[2019] ewhc 2381 (qb)

She explained that the Prime Minister had to make two decisions. The regulation changing the “exit day” was made the next day (European Union (Withdrawal) Act 2018 (Exit Day) (Amendment No 2) Regulations 2019 (SI 2019/859)). Fourthly, if the issue before the court is justiciable, deciding it will not offend against the separation of powers. A series of technical arguments was raised by Sir James to point to the practical impossibility of such a course, including the need for the vote of funds to govern and the need annually to extend the Armed Forces Act 2006. Hier sollte eine Beschreibung angezeigt werden, diese Seite lässt dies jedoch nicht zu. The extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions and its supervision of the executive is a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts. The starting point taken by Lord Pannick is his characterisation of the principle of Parliamentary Sovereignty. They had been issued long before the order to prorogue Parliament had been made in the context of a growing concern that the Prime Minister might secure prorogation either side of the date appointed by statute for the departure of the United Kingdom from the European Union, currently 31 October 2019. That standard is one that can be applied in practice. There is also a cogent case that the Prime Minister's decision is vitiated by an improper purpose and/or by improper or irrelevant considerations, that is, to strengthen the Government's negotiating position with the European Union by frustrating Parliamentary activity to 'block' a 'no-deal' exit from the European Union. Further, rather than categorising certain prerogative powers as justiciable, and others as not, the correct approach for the court is to proceed with caution (and sometimes extreme caution) when considering whether there is any legal basis for a complaint, and the 'higher the policy context' the less likely that is to be. The issue whether there was a public emergency threatening the life of the nation was justiciable because it arose for consideration under the Human Rights Act 1998; but the principle Lord Bingham articulated reflects the approach of the courts in deciding the question of justiciability of prerogative powers where questions do not arise in a statutory context or which affect individual rights. The opposition has decided thus far not to table a motion of no confidence in the Government. The court has to address the argument of counsel for the Prime Minister that there are no circumstances whatsoever in which it would be entitled to review a decision that Parliament should be prorogued (or ministerial advice to that effect). This denial was repeated in revised Answers dated 23rd and 27th August. We do know the contents of three documents leading up to that advice, annexed to a witness statement from Jonathan Jones, Treasury Solicitor and Head of the Government Legal Department. Page 16 41. Prorogation is different from dissolution. Prorogation also prevents Parliament from performing its other 'scrutiny' functions which inform its decisions on this vital issue of public policy. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. 37. 30. All depends on the context. 11. Secondly, the purpose of the power of prorogation is not confined to preparations for the Queen's Speech. An individual member takes part in a proceeding usually by speech, but also Page 24 by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking.” 68. Even in such a case, when considering the justification put forward, the court would have to bear in mind that the decision whether to advise the monarch to prorogue Parliament falls within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment. The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. It entails the right of Parliament to make any law it sees fit and is therefore 'engaged' by a decision of the Executive to advise the Queen to exercise a prerogative power in order to 'prevent or impede' Parliament from sitting and making law as it thinks appropriate. In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers. He submits that the Prime Minister's advice to Her Majesty to prorogue Parliament is an unlawful abuse of power, substantially influenced by extraneous and improper considerations, and the court has a duty to intervene on ordinary public law principles, albeit recognising the wide discretion accorded to the Prime Minister. judgment given the same day, [2019] EWHC 2832 (QB) (“the Without Notice Judgment”), explained the Judge’s reasoning. The question of justiciability comes first, both as a matter of logic and of law. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. Almost all important decisions made by the Executive have a political hue to them. Members of the House of Commons cease to be Members of Parliament. On Wednesday 4 September Lord Doherty sitting in the Outer House of the Court of Session dismissed the claim. The reason why primary legislation enacted thus far about withdrawal from the European Union has not included provisions to regulate the position as exit day draws closer is because Parliament intended and understood that its ability to act and supervise would remain intact. That was settled by the House of Lords in. In addition to the written and oral submissions of the principal parties, we had written and oral submissions from the Lord Advocate, for the Scottish Government; from the Counsel General for Wales, for the Welsh Government; from Mr Raymond McCord, who has brought proceedings in Northern Ireland raising various issues relating to Brexit, but has not been permitted to proceed to challenge the lawfulness of the prorogation given that the Scottish and English challenges were already well-advanced; and from Sir John Major, a former Prime Minister with firsthand experience of prorogation. Amongst the consequences of prorogation are that no legislation may be discussed or passed, no questions asked of ministers and select committees do not continue to function. Thirdly, again as we have already said, even if the prorogation in the present case must be justified as being to enable preparations for the Queen's Speech, the decision how much time to spend and what decisions to take for such preparations is not something the court can judge by any measurable standard. However, it appears to us that, as Parliament is not prorogued, it is for Parliament to decide what to do next. This is a prerogative power exercised by the Crown on the advice of the Privy Council. Sir John’s evidence is that he has never known a Government to need as much as five weeks to put together its legislative agenda. They have no freedom of speech. It makes provision for the repeal of the European Communities Act 1972 and (in broad terms) for the retention in domestic law of much European Union law on exit day. The purpose of prorogation is not limited to preparing for the Queen’s Speech…Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review (at paras. In that regard, Lord Roskill mentioned at p 418 the dissolution of Parliament as one of a number of powers whose exercise was in his view non-justiciable. Many came too late to enable the parties to deal with any submissions within the very tight timetable to which we were operating. There had been five occasions since 1980 when Parliament stood prorogued for more than ten days, the longest being 21 days. The Northern Ireland (Executive Formation etc) Act 2019 received Royal Assent on 24 July 2019. 17. 22. Lord Garnier QC, Tom Cleaver and Anna Hoffmann (instructed by Herbert Smith Freehills LLP) for the Third Intervener Quite the contrary: it brings that core or essential business of Parliament to an end. 56. We took steps to ensure that the Lord Speaker and Speaker were notified of the proceedings but, entirely understandably, neither chose to place submissions before the court. It is now well established, and was common ground before us, that decisions and actions of the Executive are not immune from judicial review merely because they were carried out pursuant to an exercise of the Royal Prerogative. Asking for prorogation to commence within the period 9th to 12th September was recommended.