REGNO UNITO. LA CHIUSURA DEL PARLAMENTO E’ ILLEGALE
(27 Settembre 2019)
LONDRA. La chiusura del parlamento decisa a fine agosto dal Primo Ministro Boris Johnson è illegale e mai avvenuta.
E’ quanto ha sentenziato il 24 settembre la Corte suprema del Regno Unito (UKSC) con la sentenza n. 192 che ha di
fatto e di diritto imposto la riapertura delle Camere invalidando il decreto reale con cui il 28 Agosto era stata
disposta la sospensione dei lavori parlamentari a Westminster dal 10 Settembre al 14 Ottobre.
La sentenza, che qui di seguito riproduciamo, ha riaperto il dibattito sulla Brexit e sulla sua realizzazione. Il 9
Settembre è stata emanata una leggina votata a tambur battente dalle Camere che stabilisce il rinvio della Brexit
al 31 Gennaio 2020 qualora entro il 19 ottobre 2019 non venga annunciato un accordo soddisfacente tra Regno Unito
ed UE. Tuttavia Boris Johnson, che il 24 Luglio scorso è divenuto Primo Ministro su una piattaforma programmatica
che prevede la Brexit anche senz’accordo per la fine d’ottobre, ha promesso che il giorno di Halloween Londra
uscirà, impicitamente affermando che la leggina appena approvata sarà violata.
Quindi, unitamente a tutto il resto, il governo Johnson sembra dirigere il paese verso uno scontro istituzionale ed
una crisi costituzionale che ha pochi precedenti.
Ecco comunque il testo della sentenza della Corte suprema britannica emanato pochi giorni fa, debitamente
paragrafato e titolato da me a beneficio di chi fatica a leggere l’inglese.
24 September 2019
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v
Advocate General for Scotland (Appellant) (Scotland)
On appeals from:  EWHC 2381 (QB) and  CSIH 49
JUSTICES: Lady Hale (President), Lord Reed (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge,
Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin, Lord Sales
In giving the judgment of the Court Lady Hale said:
We have before us two appeals, one from the High Court of England and Wales and one from the Inner House of the
Court of Session in Scotland. It is important, once again, to emphasise that these cases are not about when and on
what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the
Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a date
between 9th and 12th September until 14th October, was lawful and the legal consequences if it was not. The
question arises in circumstances which have never arisen before and are unlikely to arise again. It is 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 concern that Parliament might be prorogued to avoid further debate in the lead up to exit day on
31st October. On 15th August, Nikki da Costa, Director of Legislative Affairs at No 10, sent a memorandum to the
Prime Minister, 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 within 9th to 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 telephone call, he formally advised Her Majesty to prorogue Parliament between those
dates. On 28th August, Mr Jacob Rees-Mogg, Leader of the House of Commons and Lord President of the Privy Council,
Mr Mark Harper, chief whip, and Baroness Evans of Bowes Park, Leader of the House of Lords, attended a meeting of
the Privy Council held by the Queen at Balmoral Castle. 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, Mrs
Miller began the English proceedings challenging its lawfulness.
Parliament returned from the summer recess on 3rd September. The House of Commons voted to decide for themselves
what business they would transact. The next day what became the European Union (Withdrawal) (No 2) Act passed all
its stages in the Commons. It passed all its stages in the House of Lords on 6th September and received royal
assent on 9th September. The object of that Act is to prevent the United Kingdom leaving the European Union without
a withdrawal agreement on 31st October.
On 11th September, the High Court of England and Wales delivered judgment dismissing Mrs Miller’s 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.
Mrs Miller’s appeal against the English decision and the Advocate General’s appeal against the Scottish decision
were heard by this court from 17th to 19th September. Because of the importance of the case, we convened a panel of
11 Justices, the maximum number of serving Justices who are permitted to sit. This judgment is the unanimous
judgment of all 11 Justices.
1. E’ LEGITTIMO PER LA CORTE SUPREMA GIUDICARE UN DECRETO REALE?
The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This
Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the
Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no
prerogative but that which the law of the land allows him”. However, in considering prerogative powers, it is
necessary to distinguish between two different questions. The first is whether a prerogative power exists and if so
its extent. The second is whether the exercise of that power, within its limits, is open to legal challenge. This
second question may depend upon what the power is all about: some powers are not amenable to judicial review while
others are. However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of
a prerogative power. All the parties to this case accept that. This Court has concluded that this case is about the
limits of the power to advise Her Majesty to prorogue Parliament.
2. IN CHE MISURA PUO’ ESSER FISPOSTA LA SOSPENSIONE DEI LAVORI PARLAMENTARI?
The second question, therefore, is what are the limits to that power? Two fundamental principles of our
Constitution are relevant to deciding that question. The first is Parliamentary sovereignty – that Parliament can
make laws which everyone must obey: this would be undermined if the executive could, through the use of the
prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second
fundamental principle is Parliamentary accountability: in the words of Lord Bingham, senior Law Lord, “the conduct
of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the
heart of Westminster democracy”. The power to prorogue is limited by the constitutional principles with which it
would otherwise conflict.
For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise
the monarch to prorogue) 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. In judging any justification which might be put
forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and
proceed with appropriate caution.
If the prorogation does have that effect, without reasonable justification, there is no need for the court to
consider whether the Prime Minister’s motive or purpose was unlawful.
3. LA SOSPENSIONE DEI LAVORI PARLAMENTARI PUO’ IMPEDIRE ALLE CAMERE DI CONTROLLARE IL GOVERNO MINUTO PER MINUTO?
The third question, therefore, is whether this prorogation did have the effect of frustrating or preventing the
ability of Parliament to carry out its constitutional functions without reasonable justification. This was not a
normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional
role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October.
Proroguing Parliament is quite different from Parliament going into recess. While Parliament is prorogued, neither
House can meet, debate or pass legislation. Neither House can debate Government policy. Nor may members ask written
or oral questions of Ministers or meet and take evidence in committees. In general, Bills which have not yet
completed all their stages are lost and will have to start again from scratch after the Queen’s Speech. During a
recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual. This
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 31st October. Parliament, and in
particular the House of Commons as the elected representatives of the people, has a right to a voice in how that
change comes about. The effect upon the fundamentals of our democracy was extreme.
IL GOVERNO NON HA PORTATO SERIE MOTIVAZIONI.
No justification for taking action with such an extreme effect has been put before the court. The only evidence of
why it was taken is the memorandum from Nikki da Costa of 15th August. This explains why holding the Queen’s Speech
to open a new session of Parliament on 14th October would be desirable. It does not explain why it was necessary to
bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for
the Queen’s Speech is four to six days. It does not discuss the difference between prorogation and recess. It does
not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation
necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st
October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new
withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.
The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was
unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its
constitutional functions without reasonable justification.
DOMANDA FINALE: QUANTO E’ LEGALE IL PROVEDIMENTO DECISO DAL PRIMO MINISTRO?
The next and final question, therefore, is what the legal effect of that finding is and therefore what remedies the
Court should grant. The Court can certainly declare that the advice was unlawful. The Inner House went further and
declared that any prorogation resulting from it was null and of no effect. The Government argues that the Inner
House could not do that because the prorogation was a “proceeding in Parliament” which, under the Bill of Rights of
1688 cannot be impugned or questioned in any court. But it is quite clear that the prorogation is not a proceeding
in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is
not their decision. It is something which has been imposed upon them from outside. It is not something on which
members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights
protects. Quite the reverse: it brings that core or essential business to an end.
SENTENZA FINALE: LA PROROGA DELLA SESSIONE E’ ILLEGALE E COME MAI AVVENUTA.
This Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no
effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be
quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in
with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.
This is the unanimous judgment of all 11 Justices.
It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is
some Parliamentary rule of which we are unaware, they can take immediate steps to enable each House to meet as soon
as possible. It is not clear to us that any step is needed from the Prime Minister, but if it is, the court is
pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any
declaration made by this court.
It follows that the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is
allowed. The same declarations and orders should be made in each case.