High Court in London issues full reasons for rejecting legal challenge against prorogation of Parliament

Businesswoman Gina Miller had argued that Prime Minister Boris Johnson’s advice to HM the Queen that the UK Parliament should be prorogued from a date between 9 and 12 September until 14 October 2019 was “unlawful”.

But the three senior judges hearing the case unanimously dismissed the application for judicial review after ruling that the claim was “non-justiciable”.

‘Unlawful abuse of power’

Lord Chief Justice Burnett, Master of the Rolls Sir Terence Etherton and Dame Victoria Sharp, President of the Queen’s Bench Division, heard that at a meeting of the Privy Council on Wednesday 28 August 2019, Her Majesty, on the advice of the Prime Minister, ordered that the UK Parliament be prorogued from a date between 9 and 12 September until 14 October 2019.

On the same day the claimant applied for judicial review of that decision, seeking a declaration of the court that the decision of the Prime Minister to tender this advice was unlawful.

The court subsequently gave permission to Baroness Chakrabarti, the Shadow Attorney General on behalf of the official opposition, the Rt Hon Sir John Major KG CH, the former Prime Minister, the Counsel General for Wales on behalf of the Welsh Government and the Lord Advocate on behalf of the Scottish Government – all of whom supported the case for the claimant – to intervene in writing in the proceedings.

The claimant’s case was that the Prime Minister’s advice to Her Majesty to prorogue Parliament is an “unlawful abuse of power” because it was substantially influenced by “improper considerations” and “breached the principle of parliamentary sovereignty” by impeding the ability of Parliament to enact legislation as it sees fit on issues relating to the arrangements for the United Kingdom to leave the European Union on the existing deadline of 31 October 2019 and to perform Parliament’s “scrutiny” function of holding the Government to account.

It was argued that there is an inextricable link between parliamentary sovereignty and the rule of law and that, irrespective of any political accountability of the Prime Minister and the Government to Parliament, the courts have a “duty” to enforce the constitutional principle of parliament sovereignty, which entails the right of Parliament to make any law it sees fit and to hold the Government to account.

The claimant submitted that 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, which was the purpose stated by the Prime Minister for the prorogation; and, further, it was a reasonable inference that the advice to her Majesty was improperly motivated or influenced by the Prime Minister’s 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, all of which demonstrated a fundamental misunderstanding by the Prime Minister of parliamentary sovereignty and parliament’s role.

‘Non-justiciable’

However, the judges concluded on well established and conventional grounds that the claim was not capable of being determined by the courts.

The court’s judgment stated: “The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.

“Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review.”