to be lawful and it is irrelevant that there may be some limited opportunity for Parliament to conduct its affairs prior to 31 October 2019.
(9) The fact that the decision to prorogue was incorporated in an Order in Council does not make it non-justiciable (Bancoult at , ,  and ). The order could be quashed or revoked and Parliament recalled, but in any event the Prime Minister accepts that, if the advice to Her Majesty was unlawful, he will take the necessary steps to comply with the terms of any declaration made by the court making a quashing order unnecessary.