Share it

This is a live blog of the appeals concerning the lawfulness of the current prorogation of the UK Parliament.  Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Emma Boffey, Rory Thomson, Shona McCusker, Sian McNiff, Kenneth Rose, Emma Cross, Will Anderson, Mitchell Abbott, Felicity Bramall and Jennifer Love, all from CMS.

1601: Lady Hale thanks the parties for the swiftness of their submissions and notes that the Court will adjourn until 10.30am tomorrow.

1600: Lord Keen QC rests his submissions. He submits that the interlocutor of the Inner House should be revoked and in particular part 4 of the interlocutor.

1559: Lord Keen QC submits that the possibility of Parliament deciding not to go into conference recess was not explored factually.

1556: Lord Keen QC noted there was a detailed analysis why the prorogation prior to conference recess was considered appropriate. Lord Kerr notes that there is a lot of detail in this memo and it will need to be read. Lord Keen QC submits that this reasoning was disregarded by the Inner House in favour of an inference.

1552: Lady Black asked if Parliament could have decided not to go into recess. Lord Keen QC noted it could. She then asked if Government could have waited to prorogue Parliament until after the conference recess. Lord Keen QC noted that it could have done so, but the prorogation would have ended on the same date.

1550: Lord Keen QC refers to standing order 13 which provides that if the House of Commons is in recess can only be recalled if the Executive call for it and only if the Speaker of the House considered it was in the national interest. Lord Keen QC argues that had the Government waited until after the recess it would have needed to recall Parliament, prior to proroguing Parliament again.

1545: Lord Keen QC refers to the conclusions of the Inner House in relation to the length of the prorogation. Lord Kerr queries why the prorogation needed to cover the conference recess. Lord Keen QC noted that he would turn to this shortly. He continued to note that the reason for the length of the prorogation was set out in the evidence before the Inner House. Lord Kerr notes that the Inner House found that there was no rational reason for the length of the prorogation. Again Lord Keen QC notes that he would come to the rational reason shortly.

1543: Lord Keen QC turns to address Lord Pannick’s submissions on the absence of a witness statement from the Prime Minister. Lord Keen QC notes that the Inner House of the Court of Session placed no reliance on the absence of a witness statement. He submits this was because the documents spoke for themselves.

1540: Lord Wilson questions Lord Keen QC on the decision to prorogue Parliament for 5 weeks. Lord Keen QC notes the decision was made due to the limited  number of sitting days which would be lost. Lord Wilson then turns to his second question, in relation to the Spectator article dated 29 June 2019 and whether the Government could rely on the speculation therein. Lord Keen QC notes that the author of the article was acting as private individual working for a publication and not in her separate role as an adviser to the Prime Minister.

15:32 Lord Keen QC is discussing the historical process of parliament sitting for 2 or 3 weeks prior to the recess for the conference session in the context of the cabinet memo considering prorogation.

1530: Lord Keen QC is currently discussing the consideration of bills being carried over when deciding to prorogate.

1523: Lord Keen QC notes the correspondence between the Government’s Legal Department and Gina Miller’s legal advisers regarding the disclosure of documents, which they are now moving on to discuss.

1515: Lord Keen QC highlights previous authority regarding the non-justiciability of the exercise of legislative power, which suggests the appropriate remedy is political. Lord Sales notes the case was concerned legislative power, which is not at issue here.

1511: Lord Keen QC argues that the courts are not equipped to decide what is a “legitimate” or “illegitimate” political consideration. The Lord President of the Court of Session used the concept of “legitimate political considerations” in his judgment.

1505: Lord Keen QC notes European Union Withdrawal Act No.2 was passed in two days, showing that Parliament had enough time to pass legislation in the time given once it became clear Parliament would be prorogued. Lord Keen QC argues this, coupled with the mechanism contained within the Northern Ireland Executive Formation Act 2019 to prevent prorogation, shows that Parliament could have legislated to prevent prorogation.

1501: The Justices challenge Lord Keen QC regarding the date on which the report under the Northern Ireland Executive Formation Act 2019 will be laid before Parliament. Lord Keen QC advises he will revisit the issue in his reply.

1458: Lord Keen QC says the Northern Ireland Executive Formation Act 2019 shows that Parliament legislated for the possibility of prorogation in the period from September 2019 to December 2019. He says that if it had wanted to avoid this Parliament could have said so.

1456: Lord Keen QC says the majority of the Inner House fell into error in relation to this but Lord Brody was correct in his decision. He says Lord Drummond Young’s view, in relation to the sittings of Parliament in that Act was limited to Northern Ireland was wrong. Lord Keen QC says there is no such limitation.

1454:  Lord Keen QC refers to the Northern Ireland Executive Formation Act 2019, section 3, as a recent example, which introduces a mechanism to recall Parliament for certain periods between September 2019 to December 2019 where it was either prorogued or adjoured.

1450: A question is asked about an example if honours were awarded based on bribery or corruption would that be unlawful. Lord Keen QC says the exercise of the perogative in that example would not be a question of justiciability but the remedy would lie in the criminal sanctions in relation to bribery and corruption.

1446: Lord Keen QC again considers the proper purpose argument. He says that the exercise of the perogative is not restricted to a formal purpose and so if applied elsewhere it cannot be said to be for an improper purpose. He says that it can be used for political rather for formal purpose. He says the effect of the Lord President’s language is to consider what is a proper political purpose. He says the Inner House has looked at purpose and the propriety of that purpose.

1444: Lady Hale rasies a point asking whether the example was perhaps showing that the House of Commons was raising objection against the House of Lords which was at that stage hereditory. Lord Keen QC does not agree.

1442: Lord Keen QC says the example shows the proroguing of Parliament was in fact where the Government did not have support of the House rather than for a King’s/Queens speech. The purpose has previously been shown to be for a party political purpose as per Lord Keen QC’s examples.

1440: Lord Keen QC gives examples of previous proroguing of Parliament where the purpose was not for a King’s/Queen’s speech.

1438: Lord Keen QC is asked what the purpose was and says he will address that in due course.

1437: The point raised is that Parliament has made express provision that where it is prorogued it may stand prorogued for at least 14 days by exercise of the perogative and that is not related to a Queen’s speech.

1434: Lord Keen QC draws to the Court’s attention the Prorogation Act 1867.

1432: Lord Keen QC addresses the proper purpose point and makes submission that prorogation is not for one purpose only. He says Parliament may be prorogued for a number of purposes.

1426: Lord Reed and Lady Arden question Lord Keen QC regarding procedural steps the Government would take in the event that prorogation is declared unlawful by the Court.

1421: Lord Keen QC submits that “in any view” part 4 of the interlocutor (the Inner Court’s order) must be recalled.

1419 Lord Keen QC argues that in so far as the Inner House sought to declare the prorogation unlawful, he will take no issue with their order.  However in so far as they seek to declare it “null” and of “no effect” he submits that they went too far and where they cannot go.

1416: Lord Keen QC notes that this principle is consistent with extensive authority and which Sir James Eadie QC will address in due course in further detail.

1414: Lord Keen QC notes that the Inner House accepted that the principle of non-justiciability exists in public law and that the question of whether something is justiciable will depend on the subject matter.

1412: Lord Keen QC maintains that it is “quite clear” that the decision in the Inner House and the first instance decision in Miller did not result from any substantive difference of English and Scottish law.

1405: Lord Keen QC refers the court to authority that underpins the proposition that in addressing the prerogative as it applies to the UK parliament, and considering the privileges of that Parliament, one has regard to common principles of public law throughout the United Kingdom, including the Burmah Oil case and the case of Adams v Guardian Newspapers.

1402: The Court reconvenes after lunch.  Lord Keen QC is now making submissions on behalf of the Advocate General for Scotland.

1305: Lord Pannick QC now closes. Lady Hale adjourns the Court for lunch until 14:00.

1303: Lord Pannick QC says authorities on dissolution are not good precedents as this power no longer exists and was personal to the Monarch.

1300: Lord Pannick QC accepts that the authorities suggest that for justiciability there must be recognised matters of public law at issue. Review of progative powers is more difficult than statutory powers but the same principles must apply.

1254: Lord Pannick QC says that cases draw a clear distinction between matters of politics and matters of law. The mere fact that matters may have a political context does not preclude them being matters of law. Modern judicial review law has been developed to deal with such challenges.

1246: Lord Pannick QC continues to review the authorities on the limits of the court’s competence to review prorogative powers. Present case does involve questions of public law and that is whether the purpose is legitimate to be determined by the courts in order to ensure the application of the rule of law. The PM cannot have a discretion as to the breadth of the powers.

1240: Lord Pannick QC in response to the bench’s inquiries stresses that prorogation can be used for a proper purpose but cannot be used with the motive of removing parliamentary scrutiny.

1235: Lord Pannick QC reviewing authorities on justiciability in relation to prorogative powers. These demonstrate that the common law will scrutinise the scope and extent of prorogative powers.

1227: Lord Pannick QC refers to Professor Craig’s authority. He cites quotes stating that there is no need to consider the duration in respect of the justiciability (whether a court would ever have to rule if 2 or 3 days were lawful), rather the duration can be considered by way of determining whether the purpose was legally admissible and for a proper purpose.

1223: Lord Pannick QC turns to the question of justiciability.

1222: Lord Pannick QC refers to other examples of prorogation, such as in 1949. Lord Pannick QC submits that this was to enable the Parliament Act 1949 to be brought into force, rather than to halt Parliament.

1217: Lady Arden suggests that the consent of the sovereign would have been required in the case of parliament altering the prorogation. Lord Pannick QC submits that a bill affecting the prerogative power cannot be brought into law without the sovereign’s consent, and the Queen would have been advised by her Prime Minister in respect of that.

1212: Lord Pannick QC refers to further authority published by Professor Craig in August of this year.  The authority contrasts a situation in which the courts have the ability to curtail prerogative power of the executive, and those in which it does not. The authority also considers the impact on parliamentary sovereignty of the courts being unable to intervene in a future prorogation.

1207: Lord Pannick QC refers to the case of R (on the application of UNISON) (Appellant) v Lord Chancellor [2017] UKSC 51 (which related to the introduction of Employment Tribunal fees) as further demonstrating the doctrine of parliamentary sovereignty.

1202: Lord Pannick QC submits that ministers cannot exercise prerogative powers with the intention of removing the powers of the legislature.

1158: Lord Pannick QC submits that ministers are the “junior partner”, and Parliament is a “senior partner”. The question is whether the junior partner can lawfully remove the scrutiny of its activities by the senior partner.

1153: Lord Pannick QC refers to authority from Professor Craig noting that if it was correct that the Executive may act with the effect of silencing parliamentary scrutiny one would expect to find some authority to support that contention and there is none.

1150: Lord Carnwath notes that Professor Elliot does not have many authorities for what he says and this would be helpful. Lord Pannick QC states it is a basic constitutional principle, no power enjoyed by the Executive may be used with the effect of undermining fundamental principles of law, he submits prorogation does undermine the principle that the Executive is answerable to Parliament and that accountability has been removed at a vital time.

1147: In further reference to the Professor Elliot authority, Lord Pannick QC states the question is whether have the boundaries of the power been exceeded.

1143: Lord Pannick QC says identifying proper purpose of statutory powers is a matter for legislation assisted by legal powers. The exercise of perogatory power is more complex because there is no statute. He refers to authority from Professor Elliot noting that all parliamentary powers are legally finite by reference to the purposes for which they may or may not be use and that is a legal question. By contrast, the interpretation of statutory powers is a literal one.

1140: Lord Pannick QC notes there will inevitably be unanswered questions during prorogation. Lord Carnwath asks for evidence of any Bills which might be lost. Lady Hale notes the important point is the distinction between Parliament adjourning and prorogation. An effect of prorogation is that bills are lost and this is of great interest to the court. Lord Pannick QC says they will identify those bills.

1137: Lord Pannick QC refers to the briefing paper from the House of Commons.

1132: Lady Hale notes the interest of the effect of the Minister’s refusal to do what he should have done. Lord Pannick says if the effect is to frustrate parliamentary procedures assists in identifying the motive of the Prime Minister. He notes that once parliament is prorogued questions can’t be tabled or answered.  

1130: Lord Pannick QC submits the absence of a witness statement from the Prime which addresses a pertinent part of the case is an issue for the court to take into consideration. The modern law is strongly influenced by duties of disclosure.

1124: Lord Pannick QC says that, for the Prime Minister to prorogue Parliament for five weeks, to avoid Parliamentary interference, was for an improper purpose.

1122: Lord Pannick QC says that the Inner House was correct as to its analysis and conclusions on the motives of the Prime Minister for proroguing Parliament. The Court should draw an inference from the absence of a witness statement from the Prime Minister. The Court should conclude that, but for the Prime Minister’s wish to avoid Parliamentary control, he would not have recommended prorogation of five weeks’ duration, but would instead have recommended a shorter prorogation.

1119: Lord Pannick QC refers to Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 in support of his submissions as to the need for witness evidence.

1113: Lord Pannick QC submits that the Court may draw adverse inferences from the absence of witness statement evidence from the Prime Minister. At best, from the Prime Minster’s point of view, the documentary material is ambiguous as to the Prime Minister’s motives for prorogation.

1108: There is a short delay while the authorities to which Lord Pannick QC is referring are located for the Court.

1105: Lord Pannick QC refers to the Prime Minister having not provided a witness statement. Only the Treasury Solicitor provided a witness statement, and that related to the production of documents. The provision of a witness statement would have had legal consequences, including an application for cross-examination of the Prime Minister.

1100: Lord Pannick QC is referring to an interview that the Prime Minister gave to the BBC. He says that the Prime Minister’s statements are relevant to the motives for prorogation.

1059: Lord Pannick QC is taking the court to certain interviews given by the Prime Minister on the matter of Brexit and the role of Parliament.

1058: Lord Pannick QC says he agrees with the reasoning of the Inner House of the Court of Session in Scotland. He says the essence of their reasoning is that the Prime Minister made clear he is determined this country will leave the EU on 31 October 2019, deal or no deal, and gave no sensible reason for this lengthy prorogation and saw Parliament as a threat to the fulfilment of his policy.

1056: Lord Pannick QC is addressing what happened in practice. He says that her Majesty was advised it was a matter for the Prime Minister. He makes no criticism of the Queen. He says she acted on the advice of the Prime Minister.

1055: There is a short delay, while the Justices try to find the right page of the bundle in the papers. We hear that they have been prepared at some speed, given the urgency of these appeals.

1053: Lord Pannick QC is addressing the Court on Jacob Rees Mogg, Leader of the House of Commons, and his role in the advice to the Queen.

1052: Lord Pannick QC says that Her Majesty, the Queen, was obliged to accept the advice of the Prime Minister. But he says that this is not an issue which arises for determination in this case.

1051: Lord Carnwath is querying this proposition.

1050: Lord Pannick QC submits there are many precedents establishing the relevant principles of our constitutional law. There has not before been a need to apply those principles in the context of the power of prorogation, because no Prime Minister has abused his powers in the manner which is alleged here, in the last 50 years.

1048: Lord Pannick QC outlines what Parliament may wish to do in the coming weeks. He says the issues are very far from academic.

1047: Lord Pannick QC says this issue is not academic, simply because Parliament can sit in specified periods before the UK leaves the EU on 31 October 2019.  He says it is “very far from academic” that the UK Parliament cannot conduct its business, as it thinks appropriate, for five weeks.

1045: Lord Pannick QC says that none of the legislation cited by the UK Government affects the common law duty of the UK Supreme Court to ensure that executive power is not exercised for an improper motive.

1044: The exceptional length of the progoration in this case is strong evidence that the motive was to silence Parliament for that period, says Lord Pannick QC.

1043: He says that when the Prime Minister exercised his power to advise Her Majesty, it was an improper purpose to be motivated by a wish to avoid parliamentary control over his policies.

1042: Lord Pannick QC explains why he says the three points made in the written case of the Prime Minister and Advocate General for Scotland “have no substance”.

1040: Lord Pannick QC says that this issue is one for the courts – the rule of law demands it, in his submission.

1039: Lord Pannick QC submits that the arguments for the Prime Minister amount to a desire of the executive to avoid parliamentary scrutiny.

1037: Lord Pannick QC says that parliament is sovereign. For the executive to seek to use their power to evade that scrutinty stands the basic principles of constitutional law “on their head“.

1036: Lord Pannick QC says he will adopt the substance of the reasoning of the Inner House of the Court of Session in the Cherry case, together with adding some supplementary points, on the failure of the Prime Minister to provide a written statement responding to the allegations as to his motive.

1034: Lady Hale invites Lord Pannick QC to commence his submissions on behalf of Gina Miller.

1033: Lady Hale, President of the UK Supreme Court, welcomes parties. She explains that the appeals being heard this week involves the same issue: whether it was lawful for the Prime Minister to advise the Queen to sign the Order in Council proroging the UK Parliament. She says the UK Supreme Court exists to decide difficult cases like this. Lady Hale emphasises that the Justices are not concerned with the wider political issues, which form the background to this legal issue. The case will not determine when and how the UK leaves the EU.

1031: The eleven Justices of the UK Supreme Court take their seats.

1026: Counsel, media and interested members of the public are assembled in Court 1 of the UK Supreme Court. Justices expected shortly.

0941: We expect proceedings to get under way at around 10.30am.

0940: After lunch, we will hear from the appellant, the Advocate General for Scotland, in the matter of Cherry. The Advocate General for Scotland is one of the Law Officers of the Crown, who advise the UK Government on Scots law. Lord Keen of Elie QC, the current Advocate General for Scotland, will deliver submissions himself. Prior to his appointment as Advocate General in for Scotland, Lord Keen of Elie QC was a practising member of the Faculty of Advocates and remains widely regarded as one of Scotland, and the UK’s, finest advocates. He served as Dean of the Faculty of Advocates (leader of the Scottish Bar) from 2007 – 2014.  You can read more about Lord Keen of Elie QC here.  We expect Lord Keen of Elie QC’s submissions to be delivered between 2pm-4pm later today.

0935: This morning, submissions will be heard from Senior Counsel for Gina Miller, Lord Pannick QC. Lord Pannick QC is one of the UK’s most highly regarded advocates and specialises in Public law & Human Rights and Constitutional Law. He has appeared in more than 20 cases before the UK Supreme Court since its inception in 2009. You can read more about Lord Pannick QC here.  We expect Lord Pannick QC to speak until around 1pm this afternoon.

0931: Given the constitutional importance of the appeals, eleven Justices of the Supreme Court will hear the matter over the coming three days.  The Justices are: Lady Hale, President of the Supreme Court; Lord Reed, Deputy President of the Supreme Court; Lord Kerr; Lord Wilson; Lord Carnwath; Lord Hodge; Lady Black; Lord Lloyd-Jones; Lady Arden; Lord Kitchin; and Lord Sales. You can read more about the Justices at the UK Supreme Court website Biographies.

0929: Followers of the appeals will be able to watch the UK Supreme Court’s live feed of the hearings from 10.30am at the UK Supreme Court website. The Court have also, helpfully, made the written submissions of parties publicly available, together with a list of counsel appearing and a map of where the eleven Justices hearing the appeal will sit during the hearings.

0924: Good morning from the UKSC Blog team, as the appeals in the conjoined matters of (1) R (Miller) v Prime Minister; and (2) Cherry & Ors v Advocate General for Scotland commence today before the UK Supreme Court.

To recap, Joanna Cherry QC MP and others sought judicial review of the UK Government’s ability to prorogue the UK Parliament before the Scottish courts.  The petition for judicial review was refused at first instance, but was upheld on appeal to the Inner House of the Court of Session. The Lord President (Lord Carloway), Lord Brodie and Lord Drummond Young unanimously concluded that the Prime Minister’s advice to the Queen was a justiciable matter i.e. a matter which the Court could review, that the advice was motivated by the “improper purpose… of stymying” the UK Parliament and that the advice and, therefore, the prorogation of the UK Parliament with effect from 10 September 2019 were unlawful.

In England & Wales, Gina Miller, the businesswoman who brought the UK Supreme Court appeal of R (Miller & Anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 raised proceedings, in which Sir John Major, the former Prime Minister of the UK, the shadow Attorney General Shami Chakrabarti, the Scottish Government and the Welsh Government all intervened. Ms Miller’s case was heard before a specially convened bench comprised of the Lord Chief Justice of England & Wales, Sir Terence Etherton (The Master of the Rolls) and Dame Victoria Sharp, the President of the Queen’s Bench Division. Ms Miller’s judicial review was refused.

Over the course of the coming days, we will hear submissions on behalf of Ms Miller on appeal, and on behalf of the UK Government on appeal in the Cherry decision from Scotland.  We will also hear from the interveners, who include Raymond McCord, whose separate proceedings in Northern Ireland were also dismissed.

Described as a “once in a generation case”, for which there is no direct legal precedent, the two key issues the UK Supreme Court will require to consider are:

  1. Whether as a matter of law, the prorogation can be judicially reviewed in circumstances in which it is alleged that it has been requested for what is said to be an improper motive; and
  2. Whether that improper motive – being the alleged stymying of the UK Parliament – has been demonstrated or can be inferred from the evidence made available.

Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts.