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Good morning from R (Miller) v Prime Minister, in the High Court of England and Wales (Divisional Court). Gina Miller represented by Lord Pannick QC. PM represented by Sir David Eadie QC. Judges are Lord Burnett CJ, Sir Terence Etherton MR, Dame Victoria Sharp President QBD.
Lady Chakrabarti (intervener) is in court. Sir John Major (intervener) is not. All interveners are making written submissions only.
Lord Pannick opens the proceedings with a bon mot about his junior counsel, Warren Fitt.
Pannick begins with historical information about past prorogation lengths. Never longer than three weeks in past 40 years.
Correction: Sir James Eadie QC. Apologies
Pannick: PM’s advice to HM is an unlawful abuse of power. It breaches the legal principle of parliamentary sovereignty. It removes ability of parliament to pass such legislation as it sees fit relating to leaving EU, when time is of the essence because of the 31 October deadline.
Pannick: this court is not concerned with political issues. Our complaint is that prorogation of 5 weeks prevents parliament from dealing with issues as it sees fit. No problem with PM ending this session. But PM not entitled to close parliament for 5 weeks without justification.
Pannick cites document, already seen in the Scottish court, in which PM says he doesn’t see anything “shocking” in this prorogation. He says PM doesn’t understand constitutional role of parliament. The advice to HM was therefore an abuse of power.
Pannick: this PM is proroguing parliament with no justification and by reference to improper considerations. This court has power and duty to ensure no abuse of power of PM in these respects. Court must have jurisdiction to consider these matters. PM doesn’t have unfettered power
Pannick: this court is not being asked to express any view about the wisdom or terms of Brexit. If prorogation declared unlawful, it will be for parliament to decide what to do.
Having introduced his case, Pannick moves into details. Noteworthy that none of the judges has asked him a single question so far. They are content to allow him to develop the case in accordance with the written submissions he has already lodged.
Turning to sovereignty, Pannick cites the first Miller judgment from the @UKSupremeCourt. “Parliamentary sovereignty is a fundamental principle of the UK constitution”. Next cites Case of Proclamations from 1611: Coke CJ tells the King that the King cannot change the common law.
@UKSupremeCourt Pannick: principle of parliamentary sovereignty has led courts to recognise exclusive right of parliament to regulate its own proceedings. Cites Lord Reed’s judgment in the Unison case about tribunal fees: parliament exists to make laws and courts exist to ensure laws are applied
@UKSupremeCourt Pannick: hence people must have unimpeded access to the courts. Unison case recognises that the rule of law and sovereignty of parliament will be enforced by the courts. So prorogation of parliament may involve breach of principle of parliamentary sovereignty.
@UKSupremeCourt Pannick: Lord Reed, in Unison case, held that individuals must have access to courts. So courts must have power to ensure that parliament is not arbitrarily prevented from sitting.
@UKSupremeCourt Pannick: the Bill of Rights 1688 and the Claim of Right Act 1689 (Scotland) recognise the requirement that parliament must sit frequently. This is a legal principle engaged when the PM advises HM to prorogue. Breach must depend on circumstances of the case.
@UKSupremeCourt Pannick moves to second topic: abuse of power. PM has presented no justification for prorogation of this length. Test derived from the Unison case: PM has a prerogative power but court will decide whether it has been exercised in a proper way. It’s not necessary to have 5 weeks.
@UKSupremeCourt Pannick: PM’s handwritten note is fatally infected by his failure to understand that parliament is sovereign. It’s not the role of the executive to prevent parliament from fulfilling its functions because PM takes a derogatory view of MPs. He sees parliament as a potential threat
@UKSupremeCourt Pannick: it’s not for the courts to consider whether the PM is right in his political assessments. But the courts can rule that the PM can’t take into account his view that parliament is a nuisance. He cites interviews in which the PM says that MPs debating Brexit hinder a deal.
Etherton MR asks Pannick QC whether there can be other justifications for prorogation, apart from a Queen’s Speech. Pannick says there are but says each decision must be judged on its merits.
Pannick: decision to prorogue infected by rank bad reasons. Advice to HM manifest abuse of power.
Pannick moves onto jurisdiction (key issue here). Prerogative powers have been justiciable since the GCHQ case [1985] AC 374. An Order in Council made by HM on advice from the Privy Council is equally justiciable, he argues.
Pannick: the dissolution of parliament is a personal prerogative of the sovereign. That’s different from prorogation, on which the Queen must follow the advice of her ministers.
Second correction: Pannick said the dissolution of parliament WAS a personal prerogative of the sovereign until the Fixed-term Parliaments Act 2011. Apologies.
Pannick says more prerogative powers have been regarded as amenable to judicial review since the GCHQ case: the grant of pardons, mercy, refusal of passports, foreign relations/diplomatic representations — but the courts must “proceed with caution”.
Lord Burnett asks Pannick whether he says all prerogatives are justiciable. Pannick says that if a PM decides to declare war on Ruritania, no court would review such a decision — unless there is a statute or some public policy statement that restricts the PM’s discretion.
Pannick: the courts must exercise caution — sometimes extreme caution — but they can review all prerogative powers. But he accepts that personal prerogatives, eg appointment of ministers, are not covered. And there are areas where it’s inconceivable that courts will interfere.
Pannick: there should not be a separate principle of non-justiciability. In any event, executive power cannot be unlimited and the courts will enforce constitutional rules in the same way as other laws.
Pannick: court cannot say it has no jurisdiction if he has established the breach of a relevant legal principle.
Pannick deals with PM’s objections. PM says this is a matter of high policy and politics and so the court has no jurisdiction. Pannick says it may well involve those but courts still have jurisdiction. His example is the first Miller case, which involved an issue of law as well.
Pannick: PM says there are no standards by which the courts can assess the lawfulness of ministerial advice on prorogation. He replies that this is no different from any other public law case and that’s why he disagrees with Lord Doherty’s Court of Session judgment yesterday.
Pannick: I don’t accept that accountability to parliament — another of the PM’s arguments — is an answer to my claim.
He says he does not accept that the NI (EF etc) Act 2019 requires parliament to sit during the prorogation that has been announced.
He says he does not accept that the NI (EF etc) Act 2019 requires parliament to sit during the prorogation that has been announced.
Pannick: PM needs to confront the breadth of powers for which he contends. If correct, why couldn’t he advise prorogation for a longer period? PM’s only response is to accept that this would be unconstitutional. PM denies that it would be unlawful. But Dicey has been superseded.
Pannick concludes his submissions after two-and-a-half hours. Sir James Eadie QC for PM begins with non-justiciability.
Eadie QC for PM: parliament specifically preserved the prorogation prerogative when it passed the Fixed-term Parliaments Act 2011, section 6 (and previously in 1707). This prerogative power has not been put on a statutory footing. It has merely been recognised by parliament.
Eadie: the question for this court is whether a specific issue is justiciable, not whether a particular power is justiciable.
Eadie: not all exercises of the prerogative are justiciable. It depends on the subject matter. Some are unsuitable for judicial intervention. Some are not justiciable. The test is not merely whether it’s the exercise of a power.
Eadie: it’s true that the courts have reviewed more prerogatives than before. That’s because these impinged on people’s rights — as in first Miller case. But power is not subject to judicial review just because it’s power. It turns on the subject-matter. Some are non-justiciable.
Eadie QC for PM is now arguing that the prorogation of parliament is inherently political and hence non-justiciable. He cites Wheeler v PM [2008] EWHC 1409 in which the court accepted that there were no judicial standards by which it could consider if there should be a referendum
Eadie QC: the rationale for non-justiciability of prorogation is there are no judicial or manageable standards to test its lawfulness and it would not be constitutionally appropriate for the courts to die so.
Court adjourns until 2pm.
Court adjourns until 2pm.
Hearing resumes: R (Miller) v Prime Minister, in the High Court of England and Wales (Divisional Court). Gina Miller represented by Lord Pannick QC. PM represented by Sir James Eadie QC. Judges are Lord Burnett CJ, Sir Terence Etherton MR, Dame Victoria Sharp President QBD.
Eadie: decisions about prorogation are inherently political in nature. They involve managing the government’s legislative agenda; when it might be appropriate to interrupt existing business and carry over legislation; how to prepare for a new legislative agenda; etc.
Eadie: parliament has specified circumstances in which it may sit while it stands prorogued: Acts passed in 1707; 1996; 2004; 2019. Lord Pannick claims parliament is “unable” to legislate while prorogued. How is a court to judge whether parliament would have wished to legislate?
Eadie: how is a court to decide how long parliament should sit? What factors might justify a longer or shorter prorogation? Is it appropriate for a court to be setting these rules? We say not.
Eadie moves on to “recent events”. There will be sittings in which parliament can legislate as it chooses. Section 3 of the NI (EF etc) Act 2019 indicates that parliament has made specific provision to sit, during prorogation, when it chooses to do so. Only parliament can judge.
Eadie: the court is being asked to set additional standards. How can it properly do so?
Eadie: claimants say that parliament was being deprived of the chance to legislate on a no-deal Brexit. As events have shown, parliament gas had the opportunity to do just that. Parliament can react as it sees fit, however unwelcome to the government.
Eadie: this is the political maelstrom in which the court is being asked to get involved. It looks likely that the [anti-no-deal Brexit] bill will pass through parliament. This might be thought to render the whole proceedings rather pointless.
Eadie: Pannick says proroguing can’t be exercised in a manner that impedes parliamentary sovereignty. But sovereignty provides no answer to the problem the courts face in deciding how long parliament should sit. Prorogation has been left by parliament to ministerial discretion.
Eadie: none of the cases cited by Pannick came close to providing a specific policy that this court could adopt. The Unison case doesn’t say whether parliament should sit at a particular time.
Eadie: at the heart of this case is the claimant’s concern that parliament would be disabled from doing the very thing it has been doing over the past few days. Parliament has passed a plethora of legislation on Brexit. It was always going to sit this week.
Eadie: there is nothing unlawful in prorogation being based on reasons some of which are political. The PM judged that parliament would have the opportunity to consider no-deal Brexit.
Eadie completes his submissions. Pannick replies.
Pannick: if there are no standards, the courts cannot intervene. But if there are, there can be no basis for denying jurisdiction. We need to persuade the court that exercise of the prerogative amounts to abuse of power in the context of a relevant legal principle, sovereignty.
Pannick: this case is not concerned with whether parliament is prorogued. It is about the length of prorogation. How can the courts decide this, asks Eadie. It’s the same standards as the court decides in other judicial review contexts…
Pannick: … the court does not provide an algorithm. It decides whether the decision-maker has acted unlawfully in any given case. The court focuses on whether it’s satisfied that what has been done is an abuse of power. “How long?” Is not the right question.
Lord Burnett to Pannick: then what are you asking? Pannick: to declare that this period is too long. Burnett: would we effectively quash the decision and ask for it to be reconsidered? Pannick: we seek a declaration that a 5-week prorogation was an abuse of power...
Pannick: … it would then be up to the decision-maker to retake the decision a lawful manner. It’s not the role of the court to lay down the parameters. The PM would retake his decision and we would hope he would choose a much shorter period. We don’t ask you to set a period.
Pannick completes his reply. Court will rise for a few minutes and then tell us what’s going to happen. @PA has requested a copy of the PM’s handwritten note and the advice it covers and Eadie has no instructions yet on whether it can be disclosed.
@PA Miller: Court will adjourn until 1000. If we can, we will announce our decision tomorrow with reasons to follow.
@PA Miller: Lord Burnett says court is assuming that either or both parties would seek to take the case direct to @UKSupremeCourt
Court has adjourned until 1000 tomorrow. Decision may (I suspect will) be given then, with reasons to follow. Losing side likely to appeal to @UKSupremeCourt which is expecting to hear the appeal on 17 September, along with appeal from Court of Session.
Thanks to readers for kind words today and apologies for the occasional slip-up.
