On 28 August Gina Miller applied for judicial review of the decision to prorogue Parliament, seeking a declaration of the court that the Prime Minister's decision to tender this advice was unlawful. On 6 September, the High Court of England and Wales granted Ms Miller permission to bring the application but then unanimously dismissed the claim.
The Summary of the case explained the judges' reasoning
,: "the essential characteristic of a political issue is the absence of judicial or legal standards by which to assess the legality of the Executive's decision or action.The refusal of the courts to review political questions is well-established."
The court continued, "Both the decision of the Prime Minister that Parliament should be prorogued at the time and for the duration chosen and the advice given by the Prime Minister in the present case were inherently political in nature and there are no legal standards against which to judge their legitimacy. There is no legal measure of the length of time between Parliamentary sessions, nor even a constitutional convention which governs that matter, albeit constitutional conventions are not justiciable. Parliament may be prorogued for various reasons, including political reasons, and there is no statute, law or convention which requires Parliament to sit in constant session."
The judges stated, "The ability of Parliament to move with speed when it chooses to do so undermines the underlying premise of the case for the claimant that prorogation would deny Parliament the opportunity to do precisely what it has now done."
"There is another fundamental objection to the claimant's expanded concept of Parliamentary Sovereignty. This is that is has been fashioned to invite the judicial arm of the state to exert hitherto unidentified power over the Executive branch of the state in its dealing with Parliament."
The High Court concluded, "The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the State; the relationship between the Executive and Parliament is governed in part by statute and in part by convention. Standing Orders of both Houses elaborate the procedural relationship between the Executive and Parliament. This is territory into which the courts should be slow to intrude by recognising an expanded concept of Parliamentary Sovereignty."
On 11 September the Inner House of the Court of Session in Scotland declared the prorogation illegal. The Court Summary said: "Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference." https://www.scotsman.com/news/politics/in-full-scottish-court-of-session-rules-boris-johnson-s-suspension-of-parliament-unlawful-1-5002045
Judges are supposed to take the facts and obey the law, not 'infer' (speculate) what was intended by the prorogation of the longest session of Parliament for 400 years, the accommodation of the Party conference season and the presentation of the new Prime Minister's government's programme. The judges noted that a no-deal exit would have 'adverse effects', which is surely not a matter for judges to consider.
On 24 September the Supreme Court unanimously ruled that the prorogation was unlawful, null and of no effect'. In paragraph 3 of their judgment, the judges stated, "Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council." But no longer is this the case. The judges have created a new law, whereby the Supreme Court decides when Parliament should be prorogued.
Previously, the law allowed the government to decide when and for how long to prorogue parliament. This did not mean that the government was somehow 'above the law'. But now the Supreme Court has given itself the prerogative power formerly exercised by the Crown on the advice of the Privy Council.
In paragraph 7, the Court stated, "As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis."
This is not accurate. Our majority democratic decision in 2016 should indeed have been 'treated as politically and democratically binding'. But in fact, successive governments and Parliament have not acted on that basis. On the contrary they have – despite their pledges - acted to dishonour our decision and have done their worst to overturn that decision.
In paragraphs 7-14 the Court gave an account of the 'run-up to this prorogation', concluding in paragraph 14, "Yet it was also clear that a majority of the House of Commons would not support withdrawal without an agreement." So, the Court was fully aware of the political context and political implications of their judgment.
In paragraph 32 the Court commented on the 17th century dispute between the Stuart kings and Parliament, noting that in 1611 the court concluded that "the King hath no prerogative, but that which the law of the land allows him". The present-day Court commented that this was 'indicating that the limits of prerogative powers were set by law and were determined by the courts.' Not so, Parliament not the courts set the limits of prerogative powers.
In paragraph 57 the Court stated, "A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019. Whether or not this is a good thing is not for this or any other court to judge. The people have decided that."
The Court went on, "But that Parliament, and in particular the House of Commons as the democratically elected representatives of the people, has a right to have a voice in how that change comes about is indisputable. And the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons."
Parliament has already made its voice heard, and its right to have a voice in how a change comes about is not the same as having a right to veto that change.
In paragraph 68 the Court stated, "The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a "proceeding in Parliament". So, a process taking place in the House of Lords is not taking place 'in Parliament'. Is the House of Lords no longer in Parliament then?
As the Court acknowledged, on Brexit 'the people have decided'. But the Court's judgment is playing a supporting role in the EU campaign to overturn our decision.