 Good evening everyone My name is Arjun Dhar and on behalf of the speaker secretaries of the Cambridge University Law Society It is my great pleasure to welcome all of you to this talk on Miller number two the case of the decade This evening. We are very privileged to have one of the varistors in Miller number two Lord panic QC Share his thoughts on this seminal case Before I introduce our guests, I'm going to run through the format of the event The event will last approximately one hour Lord panic will speak for about 40 minutes and we'll take questions for the remainder After the event, there'll be a drinks reception at the lower ground level of the Law faculty to which everyone's invited Without further ado, it's my privilege to introduce our guest speaker this evening As one of the UK's most highly regarded advocates Lord panic is a well-known name to try for students He practices at blackstone chambers in London in a broad range of areas with a particular emphasis on public law and human rights and constitutional law He studied law at Hartford College Oxford where he graduated with a BA and BCL degree thereafter, he was called to the bar at Grey's Inn in 1979 taken silk in 1992 Lord panic has acted in a large number of the leading public law cases of the last 25 years Appearing in 100 cases in front of the Appellate Committee of the House of Lords more than 20 cases in the Supreme Court since its creation in 2009 and More than 25 cases in the European Court of Justice in Luxembourg In the world of academia Lord panic has been a fellow of all souls College Oxford since 1978 and an honorary fellow of Hartford College Oxford since to 2004 Please join me in welcoming Lord panic In the summer of 2019 the Constitution Committee of the House of Lords of which I am a member conducted an inquiry into the fixed-term Parliament act and we asked a number of Distinguished servants of the Crown what would happen if at the end of the day a Prime Minister acted in an unconstitutional manner and One of them told us our job is to make sure that we never get to the end of the day The prorogation case, so that's how civil servants work The prorogation case is a very rare example of Judicial intervention being required after the end of the day As you all know on the 24th of September last year Lady Hale the president of the Supreme Court and Lord Reed the deputy president Announced the decision of the unanimous court of 11 judges They said that the Prime Minister Boris Johnson had unlawfully Advised her Majesty to prorogue that is suspend Parliament for five weeks As a matter of law said the court Parliament had not been prorogued When the Royal Commission had attended Parliament for the prorogation ceremony on the 9th of September It was I quote as if the commissioners had walked into Parliament with a blank piece of paper Unquote the next day Parliament resumed and the Speaker of the House of Commons John Burkow Announced that he had directed that the Journal of Parliamentary Proceedings For the 9th of September in relation to prorogation Be Expunged his work with John Burkow Words great work. It should be expunged the record and replaced by a new entry Recording that the house had simply been adjourned it was the parliamentary equivalent of the episode in the 1980s television series Dallas Most all of you are far too young to remember Which revealed that the previous series in which Bobby Ewing Had died was just a bad dream I want to mention some aspects of the background of this remarkable case and some of its constitutional Implications I've caused to clear my interest as counsel for one of the claimants Mrs. Miller now you all know prorogation is the term that's used to describe the end of a parliamentary session brought about other than by the Dissolution of Parliament leading to a general election and the purpose of prorogation Is simply to allow for arrangements to be made for a Queen's speech That starts a new session of Parliament setting up the government's legislative program This normally happens on a yearly basis and during prorogation Parliament does not meet Legislation can't be considered by either house There are no debates. You can't ask parliamentary questions or ministers and committees can't carry out their normal work of conducting inquiries Publishing reports and all of this suspension of parliamentary activity is normally very unimportant It's insignificant because it is temporary As stated in a House of Commons library paper in the last 40 years I've voted in the last 40 years Parliament has never been prorogued for longer than three weeks In most cases it's been prorogued for only a week or less On this occasion the prorogation was for an exceptionally long period of time at some five weeks From the 9th of September until the 14th of October and the length of the prorogation was a special significance Because the effect of the European Union withdrawal act as amended was that part that was the United Kingdom Was going to leave the EU you will remember on the 31st or October unless an extension was agreed So this prorogation for five weeks meant that Parliament was going to be closed for 34 of the 52 calendar days prior to the 1st of November and that would have resulted in the loss of 19 ordinary sitting days for Parliament Assuming that Parliament wasn't going to sit in the corner, doesn't on a Friday or a week hence And those were days when Parliament could have debated the highly contentious issues of Further terms on which we should be leaving the EU and indeed at that stage the issue of whether this should have been a further referendum Now on the Wednesday 28th of August I was on a safari holiday with my family in Botswana looking at wild animals And a text message came through that the wild animals in Westminster For a parliament for five weeks We that's the other councillor I was working in solicitors were already well advanced to bring a challenge to a prorogation Because you may remember in July last year After winning the Conservative Party leadership election Boris Johnson had expressly refused to rule out prorogation as a means to help ensure that this country left the EU and We've been advising and we've been preparing proceedings on the basis that the prorogation would begin before And end after the 31st of October In order to ensure that Brexit was accomplished on the 31st of October That's what we feared the Prime Minister was going to do. Parliament would simply not be sitting in the few days leading up To a few weeks leading up to Brexit day And what was announced was much more subtle than that is allowed for Parliament to resume sitting Two and a half weeks before Exit day on the 31st of October, but the documents were ready And so we were able to start proceedings in the High Court the next day on Thursday the 29th of August Challenging the legality of what the Prime Minister had done I arrived back From Botswana at Heathrow Airport early on Monday the 2nd of September I went straight into chambers to prepare the case in the divisional court and we were in court that Thursday the 5th of September and It didn't go very well. I began the proceedings by Mentioning that it was the first case that my very junior junior Warren Fitz Had ever been involved in and I told him that He shouldn't expect that every one of these cases would be before the Lord Chief Justice, the Master of the Roles And the President of the Queen's Bench Division And that got a laugh, but unfortunately so did the rest of my Because the divisional court announced the next day on the Friday That the Prime Minister's advice to Her Majesty was a political matter To which legal standards simply could not be applied That was the ruling and the critics of the Supreme Court judgment have essentially echoed That fight and I'll come back to that The case was always going to go to the Supreme Court and before it did it was heard of the Supreme Court Two weeks later the 17th of the 19th of September Before it did we had the enormous boost Of the decision by the Inner House of the Court of Sessions Scotland In very similar proceedings brought by Joanna Sherry the SMP MP and the Scottish Court found They heard some high octane advocacy from Aiden O'Neill They found that the Prime Minister's advice was unlawful because it was motivated. This is what the Scottish Court found motivated By the Prime Minister's fear That Parliament would simply undermine his negotiating position with the EU Well, it was an Aiden O'Neill who saw the proceedings Who is advocacy in the Supreme Court was also very high octane The issue as I've indicated was whether this was a political issue Or a legal matter and he began his submissions by referring to the battle of Bannetburn Oliver Cromwell Abraham Lincoln and Nelson Mandela And he told the Supreme Court that the Prime Minister was the father of lies Seeking to close down the mother of Parliament I was less high octane than my submissions It was clear from the start of the hearing in the Supreme Court But the justices were concerned about whether it was consistent with basic principles about constitutional law for the Prime Minister to prevent scrutiny by Parliament of his decisions on very important issue for five to seven and a half weeks prior to Brexit day without any explanation being given to the Court as to why a prorogation of that length was Required and the Supreme Court was I think understandably much more interested in the effect of prorogation Than the motives of the Prime Minister, which as I said is what concerned the Scottish Court The government's case was severely handicapped By the Prime Minister's failure to file a witness statement either by himself Or by the cabinet secretary explaining Why a five week prorogation was needed? There were very strong rumors That senior civil servants had refused to sign draft witness statements that told only as they saw it part of the story But we had no evidence that effect and the court was simply faced with no witness statement other than the Treasury solicitors witness statement which exhibited some Documents one of those documents Was revealed was very damaging. It was a memo in the Prime Minister's own handwriting saying To his advisers there was no need for concern that Parliament would not be sitting in September As such a sitting was quote a rigmarole Introduced by a quote girly swat unquote that's David Cameron To show the public that MPs were earning their crust Well, the powerful judgment I think it is a powerful judgment of Lady Hale and Lord Reed For a unanimous Supreme Court level Ensured the transformation of this case from what many observers and dismissed as at best a speculative legal argument To what is now widely Although not universally Regarded as a plain and obvious conclusion Now Boris Johnson Went on television that Sunday Sunday the 29th of september just after the Judgment and he told Andrew Ma on the BBC one that the supreme court decision was quote novel and peculiar unquote I don't know about peculiar but in one sense this was new law Critics of the judgment are undoubtedly right to say that there is no previous case In which our courts have held that prime ministerial advice to the Queen On the prorogation of Parliament was unlawful. There's no previous case But there is a very good reason For that prior to this episode no prime minister in this country Had so abused his or her powers in this respect that the courts have been asked to intervene at least in the period Since the 1970s when modern Principles of judicial review have been applied In this country prorogation as I've said In the last 50 years or so has always been an uncontroversial matter However, this is not new law as I see it in that the relevant legal principles are very well established The powers of prorogation is a prerogative power That is it's a power not set out in statutes Although section six of the fixed term parliament act 2011 does refer to The existence of this power But it's been the law since the decision by Chief Justice Cook in 1611 That a quote of the king now the executive had no prorogative But that's which the law allows him unquote in other words, it's for the courts to decide On the scope of prorogative powers. There's nothing novel about that. There's many cases in the 20th century where courts have assess the legality of exercises of prorogative powers and when courts do do assess the Legality of the exercise of prorogative powers they apply the standard principles of judicial review That has been developed and repeatedly restated over the past 50 years a power May only be exercised by assessing relevant factors May only be exercised for a proper purpose in a reasonable manner And if there's any doubt about that the court will look to see whether the proponent of the power has given a reason for exercising the power at all or in that way And the courts were applying a further well-established legal principle The principle of our constitutional law Like all principles of our constitutional law unwritten But nonetheless a principle and the principle is that parliament is sovereign And the executive led by the prime minister Is answerable to parliament And therefore as the supreme court accepted The court has a special responsibility to prevent any abuse or The prorogative power the power to prorogue parliament especially if the abuse is said to come from a government whose prorogation parliament has the effect of impeding the ability of parliament to supervise the actions of the executive So these principles, I think Created a very strong legal basis for a judgment that the executive could not use its prorogative power to silent parliament during an important period of time and certainly Without the executive stating a reason a good reason for doing so And as I've indicated the prime minister advanced no coherent reason for wanting a five-week prorogation So I do not agree won't surprise you to go. I don't agree With critics of the judgment Who say that the miller case is an example of I quote the judicialization of politics And the politicization Of the judicial process that's in charge made by professor richard ekins Who's a professor of law of law at a very serious university opposite university? And his head on policy exchanges judicial power project And that's what he told the house of commons public administration and constitutional affairs committee On the 8th of october last year. This was the judicialization of politics and the politicization of the judicial process very serious allegations And I I don't agree with that. I think I think this was an example of judges performing their constitutional role to remedy what they saw as an abuse of power It was the court saying to the government You have exercised a power very important power In a manner which has a very damaging effect On parliamentary sovereignty Which is one of the core principles of our constitution You've done this at a crucial time And you are unable to articulate the reason For requiring such a lengthy suspension of power I was very pleased to see that the judgment of the court was welcomed As a conventional application of well-established Constitutional norms by Lord Sumption Who you know is recently retired From the supreme court and a formidable critic In his reflexions of what he has regarded As the judiciary's eagerness In some cases to intrude Into political issues So he's not shy of saying that the judges Intrude into what should remain political issues But not in this case Lord Sumption's response to the Miller judgment Was to say in his evidence to the same committee that heard from Professor Ekins That he Lord Sumption thought that there is an important difference between the courts intervening In relation to a question of policy And I quote the court simply saying As they've done in their recent decision That this is a matter on which parliament Must be enabled to make decisions So he Lord Sumption thought this wasn't a challenge by the courts To any parliamentary decision It was a challenge by the courts To a decision of the executive To prevent parliament from sitting And he thoughts for Sumption that that was entirely appropriate Nor do I agree with the critics who've said That That the courts gave the game away in paragraph one of the judgment when it said this case was a one-off And what the court did Was not as has been alleged Recognized that it was unable to lay down standards By reference to which the legality of prerogations could be assessed What the court was saying Is that when it applies the public law standards reasonably as proper purpose matters of that sort The court recognizes That the decision maker here the prime minister has A discretionary margin of judgment And the court does not sit on appeal To remake the decision as it seems fit Task of the court is simply to say whether the decision is so far removed from what is permissible That it is unlawful And it's not the task of the court To define the boundary Between what is permissible And what is impermissible This was part of the The the governments legal argument you can't say where the boundary lies Can't say precisely what is how long the prerogation is permissible. That's not the court's task The judge's function is to decide whether this exercise of power That is a five-week prerogation in circumstances is on the right side of the line Or the wrong side of the line Two further points I want to mention The first is to go back to Lord Sumption because he's made another point in his evidence It was on the 8th of October to the House of Commons Public Administration and Constitutional Affairs Committee And he Lord Sumption said That if Instead of giving no reason To the Supreme Court for wanting a five-week prerogation If the government had boldly told the supreme court In a witness statement That the reason for preroging parliament for five weeks Was to prevent What the government the prime minister regarded as parliamentary interference In the government's negotiations for brexit with our european partners at a crucial time then Said Lord Sumption The court could not have intervened Because then it would Inevitably have been deciding on the strength of a political justification So Lord Sumption's point is that the government should have come clean if they'd said this is politics And we don't wish to disguise it. That's what we're doing Then the court would not have intervened That's a very interesting point I take a different view If that's what the government had said I think at least the majority of the judges would have responded That whether or not This was justified In political terms, which is not a matter of course, of course It was still unlawful Because the government would have been admitting Closing down parliament In order to avoid parliamentary scrutiny And that would be a motive inconsistent With the parliamentary sovereignty Which is at the heart of our constitution But that would have been a more difficult case The government made it easy for us But I think it's still what it was The other matter I want to mention Is the role of the Queen, which is also very interesting Her Majesty formally approved the prorogation acting on advice from the Prime Minister And we had evidence in the case in the form of the transcript of an interview On the BBC Radio 4 Today programme On the 29th of August, that was the day after the prorogation And it was an interview with Mr Jacob Roosemore And he was, still is, the Lord President of the Privy Council And he was one of the Privy Councillors who had had a day out attending Her Majesty at Balmoral When she gave her approval to the prorogation And on this regular interview, he told the interviewer, John Humphries, that it was Quote, a prime ministerial decision It's not a decision of the sovereign And that was the evidence before the court There was no evidence that Her Majesty was advised or saw herself As having any independent decision-making role in this matter She wasn't asked, do you agree? And she didn't exercise any independent judgment And my submission for Gina Miller was that this was correct As a matter of constitutional law Her Majesty has no discretion to reject the Prime Minister's advice on prorogation The argument for the Prime Minister, in the Miller case, was more nuanced The argument was that in this case Her Majesty did not take any independent decision She simply followed what she was advised to do But said counsel for the Prime Minister, Sir James Edie He wanted to adopt a neutral position On whether Her Majesty could have exercised an independent judgment And said to the Prime Minister, well, you say that, but I don't agree Now, this is a very interesting and difficult issue or principle Prior to the abolition by the fixed-term Parliamenters And of the Queen's prorogative power to dissolve Parliament So that a general election could take place There was much authority suggesting that Her Majesty was not obliged To follow the advice of the Prime Minister on that topic That is dissolving Parliament So there can be a general election But Her Majesty has a personal prorogative It was up to her, but she can say no And in Commonwealth countries Which follow the Westminster model of government There are examples They're discussed in a comprehensive study by Professor Antoine of the University of Sydney There are examples of the representatives or heads of state in the Commonwealth Deciding and not just following Prime Ministeral advice On whether to prorogue Parliament And the most notable example is in 2008 in Canada Where the Governor-General, Michelle Jean Was asked to prorogue Parliament by the Prime Minister And she took the view, the Governor-General That she did have power to refuse that request She decided, in fact, to accept the advice That she made it very clear it was up to her And not to be with the Prime Minister Now, the scope of Her Majesty's powers is important Because one of the arguments that we deployed For Gina Miller Was that if there are no legal controls On the power to prorogue If this is just a political matter As the divisional court held Then Prime Ministers have enormous powers Boris Johnson could have advised the Queen On the 25th of August To prorogue Parliament until the 1st of November Just to get Brexit done And a future Prime Minister More interested in the views of the people Than the views of representatives in Westminster Could advise Her Majesty to prorogue Parliament for six months Offer a year If he or she thinks that Parliament doesn't Provide any useful purpose And the answer given to that criticism The Prime Ministers would have enormous power Is that in extremists Her Majesty would step in She'd have a reserved power To say no to the Prime Minister's advice On prorogation And so the issue of constitutional law And constitutional principle Which didn't arise in numbers, I would say But the really interesting question Of constitutional law Is does Her Majesty have a reserved power To say no Now I find that really unconvincing As a principle of constitutional law A modern constitutional democracy My view cannot depend for protection Of its basic norms Against abuse by the Prime Minister On the opinions of Elizabeth Windsor What principle is she to apply? Who does she consult? Does she give a reasoned judgment? And indeed if Her Majesty were to be The constitutional backstop The safeguard against Prime Ministerial abuse Then whatever decision Her Majesty would take In such a situation Had she been asked by Boris Johnson On the 1st of September to prorogue Parliament Until the 1st of November to get Brexit done Any decision that Her Majesty took In such a context Would damage perhaps irreparably The neutrality which is so essential To the maintenance of monarchy So I think fundamental questions Of constitutional law offer the force Which here are the elements in public They give reasoned judgments By reference to presidents and to principle You may or may not agree with what the Court says But that's a proper trans-stand principle process And it's not I think the constitutional law To rely on the Queen And one impact of a middle of judgment Is that in future I'm absolutely sure That if anyone suggests That the Crown should exercise its own judgment The certainly this monarchy Maybe another monarchy in years come May take a different view But this monarchy would be able to say And would undoubtedly say It's not for me to step in The courts are prepared to step in In appropriate circumstances Not to say that the Crown Has no use for a role to perform Just over 150 years ago A water badger in the English constitution Gave a celebrated description Of the sovereign powers He or she has the right to be consulted The right to encourage And the right to war Those are the three powers of the sovereign And a Prime Minister who's thinking Of a Peruvian Parliament For an exceptionally long period Would be well advised to consult the sovereign Particularly the present sovereign Given her welfare experience And the Majesty would be well within her powers to warn And if despite a warning The Prime Minister decided to act In a manner that may be thought to be unconstitutional It's then for the courts I think not the Crown To determine the limits Of the Prime Minister's powers So the message I want to get across to you Is I think the prorogation case The Miller number two case The case of the decade This last decade, not this decade The prorogation case Was both an orthodox application Of basic principles of our constitutional law But it was also a remarkable assertion Of judicial independence To protect our constitution From an unprecedented At least in modern times Abuse of Prime Minister's power And we all know that it's stunned For this Prime Minister Who is threatening to take steps We don't know what they are I shall do such things What they are, I know not To quote Julia Threatening to do something To rein in the courts Water Badger, who I just mentioned Began his study of the Constitution By noting an observation of John Stuart Mill That quote, on all great subjects Much remains to be said And Badger added that of no subject Is this more true than of the English Constitution And I look forward to hearing your contributions Your views on this fascinating subject Thank you for listening