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(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: [2019] EWHC 2381 (QB) and [2019] 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.




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.



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.



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.



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.



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.



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.

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