ON August 27 or 28, 2019 British Prime Minister Boris Johnson advised Her Majesty the Queen that Parliament should be prorogued from a date between September 9 and 12 until October 14, 2019. On August 28, Parliament was prorogued following a meeting of the Privy Council. Prorogation is a prerogative power exercised by the crown on the advice of the Privy Council (read: prime minister).

The prime minister’s decision to prorogue Parliament was challenged in two sets of proceedings, one in Scotland (the Cherry case) and one in England (the Miller case). On September 4, 2019, the Scottish Court of Session refused the petition in the Cherry case, on the ground that the issue was not justiciable in a court of law. The petitioner appealed.

The English High Court also dismissed the claim in the Miller case on the ground that the issue was not justiciable. It accepted the government’s submission that the courts should not enter the political arena but should respect the separation of powers.

It held that the prime minister’s decision that Parliament should be prorogued at the time and for the duration chosen, and his advice to Her Majesty to that effect, were inherently political in nature, and there were no legal standards against which to judge their legitimacy.

The High Court’s judgment was delivered on September 11, 2019. On the same day, the Scottish appellate court delivered its decision that the petitioners’ appeal in the Cherry case would be allowed. It held that the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of ‘stymying’ parliamentary scrutiny of the executive, and that it and the prorogation that followed it were unlawful and thus null and of no effect.

The advocate general in the Cherry case and the claimant in the Miller case appealed to the United Kingdom Supreme Court. Both cases raised the same issues: (i) whether the prime minister’s advice to the queen was justiciable in a court of law and, if it was, by what standard its lawfulness was to be judged; (ii) whether, by that standard, it was lawful; and (iii) if it was not, what remedy the court should grant.

The Supreme Court heard both appeals from September 17-19, 2019. The Supreme Court heard oral submissions, and read written submissions, from the principal parties – some of whom were themselves barristers and the Queen’s Counsels (senior lawyers).

In addition to these, the court also had written and oral submissions from the Lord Advocate, for the Scottish government, from the Counsel General for Wales for the Welsh assembly, and from Sir John Major, a former prime minister with first-hand experience of prorogation. The court also received written submissions from Baroness Chakrabarti, then shadow attorney-general, for Her Majesty’s Opposition, and from the Public Law Project.

In view of the grave constitutional importance of the matter, and the disagreement between the courts in England and Wales and Scotland, the Supreme Court convened a panel of 11 Lord Justices (judges) – including the president and deputy president of the court – the maximum number of serving Justices who are permitted to sit.

Simply put, it was an assembly and sitting of the best legal minds in the United Kingdom.

Reading the judgment of the Court Lady Hale, President of the Supreme Court, and Lord Reed, the Deputy President, said:

“Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.”

“Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits.”

“The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”

On that note, the Supreme Court unanimously allowed the appeal in the Miller case and dismissed the appeal in the Cherry case for the reasons that:

(1) the decision of the prime minister was justiciable;

(2) the prime minister’s decision was unlawful as having the effect of frustrating or preventing the constitutional role of Parliament in holding the government to account and there had been no reasonable justification for the action which had such an extreme effect upon the fundamentals of democracy; and

(3) the prime minister’s advice and the actual prorogation to which it had led were unlawful, null and of no effect.

The Supreme Court’s decision was delivered on September 24, 2019. Later in the evening, leaked extracts of the advice given by the Attorney-General Sir Geoffrey Cox in the texts of conversations between cabinet ministers saying suspending parliament was lawful were released to Sky News. The conversation first emerged in minutes which were released to the Scottish court, but large sections were redacted.

In one of the redacted sections, Cox had said it was lawful and anyone disputing this was doing so for political reasons.

Questioned in Parliament the next day, the attorney-general replied:

“(T)he Supreme Court gave judgment on this issue yesterday, and that judgment sets out the definitive and final legal position on the advice given to Her Majesty on the prorogation of Parliament. The government’s legal view during the case was set out and argued fully before the Supreme Court.”

“I oversaw the government’s team of counsel. I have to say that if every time I lost a case I was called upon to resign, I would probably never have had a practice.”

“The government accepts the judgment and accepts that they lost the case. At all times, the government acted in good faith and in the belief that their approach was both lawful and constitutional. These are complex matters, on which senior and distinguished lawyers will disagree.”

“Given the Supreme Court’s judgment, in legal terms the matter is settled…  I am bound by the long-standing convention that the views of the law officers are not disclosed outside the government without their consent,” the attorney-general added.

So, here are the two takeaways from the above: (1) the courts are the final arbiter of contesting and opposing opinions; and (2) it is a long-standing convention that legal advice to the government is confidential.

On a parting note, Article 130 of the federal constitution allows the Yang di-Pertuan Agong to refer to the Federal Court for its opinion any question as to the effect of any provision of the constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

So, can the attorney-general be called upon to resign on account of his legal advice or opinion? – June 28, 2021.

*Hafiz Hassan reads The Malaysian Insight.