The case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland dealt with whether the advice given by the UK Prime Minister to Her Majesty the Queen to prorogue Parliament (that is, discontinue its session) for a number of days between September and October 2019 was lawful.

The Supreme Court is the highest court in the United Kingdom. Similar to our Constitutional Court it is the final court of decision. It hears cases which the court considers to be important points about the United Kingdom laws and how they should be interpreted and applied.

The full panel of eleven Judges, called Justices, heard the matter which was dealt with as appeals from courts in Scotland and England. The court of England said the suspension was legal and the Scottish court said the suspension of Parliament was unlawful.

The decision of the Supreme Court of Appeal was unanimous. The Judges held that parliament had not been prorogued and the decision to suspend parliament was null and void.

In giving judgment the Supreme Court of Appeal looked at the question whether the lawfulness of the Prime Ministers’ advice to the queen was justiciable. The court held it was. The courts have exercised a supervisory jurisdiction over the acts of government of the United Kingdom for centuries. The court referred to a decision in 1611 where the court held ‘the King (who was then the government) hath no prerogative but that which the law of the land allows him’. All the parties to the case accepted the courts’ sub-jurisdiction to decide upon the existence and limits of a prerogative power.

The second question was what are the limits of that power? The court found that a decision to prorogue would be unlawful if the prorogation had the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as the legislature and as the body responsible for the supervision of the executive. The prorogation in this case was unlawful because it had that effect, without reasonable justification.

There was no need for the court to consider whether the Prime Minister’s note of purpose was unlawful (and the court did not pronounce on that). The advice was unlawful, void and had no effect. Accordingly the prorogation was also void and had no effect. The Parliament had not been prorogued.

The Justices are appointed by the queen on the recommendation of a panel of legal experts from each of the United Kingdom’s nations. Candidates must have been a high court judge for at least two years or a practising lawyer for 15 years. The Supreme Court President is Lady Hale.

As in South Africa the courts are one of the three branches of Government, the others being the executive and the legislature (Parliament).

Unlike South Africa the United Kingdom does not have a written constitution. Its constitution is based on hundreds of years of laws and convention including judgments by its courts.