Prorogation of Parliament is unlawful if it has the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.
R (on the application of Miller) v the Prime Minister; Cherry and others v Advocate General for Scotland
 UKSC 41
Supreme Court of the United Kingdom
Lady Hale, P; Lord Reed, DP; Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales
September 24, 2019
Reported by Faith Wanjiku
Judicial Authority– justiciability-matters that were held to be justiciable- prerogative powers-prorogation of Parliament by the Government-whether the lawfulness of the Prime Minister’s advice to the Queen was lawful, was justiciable in a court of law
Constitutional Law– constitutional principles-parliamentary sovereignty and accountability-power to prorogue Parliament-limits of the power within constitutional principles-where the power to prorogue Parliament is unlawful-whether the prorogation of Parliament by Her Majesty the Queen on advice of the Prime Minister had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification
Administrative Law-prerogative powers-scope of- where it was exercised within its limits–what was the scope of prerogative powers and if its exercise was open to legal challenge
A memorandum was sent by the Director of Legislative Affairs to the Prime Minister of the UK recommending that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin within September 9 to 12, 2019 and for a Queen’s Speech on October 14, 2019. The Prime Minister ticked ‘yes’ to that recommendation and advised Her Majesty to prorogue Parliament between those dates.
An order in council was made that Parliament be prorogued between those dates and that the Lord Chancellor prepare and issue a commission for proroguing Parliament accordingly. A Cabinet meeting was held by conference call shortly after that in order to bring the rest of the Cabinet up to speed on the decisions which had been taken. That same day, the decision was made public and the Prime Minister sent a letter to all Members of Parliament explaining it. As soon as the decision was announced, an appeal in the High Court of England and Wales began the English proceedings challenging its lawfulness.
On September 11, 2019 the High Court of England and Wales delivered judgment dismissing the claim on the ground that the issue was not justiciable in a court of law. That same day, the Inner House of the Court of Session in Scotland announced its decision that the issue was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the Government, and that it, and any prorogation which followed it, were unlawful and thus void and of no effect. The 1st appellant’s appeal against the English decision and the 2nd respondent’s appeal against the Scottish decision were then heard by the Supreme Court.
i Whether the lawfulness of the Prime Minister’s advice to the Queen was a question that was justiciable in a court of law.
ii Whether the prorogation of Parliament by Her Majesty the Queen on advice of the Prime Minister had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.
iii What was the legal limit upon the power to prorogue which made it compatible with the ability of Parliament to carry out its constitutional functions?
iv What was the scope of prerogative powers and if its exercise was open to legal challenge?
1. The power to order the prorogation of Parliament was a prerogative power: that was to say, a power recognised by the common law and exercised by the Crown, in the instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It was not suggested in those appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. That situation did however place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.
2. Parliamentary sittings were normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer. Prorogation of Parliament brought the current session to an end. The next session began, usually a short time later, with the Queen’s Speech. While Parliament was prorogued, neither House could meet debate and pass legislation. Neither House could debate Government policy. Nor could members of either House ask written or oral questions of Ministers. They could not meet and take evidence in committees. In general, Bills which had not yet completed all their stages were lost and would have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills could be “carried over” into the next session and pick up where they left off. The Government remained in office and could exercise its powers to make delegated legislation and bring it into force. It could also exercise all the other powers which the law permitted. It could not procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.
3. Parliament did not decide when it should be prorogued. That was a prerogative power exercised by the Crown on the advice of the Privy Council. Prorogation had to be distinguished from the dissolution of Parliament. The dissolution of Parliament brought the current Parliament to an end. Members of the House of Commons ceased to be Members of Parliament. A general election was then held to elect a new House of Commons. The Government remained in office but there were conventional constraints on what it could do during that period. Presently, dissolution was usually preceded by a short period of prorogation.
4. Prorogation had to also be distinguished from the House adjourning or going into recess. That was decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion was moved by the Prime Minister. In the House of Lords, it was moved by the Lord Speaker. During a recess, the House did not sit but Parliamentary business could otherwise continue as usual. Committees could meet, written Parliamentary questions could be asked and had to be answered.
5. Although the courts could not decide political questions, the fact that a legal dispute concerned the conduct of politicians, or arose from a matter of political controversy, had never been sufficient reason for the courts to refuse to consider it. Almost all important decisions made by the Executive had a political hue to them. The courts had exercised a supervisory jurisdiction over the decisions of the Executive for centuries. Many if not most of the constitutional cases in the legal history had been concerned with politics in that sense.
6. The Prime Minister’s accountability to Parliament did not in itself justify the conclusion that the courts had no legitimate role to play. That was so for two reasons:
a. The effect of prorogation was to prevent the operation of ministerial accountability to Parliament during the period when Parliament stood prorogued. If Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted.
b. The courts had a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister was politically accountable to Parliament did not mean that he was therefore immune from legal accountability to the courts.
7. In the case of prerogative powers, it was necessary to distinguish between two different issues:
a. Whether a prerogative power existed, and if it did exist, its extent.
b. Whether, granted that a prerogative power existed, and that it had been exercised within its limits, if the exercise of the power was open to legal challenge on some other basis.
The first of those issues undoubtedly lay within the jurisdiction of the courts and was justiciable, as all the parties to those proceedings accepted. The second of those issues, on the other hand, could raise questions of justiciability. The question then was not whether the power existed, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits was challengeable in the courts on the basis of one or more of the recognised grounds of judicial review. The answer to that question would depend on the nature and subject matter of the particular prerogative power being exercised.
8. In principle, if not always in practice, it was relatively straightforward to determine the limits of a statutory power, since the power was defined by the text of the statute. Since a prerogative power was not constituted by any document, determining its limits was less straightforward. Every prerogative power had its limits, and it was the function of the court to determine, when necessary, where they lay. Since the power was recognised by the common law, and had to be compatible with common law principles, those principles could illuminate where its boundaries lay. The boundaries of a prerogative power relating to the operation of Parliament were likely to be illuminated, and indeed determined, by the fundamental principles of constitutional law.
9. Two fundamental principles of the constitutional law were relevant to the instant case. The first was the principle of parliamentary sovereignty: that laws enacted by the Crown in Parliament were the supreme form of law in the legal system, with which everyone, including the Government, had to comply. The courts had protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so had demonstrated that prerogative powers were limited by the principle of parliamentary sovereignty. The principle of parliamentary accountability was not placed in jeopardy if Parliament stood prorogued for the short period which was customary, as Parliament did not in any event expect to be in permanent session. But the longer that Parliament stood prorogued, the greater the risk that responsible government could be replaced by unaccountable government: the antithesis of the democratic model.
10. A prerogative power was, of course, different from a statutory power: since it was not derived from statute, its limitations could not be derived from a process of statutory interpretation. However, a prerogative power was only effective to the extent that it was recognised by the common law; the King hath no prerogative, but that which the law of the land allowed him. A prerogative power was therefore limited by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict.
11. A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) would be unlawful if the prorogation had the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the Executive. In such a situation, the court would intervene if the effect was sufficiently serious to justify such an exceptional course.
12. Courts could rule on the extent of prerogative powers. That was what the court would be doing in the case by applying the legal standard which determined the limits of the power. That standard was not concerned with the mode of exercise of the prerogative power within its lawful limits. On the contrary, it was a standard which determined the limits of the power, marking the boundary between the prerogatives on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand. An issue which could be resolved by the application of that standard was by definition one which concerned the extent of the power to prorogue, and was therefore justiciable.
13. The prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on October 31, 2019. Parliament, and in particular the House of Commons as the elected representatives of the people, had a right to a voice in how that change came about. The effect upon the fundamentals of the democracy was extreme.
14. The prorogation itself took place in the House of Lords and in the presence of Members of both Houses. But it could not sensibly be described as a proceeding in Parliament. It was not a decision of either House of Parliament. It was something which was imposed upon them from outside. It was not something upon which the Members of Parliament could speak or vote. The Commissioners were not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen’s bidding. They had no freedom of speech. That was not the core or essential business of Parliament; it brought that core or essential business of Parliament to an end.
15. The Supreme Court was not, therefore, precluded by article 9 of the Bill of Rights Act, 1688 or by any wider Parliamentary privilege from considering the validity of the prorogation itself. The logical approach to that question was to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. That meant that it was null and of no effect. It led to the Order in Council which, being founded on unlawful advice was likewise unlawful, null and of no effect and should be quashed. That led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.
16. Parliament had not been prorogued and the court should make declarations to that effect. The Prime Minister said that he would take all necessary steps to comply with the terms of any declaration made by the court and the court expected him to do so. However, it appeared that, as Parliament was not prorogued, it was for Parliament to decide what to do next. There was no need for Parliament to be recalled under the Meeting of Parliament Act 1797. Nor had Parliament voted to adjourn or go into recess. Unless there was some Parliamentary rule to the contrary of which the court was unaware, the Speaker of the House of Commons and the Lord Speaker could take immediate steps to enable each House to meet as soon as possible to decide upon a way forward. That would be a proceeding in Parliament which could not be called in question in the Supreme Court or any other court.
The Advocate General’s appeal in the case of Cherry was dismissed and the 1st appellant’s appeal was allowed. The same declarations and orders should be made in each case.
Relevance to the Kenyan Situation
There is no statutory provision in Kenya that provides for suspension of Parliament. However in 1993 President Daniel arap Moi abruptly suspended Parliament on the day after it admitted the first opposition members for more than a quarter of a century. The opposition accused Mr Moi of rigging the multi-party elections of the previous month and cheating them of power. The polls returned 88 opposition MPs, while the ruling KANU party won 95 seats and five were still disputed. It was alleged that Moi had developed cold feet at the eagerness with which the opposition was ready to get down to work in parliament. His decision was termed as arbitrary and was designed to undermine the legislature’s authority and subvert its work.
Kenya too has three arms of Government, which are the Executive, Judiciary and Parliament. Many a times the doctrine of separation of powers is swept under the rag as there’s a lot of back and forth among them for example with courts giving orders(say the court order stating that Huduma Number registration was not to be made compulsory) which the Executive or Parliament blatantly disregard. The UK case is very jurisprudential to Kenya as it shows the role of courts in exercising supervisory jurisdiction over the lawfulness of acts of the Government and that the doctrine of separation of powers can thus be protected when each arm of the Government practices the system of checks and balances on the other.