There were two appeals, one from the High Court of England and Wales and one from the Inner House of the Court of Session in Scotland but it’s also important to stress that these cases were not about when and on what terms the United Kingdom is to leave the European Union.
They were only about whether the information given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a period between 9th and 12th September until 14th October, was lawful and the legal consequences if it was not.
This question arises in circumstances which have never occurred before and are unlikely to arise again, and conceivably, this is just a one-off.
Briefly, the Scottish case was brought by a cross-party group of 75 members of Parliament and a QC on 30th July because of their concerns that Parliament might be prorogued to circumvent further debate in the lead up to exit day on 31st October.
On 15th August, Nikki da Costa, the Director of Legislative Affairs at No 10, sent a memorandum to the Prime Minister, which was copied to seven people, civil servants and special advisers, recommending that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin with 9th-12th September and for a Queen’s Speech on 14th October, the Prime Minister ticked “yes” to that recommendation.
On 27th or 28th August, in a phone call, he formally advised Her Majesty to prorogue Parliament amid those dates. On 28th August, Mr Jacob Rees-Mogg, Leader of the House of Commons and Lord President of the Privvy Council, Mr Mark Harper, Chief Whip, and Baroness Evans of Bowes Park, Leader of the House of Lords, attended a meeting of the Privvy Council upheld by the Queen at Balmoral Castle.
An Order in Council was made that Parliament was to be prorogued between those dates and that the Lord Chancellor prepared and issue a commission for proroguing Parliament respectively.
A Cabinet meeting was held by conference call soon 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.
That same day, the settlement was made public and the Prime Minister sent a letter to all Members of Parliament explaining it and as soon as the ruling was declared, Mrs Miller began the English proceedings challenging its authenticity.
Parliament returned from the summer break on 3rd September and the House of Commons voted to decide for themselves what business they would conclude. The next day what became the European Union (Withdrawal) (No 2) Act passed all its stages in the Commons and it passed all its stages in the House of Lords on 6th September and gained royal assent on 9th September.
The purpose of that Act was to stop the United Kingdom leaving the European Union without a withdrawal agreement on 31st October.
On 11th September, the High Court of England and Wales passed judgment rejecting Mrs Miller’s claim on the ground that the matter 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, and that it was driven by the improper purpose of stymying Parliamentary inspection of the Government, and that it, and any prorogation which succeeded it, were illegal and therefore meaningless and of no consequence.
Mrs Miller’s appeal against the English settlement and the Advocate General’s appeal against the Scottish decision were heard by the court from 17th to 19th September and because of the importance of the case, a council of 11 Justices were assembled, the highest number of serving Justices who are authorised to assemble. The judgment was the collective judgment of all 11 Justices.
The primary question is whether the legality of the Prime Minister’s recommendation to Her Majesty was justiciable, the Court held that it was.
