Miller Case Evidence Against Her Rather Than In Her Favour

It seems that there is doubt over the veracity of the Scottish Court decision because “Court rulings were “not about politics” which are what closed Parliament. The Queens Bench Division has already decided that the Miller claim is not capable of being determined by the courts because of well established and conventional grounds. And, also, that case law is against the claimant rather than in her favour.

R (Gina Miller) v The Prime Minister [2019] EWHC 2381
Neutral Citation Number: [2019] EWHC 2381 (QB). Case No: CO/3385/2019
In The Queens Bench Division
The Rt Hon the Lord Burnett of Maldon Lord Chief Justice of England and Wales
The Rt Hon Sir Terence Etherton Master of the Rolls
The Rt Hon Dame Victoria Sharp DBE President of the Queen’s Bench Division

The court concludes on well established and conventional grounds that the claim is non justiciable – that is, it is not capable of being determined by the courts.

A decision to prorogue Parliament is a prerogative power, a discretionary power still in the hands of the Crown. Such a decision is formally made by the Sovereign on the advice of the Privy Council. By constitutional convention the Sovereign invariably acts on the advice of the Prime Minister. [4]

Decisions and action of the Executive branch of government are not immune from judicial review merely because they are carried out pursuant to an exercise of the royal prerogative. [34] The first question when considering the court’s power to review the exercise of prerogative powers is whether the subject-matter of the power is non-justiciable. [40]

The court rejects the claimant’s submission that it should explore the facts first to decide whether there has been a public law error, and then turn to justiciability. The question of justiciability comes first as a matter of logic and law. [41]

The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of high policy or are political. In this way the courts have marked out the separation of power between the Judicial and the Executive branches of government, a fundamental feature of our unwritten constitution. In this context the essential characteristic of a political issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action. [42]

The refusal of the courts to review political questions is well-established. [43] – [50] The defendant’s evidence is that a number of considerations were taken into account by the Prime Minister. They included the need to prepare the Government’s legislative programme for the Queen’s Speech; that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations; that a number of days falling within the period of prorogation would ordinarily be recess for party conferences; that the parliamentary session had been longer than for the previous 40 years; and that it was increasingly difficult to fill parliamentary time with appropriate work. All of those matters involved intensely political considerations. [10] – [14][51]

Both the decision of the Prime Minister that Parliament should be prorogued at the time and for the duration chosen and the advice given by the Prime Minister in the present case were inherently political in nature and there are no legal standards against which to judge their legitimacy. [51]

There is no legal measure of the length of time between Parliamentary sessions, nor even a constitutional convention which governs that matter, albeit constitutional conventions are not justiciable. [54] Parliament may be prorogued for various reasons, including political reasons, and there is no statute, law or convention which requires Parliament to sit in constant session. [55]

If the primary purpose of prorogation is to undertake preparations for the Queen’s Speech, it would be impossible for the court to decide whether the period of prorogation is excessive as it would require the court to examine and assess how much time it is legitimate for the Government to spend on its preparations in relation to each aspect of its proposed legislative programme, a purely political matter. [56]

It is also impossible for the court to assess by any measurable standard how much time is required to hold the Government to account, including by passing legislation that would require the Prime Minister to take steps to avoid leaving the European Union without an agreement. This is graphically illustrated by the speed with which the European Union (Withdrawal) (No 6) Bill has been enacted. The ability of Parliament to move with speed when it chooses to do so undermines the underlying premise of the case for the claimant that prorogation would deny Parliament the opportunity to do precisely what it has now done. [57]

The claimant seeks to circumvent these difficulties by advancing a novel argument resting on Parliamentary Sovereignty [58]. The analysis founders for a number of reasons. Alongside the principle of Parliamentary Sovereignty, the separation of powers, reflecting the different constitutional areas of responsibility of the courts, the Executive and Parliament is a fundamental principal of our unwritten constitution; the line of separation is set by the courts by reference to whether an issue is one of high policy, or political or both and on the facts, the decision in this case was political.

The purpose of prorogation is not confined to preparations for the Queen’s speech but may be used for a number of different reasons, which may, depending on the facts and circumstances, extend to obtaining a political advantage. Even if prorogation must be justified as being to enable preparations for the Queen’s speech, the decision is not something the court can judge by any measurable standard. [59]-[60]

The concept of Parliamentary Sovereignty recognises that the Queen in Parliament is able to make law by primary legislation without legal restraint, save as Parliament has imposed on itself for the time being. [61] The claimant’s novel and wider legally enforceable concept of Parliamentary Sovereignty, distilled to its essence as the ability of Parliament to conduct its business unimpeded, is not supported by the passages from the authority relied on [62].

It also runs into similar difficulties of identifying measures against which allegedly offending action may be judged. There is another fundamental objection to the claimant’s expanded concept of Parliamentary Sovereignty. This is that it has been fashioned to invite the judicial arm of the state to exert hitherto unidentified power over the Executive branch of the state in its dealing with Parliament. [63]

The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the State; the relationship between the Executive and Parliament is governed in part by statute and in part by convention. Standing Orders of both Houses elaborate the procedural relationship between the Executive and Parliament. This is territory into which the courts should be slow to intrude by recognising an expanded concept of Parliamentary Sovereignty. [64]

2 thoughts on “Miller Case Evidence Against Her Rather Than In Her Favour

  1. stodgey

    Have you noticed just how unbelievably quickly these cases, supposedly brought by ordinary members of the public are getting to court? From submission to verdict at the Supreme Court in little over a week. It’s bloody amazing, isn’t it? Compare and contrast Robin Tilbrook’s efforts to try and get a verdict in court that we actually left on the 29th March……..

    Months and months of delays and body-swerving by the judiciary.

    1. westlancashirerecord Post author

      Yes, it’s the establishment with all the privileges of power and money. I see the Belfast judiciary have found against the third legal challenge to Brexit as un-mistakenly political, which makes me wonder how the Edinburgh judiciary found it so different. And now, another bid in Edinburgh to enforce Article 50. Strange how pliable the Edinburgh judiciary are. Or perhaps not?


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