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A legal case is heard, in the country it is brought forward in. Public law governs the relationship between individual citizens and the state bringing a case forward for the countries of the UK, all of which have their own court systems. Once exhausted, the last right of appeal is to the UK Supreme Court which is the highest court and hears civil appeals from Northern Ireland, Scotland, England & Wales. It is only at the point when matters reach the Supreme Court, will it engage with all of the arguments. Decisions made in courts of appeal and the Supreme Court, become precedents that must be followed by courts in all future cases. This ensures that similar cases are treated similarly across each jurisdiction.

The Government brought forward prorogation commencing on the 9th September 2019 ending a two year parliamentary session. In Boris Johnson’s words it was to “bring forward a bold and ambitious domestic legislative agenda for the renewal of our country”. This has been met with strong opposition on the basis that calling prorogation at a time of political upheaval would prevent MPs fully debating and stopping a no-deal Brexit. Why was prorogation, a usually uncontroversial process, met with such strong opposition and why was the Supreme Court involved?

Safeguards for Democracy

The UK’s well established democracy is protected by the principle of a separation of powers and the rule of law. There are 4 key aspects to this:

  1. The Executive or government of the day, governs and sets the programme of legislation which will support the policies on which it was elected.
  2. Our legislature is Parliament, which represents the population and holds the government to account on its proposals, making our laws.
  3. The Courts are appointed and separate from politics as they are responsible for upholding Parliament’s laws, ensuring that the public interest is protected and clarifying the interpretation of law where there is uncertainty.
  4. Freedom of speech and a free press to allow public discussion are the final key safeguard for our democracy.

Everything Stops

Unlike simply going into recess when there is no business in the main chamber of Parliament but important committee and other work continues, when Parliament is prorogued any motions that have not been answered, or Bills that have not obtained Royal Assent, will not progress any further unless there has been specific agreement. So everything stops. At this time of serious upheaval, when we are so close to the Brexit deadline without having a deal agreed and when there isn’t even consensus that serious negotiations are ongoing, some Parliamentarians argue that the Government is undermining democracy by preventing Parliament from scrutinising the Government’s actions on Brexit. They therefore turned to the Courts to ask them to rule on whether preventing Parliament from fulfilling its constitutional role was lawful.

Different parts of the UK have their own courts and legal systems and initially cases have been heard in each -Court of Appeal (England &Wales), Court of Appeal (Northern Ireland) and Court of Session (Scotland).  Civil appeals from these courts, if they are of wide public significance, are heard by the Supreme Court, which is the highest court in the UK. The recent ruling had major importance for everyone in the UK because the Supreme Court’s judgements become precedents that must be followed by courts in all future cases.

How it ended up at the Supreme Court

A petition was lodged in Scotland in July, in relation to the advice the Prime minister provided to the Queen about prorogation. The Court of Session Outer House, dismissed this on the 4th September 2019, on the basis that the matter was political in nature. Lord Doherty set out in his judgement that “the courts should not interfere with a political decision to prorogue parliament”. This decision was allowed to be appealed and then heard by the Scottish Court of Session (Inner House) on the 11th September 2019, who ruled that the matter is in fact justiciable, that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. In their judgement it was set out that “it had the purpose of stymying parliament”. 

This decision was appealed to the Supreme Court by the Government.

Gina Miller applied to The Divisional Court of England & Wales for an urgent judicial review (a review on administrative decisions) on the basis that proroguing parliament, is an abuse of power and contrary to the principle of Parliamentary Sovereignty. The argument was made about the unusual length of time for prorogation (5 weeks) and the timing, occurring at a time of political upheaval with no deal having being agreed with the EU for the 31st October. The Government’s position is that the issue is not justiciable (subject to trial in a court of law). The matter is political in nature and there are no legal standards to test this. The decision of the High Court is that the issue of prorogation is “intrinsically one of high policy and politics, not law”. There are no legal standards against which this can be tested. The claim for a judicial review was dismissed, but permission to appeal to the Supreme Court was also granted.
The High Court in Belfast rejected a legal challenge against a no-deal Brexit. The judge advised that these matters were “inherently and unmistakeably political” and this was also heard in the Supreme Court.

On the 24th September 2019 the UK Supreme Court made a judgement that joined all three appeals from the different corners of the country. In their judgement they declared that the decision to prorogue Parliament is unlawful if it “has the effect of frustrating or preventing without reasonable justification, the ability of Parliament to carry out its constitutional function”. It was judged that this was not a normal prorogation and it “prevented Parliament from carrying out its constitutional role”. There was no good reason to prorogue parliament for five weeks and it was declared unlawful. For the Government, this was the worst case scenario.

Boris Johnson states that he will attempt to negotiate a new deal with the EU before the 31st October now. If no deal is agreed, a new law that was passed before prorogation commenced, preventing a no-deal Brexit will require that there be a three month extension. If Mr Johnson refuses to request the extension then it is likely that further legal battles will commence.

Blog by Stephanie Spencer

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