11 October 2019

When preparing to write this article, I had hoped to be able to provide the next instalment of “Brexit – The (Legal) Definition of Frustration”, updating the position on whether Brexit counts as a frustrating event (at least in the legal sense).

This was the central question posed earlier this year in the case of Canary Wharf (BP4) T1 Limited & others v European Medicines Agency ([2019] EWHC 335 (Ch)). 

Unfortunately (or perhaps, fortunately, for those involved), reports now indicate that whilst permission to appeal the decision of the High Court in England was granted, an agreement has since been reached between the parties, and the proposed appeal will be withdrawn.

Fortunately for me, two other high profile appeal cases have emerged from England and Scotland in recent weeks. Both appeals culminated in the recent issue of an authoritative judgment by the UK Supreme Court in the case(s) of Miller/Cherry (No2) ([2019] UKSC 41).

In producing its judgment – within a remarkably tight timeframe - the Supreme Court was at pains to emphasise that this appeal related to one central question: whether certain advice given by the UK Prime Minister to the UK Sovereign was lawful. The Court determined, unanimously, that it was not.

In sifting through the numerous arguments put forward on all sides, the Supreme Court determined that four key aspects arose in answering this central question:

1. Justiciability

Whether answering the question required consideration of a legal point or rule.

2. Limits of prerogative power - general

Whether the (general) power or decision to prorogue “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” (paragraph 50).

3. Limits of prerogative power – in this case

Whether this particular prorogation did, without reasonable justification, frustrate or prevent Parliament’s ability to carry out its constitutional functions

4. If the limits of prerogative power had been breached, what remedy should be granted?

Finally, after considering all of the above, whether Parliament is, in effect, prorogued.

The answers to these questions were, respectively, yes, yes, yes, and no. The effect of this was to declare both the advice tendered to the Queen, and the prorogation of Parliament itself, as unlawful, and “null and of no effect” (paragraph 69).

Legal commentators will be reviewing and writing about this judgment for years to come. It is, in the words of the Supreme Court Justices themselves, a “one off”. There was no direct legal precedent on the central point, creating uncertainty as to what the Court would do, and what sort of order it would make. In the end, the Court didn’t really make any specific order, but instead opted to hand matters back to Parliament to determine what should happen next.

The Court clearly took the view that it had answered the key question posed, and that the impact of that answer required only for everything to go back to the way it had been. What the Court did provide, however, is a strong “test” for any future prorogation – it now seems apparent that the greater the impact on Parliament’s ability to function, the higher the required threshold is for justifying any such impact.

Linked Article: Brexit - The (Legal) Definition of Frustration

Contact: Eileen Sherry, Associate esh@bto.co.uk T. 0141 221 8012