Thread by @AndrewChapman50

Oxford Law Professor John Finnis on the Supreme Court Judgement, not mincing his words:

'wholly unjustified by law... no plausible reason for transferring the conventions about prorogation into the domain of justiciable law... a historic mistake..'

policyexchange.org.uk/wp-content/upl…

Finnis: Prorogation is 'self-evidently' a proceeding in Parliament. By nullifying it, the Supreme Court acted against the Bill of Rights 1689, which provides that such proceedings ought not to be impeached or questioned in any court:

The potential violation of the Bill of Rights did not arise directly, as I understand it, in connection with the first remedy that Gina Miller herself was pursuing, namely a declaration that the Prime Minister's advice was unlawful:

supremecourt.uk/docs/written-c…

since clearly the

advice itself is not a proceeding in Parliament. But the Inner House of the Court of Session in Scotland went further and declared that the prorogation itself was unlawful, null and of no effect, as the Supreme Court recalled:

supremecourt.uk/cases/docs/uks…

The government's position, as the Judgement observes, was that Article IX of the Bill or Rights prevented the Court making a declaration against the prorogation itself:

The Supreme Court, however, came to the conclusion that prorogation 'cannot sensibly be described as a “proceeding in Parliament”':

The government's argument that Article IX precluded the prorogation itself being nullified is found in summary in a single paragraph on Relief in its Written Case:

supremecourt.uk/docs/written-c…

The Judgement drew attention to a 2010 Supreme Court case (R v Chaytor) where it was ruled that MPs' alleged false expenses claims were not protected by Article IX, which was concerned rather with freedom of speech and the core business of Parliament :

The Chaytor judgement contained an investigation of the reach of the term 'proceedings in Parliament':

supremecourt.uk/cases/docs/uks…

Erskine May is quoted at 28 to the effect that there is no exhaustive definition, but that the primary meaning is a 'formal action' taken by the House in its collective capacity:

Two criteria may I think be found in R v Chaytor, 47:

1) Is the matter to do with freedom of speech and debate?

2) Is it part of the core or essential business of Parliament?

It's not clear to me whether both criteria have to be satisfied or only one:

Whether only one criterion or both has to be satisfied is left unresolved (to my mind) in the next paragraph also, with no conjunction to clarify the relationship between the two:

The third sentence of the para, however, seems to imply (the para lying in the section on Article IX) that the Article may apply to 'any of the varied activities in which [MPs] indulge that bear in one way or another on their parliamentary duties':

I find it unsurprising that an investigation as to whether alleged false expenses claims are a proceeding of Parliament does not establish definitively whether prorogation is such a proceeding. It is surely an essential business of Parliament, on the one hand, but not perhaps a

matter of freedom of speech and debate on the other. The government in its 'Further Submissions on Relief', quotes the former criterion but not the latter:

assets.publishing.service.gov.uk/government/upl…

Then, to demonstrate that this single criterion is satisfied, it advances several reasons why the third and final stage of the prorogation process, the reading of the Commission to both Houses of Parliament by the Lords Commissioners:

should be considered part of the 'core and essential business of Parliament':

Some of these arguments can be advanced directly in support of the reading of the prorogation Commission being a proceeding in Parliament. First of all, it takes place in the Chamber of the House of Lords:

Second (the government says), it is recognised as part of the parliamentary process by House of Lords Standing Order 76:

Standing Order 76, 'Proroguing the Parliament at close of session', is indeed described as a proceeding in the section heading on the Parliament web page:

parliament.uk/business/publi…

Third, this 3rd stage of prorogation is considered to be part of parliamentary process in Erskine May:

Erskine May calls prorogation a 'procedure', and moreover, the terms of the commission speech are entered in the 'Votes and Proceedings':

erskinemay.parliament.uk/section/6501/p…

The Votes and Proceedings for 9 September 2019 have been 'Corrected consequent to the Speaker’s Statement of 25 September 2019', but may be taken to have previously contained the Commission speech:

publications.parliament.uk/pa/cm201719/cm…

Fourth, the Lords Commissioners are members of the House of Lords:

Fifth, the reading of the Commission and its effect is recorded in Hansard:

The record of the reading of the prorogation Commission has not been expunged from Hansard:

hansard.parliament.uk/Lords/2019-09-…

Sixth, the prorogation ceremony may contain the grant of Royal Assent to Bills which have completed their passage through both Houses. In this case, Royal Assent was granted to the Parliament Buildings (Restoration and Renewal) Act 2019:

Indeed it is a 'Commission for Royal Assent and Prorogation':

hansard.parliament.uk/Lords/2019-09-…

The point the government is making, I think, is that if the granting of Royal Assent is a proceeding in Parliament, then prorogation must surely be also, since they are all of one. We now come to what may be the decisive point.

In Barclay v Lord Chancellor [2014 (not 2015)], the Supreme Court held at para 46 (as the government interpret their words) that the granting of Royal Assent was a proceeding in Parliament:

The case concerned the granting of Royal Assent to a law passed in Sark, one of the Channel Islands. Judgement was given by Lady Hale, the other 4 judges agreeing. The appellants had argued that the English courts could not interfere in the process of granting Assent to Sark law

any more than they could to granting Assent to Acts of the UK Parliament. Hale sees strength in the argument but observes that the analogy is not exact, since there is something different about the UK case, viz. that 'the Queen in Parliament is sovereign' and that Parliamentary

procedures cannot be questioned in the Courts. She must I think be at least 'echoing' (Finnis, see below) Article IX of the Bill of Rights, which forbids the questioning of proceedings of Parliament. Here it is again:

legislation.gov.uk/aep/WillandMar…

Note that the 'Freedome of Speech and Debates' is differentiated from 'Proceedings' (or possibly Freedom of Proceedings) and both are protected. So it can hardly be the case that it is only freedom of speech that is protected. In the prorogation Judgement (Miller II), Lady Hale

emphasises the protection of freedom of speech and debate, which she says is the 'principal matter to which Article 9 is directed':

supremecourt.uk/cases/docs/uks…

At para 68, she argues that since the prorogation Commissioners have no freedom of speech and since (perhaps in consequence) this is not the core business of Parliament, then prorogation is not a 'proceeding in Parliament':

But the same is true of the granting of Royal Assent at prorogation. The Commissioners have no more freedom of speech in this than they do announcing the prorogation. Lady Hale can't have it both ways.

Moreover Hale's statement in Barclay that sovereignty lies with 'the Queen in Parliament' does not seem to sit easily (it seems to me) with her presenting the Queen in Miller II as outside Parliament, prorogation being 'imposed upon [Members] from outside':

The Supreme Court in Miller I [2017] pointed out that it is 'the Crown in Parliament' which lays down the law, Royal Assent being required before a Bill becomes statute:

supremecourt.uk/cases/docs/uks…

Finnis finds that the Miller II judgement proceeds with 'complete indifference' to the part played by the Queen in the making of law. The Crown should instead be viewed as an 'integral part of Parliament':

policyexchange.org.uk/wp-content/upl…

The Crown's consent is also required for certain Bills, Finnis continues, but this constitutional rule is not justiciable, being protected by Article 9 of the Bill or Rights. 'The Crown’s actions in Parliament are proceedings in Parliament':

It is no answer, Finnis goes on, to say that the Crown's officers in Parliament have no freedom of speech, or that their actions are not part of the essential business of Parliament and so can be treated other than as proceedings in Parliament:

We need a response to HMG's argument that since the granting of Assent had been said by the Supreme Court in Barclay to be a proceeding in Parliament, and since prorogation may be announced by the same Commission which grants Assent, then prorogation is also such a proceeding:

The discrepancy is stark. In 2014, in the Supreme Court, such actions by the Crown are procedures of Parliament itself which, echoing Article IX of the Bill of Rights, 'cannot be questioned in the courts':

while in 2019, such actions by the Crown in Parliament 'cannot sensibly be described' as proceedings in Parliament, and can be questioned and even nullified by the Court, even though they take place within Parliament itself:

and even though, one may add, the most recent (non-nullified) prorogation of Parliament, which took place on 12 May 2016, is recorded in the House of Commons 'Votes and Proceedings' for that day:

publications.parliament.uk/pa/cm201516/cm…

After the sitting was suspended, Black Rod summoned the House to the House of Lords, where the Commission was read for granting Assent to various Acts and for proroguing Parliament:

After the reading of the Queen's Speech, the Leader of the House of Lords and Lord Privy Seal prorogued Parliament 'in Her Majesty's name'.

And then, as recorded in 'Votes and Proceedings', there were:

'other proceedings'.