R (on the application of Miller) (Appellant) v Prime Minister (Respondent)
If you’re a law student you really do need to be able to talk about Miller (No.2). In terms of Constitutional and Public law it was an absolute cracker of a case. The law in those areas isn’t meant to be exciting but this absolutely was.
So, what was it about? Boris Johnson, as Prime Minister had purported to organise the prorogation of Parliament. This means bring the session to an end. He had argued that this was essential to allow him as the new PM to prepare his Queen’s Speech to launch his legislative agenda. Prorogation occurs when the Queen on the advice of her advisors in the Privy Council accepts the government’s request to bring the Parliamentary session to a close. All sounding fine so far? Not quite. The prorogation was to be rather lengthy, a normal prorogation would be under 10 days and this one was for 34 days (although it is important to point out that the party conferences were due to take place during the period of prorogation – generally Parliament goes into recess to allow politicians to attend the conferences – accordingly the actual number of Parliamentary days to be lost was considerably fewer than 34).
Many people cried foul arguing that the purpose of prorogation was actually to shut down a rebellious and awkward Parliament and stop it trying to prevent a no deal Brexit occurring on 31st October (in accordance with the PM’s “do or die” promise). Notwithstanding the cries and demonstrations, the Queen accepted the advice of the Privy Council and purported to prorogue Parliament. Constitutionally she had no other option.
Enter Gina Miller, Joanna Cherry and the Advocate General for Scotland and all 11 members of the Supreme Court presided over by the formidable Lady Hale. The Supreme Court was asked to rule on whether prorogation was legal. The judgment of the Supreme Court is only just over 20 pages long. It is worth reading on many levels and one is for its clear and succinct use of English – a great example of how to write an essay!
The Supreme Court found that the advice given to the Queen to prorogue Parliament was unlawful. Reflect on that for a moment. Jacob Rees-Mogg as Lord President of the Council and Leader of the House of Commons had gone to Balmoral and advised the Queen to do something unlawful! It got worse for the government though. The advice having been unlawful, the Order in Council to prorogue Parliament was null and void – there followed a statement which has been quoted a lot. The purported prorogation had occurred when the Commissioners had returned to Parliament with the order; Lady Hale declared that:
“It was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. It follows that Parliament has not been prorogued.”
One last point. This case was not about stopping Brexit or stopping a no-deal Brexit – it was about the working of the Constitutional Law and it demonstrates the efficacy of the checks and balances between the power of the executive, Parliament and the courts. Don’t write an essay on this area of law without referring to this case!
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