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CASE NOTE QUESTIONS
Q No.1: What is the title of the Appeal? : R (Miller) vs The Prime Minister
Q No.2: What is Neutral Citation Number?
[2019] UKSC 41
UKSC stands as United Kingdom Supreme Court
41 stands as Page No. 41
2019 stands as : Judgments was passed in the year 2019.
Q No.3 To Which Court the instant Appeal has been heard? : Supreme Court
Q No.4 Decision of Which Court has been challenged?: England and Wales High
Court
Q No. 5 Judges of the High Court?
Q No.6 Who is the Appellant and Respondent and Interested parties of the
Case?
APPELLANTS: Gina Miller – The Advocate General
RESPONDENTS: The Prime Minister - Joanna Cherry and Others
Q No. 07 : Lawyers of Appellant :
Lord Pannick – Lord Hickman (Gina Miller)
Lord Keen – Andrew Webster (The Advocate General)
Question No. 08: What is prorogation?
1. Sessions: Parliamentary sittings are divided into sessions, typically lasting about a
year, though they can be shorter or longer (e.g., the current session may be much
longer).
2. Prorogation: Prorogation of Parliament marks the end of the current session, after
which the next session begins, typically with the Queen’s Speech.
3. Impact of Prorogation:
• During prorogation, neither the House of Commons nor the House of Lords
can meet, debate, or pass legislation.
• Members cannot debate Government policy or ask Ministers written or oral
questions.
• Committees cannot meet or take evidence.
• Bills that have not completed all stages are usually lost and must start again
in the next session.
• In certain cases, Bills may be “carried over” to the next session, continuing
where they left off.
4. Government during Prorogation: The Government remains in office and can
make delegated legislation and bring it into force. It cannot pass Acts of Parliament
or obtain approval for new spending during prorogation.
5. Prorogation Process: The timing of prorogation is decided by the Crown, based
on advice from the Privy Council, not by Parliament itself. It has been a formality
for over a century, with the Government advising the Crown to prorogue
Parliament. The monarch historically could attend Parliament to announce
prorogation, but this last occurred in 1854 with Queen Victoria. A proclamation is
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issued by Order in Council a few days before prorogation, setting the range of
days and the date when prorogation ends.
6. Procedure on Prorogation Day: The Lord Chancellor prepares a commission
under the great seal. On the appointed day, Commissioners enter the House of
Lords, the House of Commons is summoned, and the monarch’s command is read.
Parliament is then officially prorogued.
Q No. 09. Difference between Prorogation and Dissolution
1. Prorogation vs. Dissolution:
• Prorogation ends a session, not Parliament.
• Dissolution ends the current Parliament and calls for a general election.
2. General Election: After dissolution, a general election is held to elect a new House
of Commons.
3. Government during Dissolution: The Government stays in office but with limited
powers.
4. Prorogation Preceding Dissolution: Dissolution is usually preceded by a short
prorogation.
5. Dissolution under Fixed-term Parliaments Act 2011: General elections are held
every five years, with early elections possible only in two cases: Two-thirds
majority in the House of Commons votes for an early election. No confidence in the
Government and no new Government formed within 14 days.
6. Timing of Dissolution: Parliament is dissolved 25 days before polling day.
7. Prorogation Power: The Act does not affect the monarch’s power to prorogue
Parliament.
Q No. 10: Difference between Prorogation and House Adjourning
1. Distinction from Prorogation: Recess is different from prorogation, as
it is decided by each House, not the Crown.
2. Decision-Making: Each House passes a motion to go into recess. In the
House of Commons, the motion is moved by the Prime Minister. In the
House of Lords, the motion is moved by the Lord Speaker.
3. Timing: The Houses may go into recess at different times.
4. Parliamentary Activities During Recess: The House does not sit during
a recess, but business continues. Committees can meet, and written
Parliamentary questions can still be asked and answered.
Q No. 11: What is run up (Back ground) to this Prorogation?
1. Referendum: Held on 23rd June 2016 under the European Union
Referendum Act 2015. Majority voted to leave the European Union.
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2. Legally Binding: The result was not legally binding, but the Government
pledged to honour it. The result was treated as politically and
democratically binding.
3. Government Response: David Cameron resigned as Prime Minister.
Theresa May became the new Prime Minister and Conservative leader.
4. Article 50 (Treaty on European Union): Provides the process for a member
state to withdraw from the Union. The state must notify the European
Council of its intention.
5. Negotiation and Agreement: The European Union negotiates an
agreement with the withdrawing state. The agreement outlines withdrawal
arrangements and the future relationship.
6. Withdrawal Process: The EU treaties cease to apply when the withdrawal
agreement takes effect or after two years of notification. This period can be
extended if agreed unanimously by the European Council and the member
state.
7. October 2, 2016: Theresa May announced intention to notify Article 50 by
March 2017.
8. Legal Challenge: Gina Miller challenged May’s power without an Act of
Parliament. The UKSC ruling: Government needs Parliamentary approval
(R (Miller) v Secretary of State for Exiting the European Union).
9. Parliamentary Response: European Union (Notification of Withdrawal)
Act 2017 passed (Royal Assent on March 16, 2017). Prime Minister May
gave notification under Article 50 on March 29, 2017.
10. General Election: Parliament dissolved on May 3, 2017; General
Election on June 8, 2017. May lost overall majority, but formed a
Government through a confidence and supply agreement with the
Democratic Unionist Party.
11. Negotiations and Legislation: Withdrawal negotiations continued with the
European Council. European Union (Withdrawal) Act 2018 passed and
came into force on June 26, 2018. Defined exit day as March 29, 2019, but
could be extended.
12. Parliamentary Approval: Section 13 required Parliamentary approval for
any withdrawal agreement. Withdrawal agreement could only be ratified if:
Minister lays statement and documents before Parliament. House of
Commons approves. House of Lords notes. An Act of Parliament for
implementation.
13. Withdrawal Agreement: Agreement concluded on November 25, 2018.
Rejected three times by the House of Commons in 2019.
14. Extension Requests: March 20, 2019: Prime Minister asked for an
extension to April 12, 2019. April 8, 2019: European Union (Withdrawal)
Act 2019 passed. April 10, 2019: Extension granted to October 31, 2019.
15. Resignation of Theresa May: May resigned as Conservative leader on
June 7, 2019, and as Prime Minister on July 24, 2019.
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16. Boris Johnson’s Leadership: Boris Johnson became Conservative leader.
Emphasized preparing for a "no deal" exit. Majority of the House of
Commons opposed withdrawal without an agreement.
Q No.12 : Background of Legal Proceedings :
1. 30th July 2019: A cross-party group of 75 MPs and Lords launched a petition in
the Scottish Court of Session. The petition sought a declaration that proroguing
Parliament to avoid Brexit debate was unlawful. Government's Response: The
Government argued the petition was premature and denied intentions to prorogue
Parliament to deny debate before Exit Day. The denial was repeated in revised
answers on 23rd and 27th August.
2. 27th August 2019: The petition was amended to claim that proroguing to deny
“sufficient time for proper consideration” of withdrawal was unlawful.
3. 2nd September 2019: The Government amended its response, continuing to deny
that there was any reasonable fear of unlawful prorogation.
4. 30th August 2019: Lord Doherty refused an interim interdict to prevent
prorogation and set a date for a substantive hearing on 3rd September.
5. 4th September 2019: Lord Doherty refused the petition stating the issue was not
justiciable (not suitable for court intervention).
6. 11th September 2019: The Inner House of the Scottish Court of Session allowed
the appeal. The court held the prorogation was motivated by an improper purpose
and declared it unlawful and null. Permission to appeal to the Supreme Court was
granted. Mrs. Gina Miller’s Challenge: On the announcement of prorogation,
Gina Miller launched legal proceedings in the High Court (England and Wales).
She sought a declaration that the Prime Minister’s advice to the Queen was
unlawful.
7. 5th September 2019: The Divisional Court (Lord Burnett, Sir Terence Etherton,
Dame Victoria Sharp) heard the case. They dismissed the claim, saying the issue
was not justiciable but granted a “leap-frog” certificate to allow the case to go to
the Supreme Court directly.
8. (17th-19th September 2019): Supreme Court Hearing : The Supreme Court heard
the Cherry and Miller appeals. Submissions were received from several parties,
including Scottish Government, Welsh Government, and Sir John Major. Due
to the constitutional importance of the case and disagreements between
English/Welsh and Scottish courts, an 11-Justice panel was convened.
Q No.13 : Relevant issues required determination for the Supreme Court
1. Whether the UKSC can examine the scope of advice surrounding prorogation? Is it
Justiciable in a court of law?
2. What is the criteria which would be used to adjudicate upon the legality of the advice
to prorogue made by the PM?
3. Whether this advice was unconstitutional in nature?
4. What would be the suitable remedy if the advice of the prime minister is determined as
unlawful?
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Q No. 14: What was the decision of Divisional Court (High Court)?
Parliament should be prorogued at the time and for the duration chosen, and his advice to
Her Majesty to that effect, were inherently political in nature, and there were no legal
standards against which to judge their legitimacy.
Q No. 15: Whether UKSC can review the advice of PM Advice to Queen with respect to
Prorogation?
A. Before considering the Justiciability question, UKSC discussed four Introductory
points****.
1. The power to order prorogate the parliament is a prerogative power. Constitutional
Responsibility rest with the PM as he is the only person who has to consider all
relevant interests including interests of parliament.
2. Courts can not decide purely political questions, however questions involving legal
issues related to politicians can confer jurisdiction over courts.
A. Cases of Proclamation : A king hath no prerogative power which the law of
the land allows him.
B. Entick vs Corrington : Searches of Private premises. Argument of Royal
Prerogatives. No authority lie with officer.
3. PM’s accountability to Parliament does not justify that courts cannot intervene.
Reasons :
A. Prorogation effect will prevent the operation of accountability.
B. The courts have a duty to give effect to the law, irrespective of the minister’s
political accountability to Parliament. the minister is politically accountable
to Parliament does not mean that he is therefore immune from legal
accountability to the courts.
I. Professor Wade : Ministerial responsibility is no substitute for
Judicial review.
II. Lord Diplock : Ex parte National Federation of Self-employed and
small Business : They are accountable to Parliament for what they
do so far as regards efficiency and policy, and of that Parliament is
the only judge; they are responsible to a court of justice for the
lawfulness of what they do, and of that the court is the only judge.
4. There will be no breach of separation of powers if the court review the opinion of
PM to Queen.
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(If Question ask : Whether it is Justiciable to review the advice of PM to Queen)?
Issue of Justiciability
For Justiciability purposes there are two issues:
1. Whether a prerogative power exists, and if it does exist, its extent.
2. Whether the power exercised within limits is subject to challenge on other
basis?
[To the extent of Issue No. 01, there is no debate of Justiciability. Relevant
authority is GCHQ case. Problem is related to Issue No. 02. Council of Civil
Service Unions : Lord Roskill highlighted excluded categories which cannot be
reviewed. ]
To determine the Justiciability it is important to set the standard to determine
the lawfulness of advice.
If Question Ask : By what standard is the lawfulness of the advice to be judged?
1. In principle, it is not a difficult task to determine the boundaries of a statutory power as it
is defined by text of statute. However, determination of boundary of prerogatives being
product of common law is difficult to determine. Every prerogative has limit. It is the duty
of the court to determine the boundary.
2. United Kingdom has uncodified constitution. Being a common law country, duty rest with
the courts. It is the duty of court to uphold the values and principles of constitution. On this
account, Courts are under duty to check whether any branch of government has trespassed
those rules.
3. Uncodified constitution does not include only statutory principles, but also have common
law principles. Purpose of the principles is to give protection to individual rights as well as
conduct of Public bodies. These constitutional principles are applicable to both powers
granted under statute as well as Royal Prerogatives. One example of principle is : Executive
can not exercise prerogative powers to deprive people of their property with out payment
of compensation (Burmah Oil case).
4. There are two constitutional principles which are relevant to present case. First principle is
related to parliament sovereignty. (If question ask about Parliament sovereignty)
I. Concept of parliament sovereignty is not restricted only to consider the status of
acts of parliaments. Many times courts have protected the parliament sovereignty
against attacks of executive in the form of Royal Prerogatives like cases of “Cases
of Proclamation – De Keyser’s Royal Hotel – Fire Brigade case”. In these cases,
executives bypassed the parliamentary laws.
II. Sovereignty of Parliament will be compromised on account of use of Royal
Prerogatives. If there will be no legal limit upon power to prorogue parliament, PS
will be in danger.
III. Statutory enactments like Triennial Acts of 1640, Bills of Rights 1688/9, Scottish
claim of Rights 1689, Northern Ireland (Executive Formation etc.) Act 2019 show
that power to prorogue should not be unlimited.
IV. Parliament cannot remain permanently in session. Sometimes they have to
prorogue the session. Practically, parliament can be prorogued for a short time. Its
effect over parliament legislative work is minimal.
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5. Second Principle which is relevant to this case is Parliamentary accountability. . (If
question ask about Parliamentary accountability):
I. Per Lord Carnwath (Miller I) case, it is not less important than Parliament
Supremacy
II. Ministerial Responsibility debate
III. Parliamentary accountability is justification for intervention of court as courts have
time and again intervened to have checks and balances over executives. (Ex P
Nottingham shire county council case).
IV. If the Parliament is prorogued for short period of time, principle of parliament
accountability will not be in jeopardy. If parliament stands prorogued for longer
period of time, there is a greater risk of harm to said principle.
V. What is the legal limit upon the power to prorogue which makes it compatible with
the ability of Parliament to carry out its constitutional functions? Court sought help
from situation : .. How the courts have dealt with situations where the exercise of a
power conferred by statute, rather than one arising under the prerogative, was liable
to affect the operation of a constitutional principle. Answer : Unless the terms of
the statute indicate a contrary intention, the courts have set a limit to the
lawful exercise of the power by holding that the extent to which the measure
impedes or frustrates the operation of the relevant principle must have a
reasonable justification. (The said test is for statutory power doctrine).
VI. Standard to determine lawfulness: Decision to prorogue Parliament (or to advise
the monarch to prorogue Parliament) will be unlawful if the prorogation has 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.
VII. How it will be determined that decision will affect parliamentary function? It is a
question of fact, like other question(s) of fact which court decided on daily basis.
VIII. The court must decide if the Prime Minister's reason for advising Parliament's
prorogation is reasonable. Normally, the desire to end one session and start another
justifies a short prorogation. Only in exceptional cases would more justification be
required. The court must respect the Prime Minister's responsibility in this matter,
considering political judgment and experience. However, it is the court's role to
ensure the Prime Minister stays within legal limits, and if not, to determine if the
situation warrants intervention.
If question ask : About conclusion of Justiciability?
The court believes that the question of whether the Prime Minister's advice to the Queen was lawful
is justiciable. It is well-established that courts can rule on the scope of prerogative powers, which
is what the court will do in this case. The legal standard applied does not focus on how the
prerogative power is exercised within its lawful limits, but rather on defining those limits,
balancing the prerogative power with constitutional principles like the sovereignty of Parliament
and responsible government. Therefore, the issue of prorogation is justiciable.
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Q No. 16 : What were argument of Mrs. Miller and Ms. Cherry with respect to Motive?
Arguments : Both Mrs. Miller and Ms. Cherry raised the ground that PM has the intention to
withdraw from EU without agreement. Majority in parliament opposed to withdrawal without an
agreement. Per appellants, there was a every possibility that parliament might legislate to prevent
such out come. On this basis, it can be argued that PM prorogued the parliament to prevent it from
exercising its legislative function.
Decision : Court held that we have no concerned with the Motive of PM. We are concerned
with reasons to prorogate. No sufficient reasons presented except a new speech of Queen.
Q No. 17 : Whether the advice of PM is lawful or not?
Being a democratic country, government is accountable to the House of Commons. As HoCs is
elected house. Issue : Whether PM’s action had the effect of frustrating or preventing the
constitutional role of parliament in holding the government accountable?
Court concluded that PM’s actions frustrated the constitutional role of parliament with respect to
accountable the government. Reasons are as follows :
a) It was not a normal prorogation. Circumstances are exceptional due to withdrawal from
EU.
b) It prevent parliament from carrying out constitutional role for five out of eight weeks
between recess and exist day from EU.
c) Parliament did not go into recess due to exceptional circumstances as parliament thought
that accountability is more important in this time.
d) It is a right of HoCs to check how change (a fundamental change in history of UK) came
about.
e) There is a serious apprehension to HoCs that Government may exist with out agreement.
Q No. 18 : Justification for PM’s action which frustrated parliament from legislative
business?
Court held that there is no justified reason for proroguing the parliament for 05 weeks. Discussion
is as follows :
a) As per presented document, there was no reason for closing the parliament except a new
Queens Speech.
b) Why for Queens Speech five week prorogation is needed?
c) Evidence of Sir John Major is clear. Government does not need five week time to put
together legislative Agenda. It is usually 4-6 days process.
d) The memorandum from Nikki da Costa does not explain why five weeks were needed to
prepare the Government's legislative agenda. It mentions a new session and Queen’s
Speech but lacks details on why the preparation time was so long.
e) The only reason provided for early action was completing the “wash up” within a few days,
disregarding other potential parliamentary business during the four-week period.
f) It ensured parliamentary time before and after the European Council meeting, but did not
clarify why Brexit-related business time was reduced.
g) It does not address the time needed to approve a new withdrawal agreement under the
European Union (Withdrawal) Act 2018.
h) It fails to discuss the impact of prorogation on scrutiny procedures for delegated legislation
to prepare UK law for Brexit.
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i) It omits the role of scrutiny committees in both Houses and consultations with the Scottish
Parliament and Welsh Assembly.
j) The memorandum misrepresents prorogation and recess as similar, ignoring their differing
implications.
k) The Prime Minister's dismissal of the September sitting as a “rigmarole” overlooks his
constitutional responsibility in advising the Queen.
Q No. 19 : What was held in the case of R v Chaytor?
The case concerned the prosecution of several Members of Parliament for allegedly making
false expenses claims. They resisted this on the ground that those claims were “proceedings in
Parliament” which ought not to be “impeached or questioned” in any court outside Parliament.
An enlarged panel of nine Justices held unanimously that MPs’ expenses claims were not
“proceedings in Parliament” nor were they in the exclusive cognizance of Parliament. It was
held that
a) The court will decided or determine the scope of exclusive cognizance of Parliament.
b) Focus of Article 09 is restricted to freedom of speech and debate in the Houses of
Parliament and in parliamentary committees.
c) Exclusive cognizance refers not simply to Parliament, but to the exclusive right of each
House to manage its own affairs without interference from the other or from outside
Parliament.
Q No. 20 : Whether Prorogation fall under proceedings of parliament?
Prorogation is not “proceeding in Parliament”. It is not a decision of either House of
Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is
not something upon which the Members of Parliament can speak or vote. The Commissioners
are 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 have no freedom of speech. This is
not the core or essential business of Parliament. Quite the contrary: it brings that core or
essential business of Parliament to an end.
Q No. 21: What was final decision of R (Miller) vs PM? (Remedy)
Appellants of case requested for declaration that Advice of PM was unlawful. Issue is, whether
Prorogation itself is unlawful on the basis of Art 09 Bill of Rights? To determine it, court
decided to start from scratch. Advice of PM was unlawful. It was outside the powers of the
Prime Minister to give it. This means 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. This 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.