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We heard that the Supreme Court not only decided that the Prime Minister's advice to the Queen was unlawful, but that the prorogation was therefore void: it didn't happen, Parliament was not prorogued.

My question is: does the Sovereign actually issue any kind of decree to prorogue parliament? Does she sign something? Was she asked/advised to "unsign" or withdraw it? Or did the Supreme Court decide that the document, even though duly signed, had no validity because it was issued on the basis of bad advice? Does the Supreme Court actually have the ability to overrule the monarch, on the basis that she has been badly advised? Are there any precedents for doing so?

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  • Basically all of this is answered by the full judgment, which can be found on the UK supreme court's website (mentioned in the answer). It's a few dozen pages but pretty readable and comprehensive, historically and otherwise. They literally had to address every single one of these things in order to reach the judgment.
    – zibadawa timmy
    Commented Sep 30, 2019 at 7:48
  • Possible duplicate of What personal decision-making powers does the British monarch retain in practice?
    – JonathanReez
    Commented Oct 3, 2019 at 21:48
  • @JonathanReez this question seems more aimed at prorogation than the far more general canonical question you have created. It seems unlikely that the dupe target will go into sufficient detail to answer this.
    – JJJ ♦
    Commented Oct 3, 2019 at 22:43
  • 1
    @JJJ close vote retracted
    – JonathanReez
    Commented Oct 3, 2019 at 22:54

2 Answers 2

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Or did the Supreme Court decide that the document, even though duly signed, had no validity because it was issued on the basis of bad advice?

I think that's about the size of it. In practice, the Government advises the Crown to prorogue and the Crown follows that advice. In this case, the Supreme Court found the advice was unlawful and ultimately therefore the prorogation was "unlawful, null and of no effect", therefore Parliament should behave as if it never happened. It was as if the document were "a blank piece of paper".

From the Supreme Court judgment R (on the application of Miller) (Appellant) v The Prime Minister (Respondent), Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41:

3 Prorogation is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. ... Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.

69 [with regard to this prorogation] That advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect: see, if authority were needed, R (UNISON) v Lord Chancellor [2017] UKSC 51, para 119. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

70 It follows that Parliament has not been prorogued and that this court should make declarations to that effect. ...

judgment in PDF format on Supreme Court's website, along with video recordings of the hearings: https://www.supremecourt.uk/cases/uksc-2019-0192.html (Cherry is listed separately at https://www.supremecourt.uk/cases/uksc-2019-0193.html but the cases were heard together and there was one judgment.)

judgment in HTML format on BAILII https://www.bailii.org/uk/cases/UKSC/2019/41.html

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  • Thanks. That answers some of the questions. It seems the Supreme Court does consider that it has the power to declare an Order in Council invalid. That leaves the question, is there any basis for that? Has the question been tested, is there a precedent? Or does this establish a new precedent, one that could be used, for example, to declare other acts unlawful, such as appointments of ministers and ambassadors or conferring of honours?
    – Michael Kay
    Commented Sep 28, 2019 at 12:25
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    @MichaelKay Orders in Council are exercises of the prerogative power. There is precedent that exercises of the prerogative power, including Orders in Council, can be subjects of judicial review depending on the circumstances. The Supreme Court judgment cited Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 aka the GCHQ case. The effect of the Order in Council in that case "was that [workers] would no longer be permitted to belong to national trade unions but would be permitted to belong only to a departmental staff association approved by the director of GCHQ"
    – Lag
    Commented Sep 28, 2019 at 13:11
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    @MichaelKay Another such case is Bancoult (No 2) [2008] UKHL 61, which was about whether Orders in Council prohibiting Chagos Islanders from returning to their islands were lawful. The House of Commons library has a comprehensive briefing paper about the Royal Prerogative that you may find interesting: researchbriefings.parliament.uk/ResearchBriefing/Summary/…
    – Lag
    Commented Sep 28, 2019 at 13:15
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    @MichaelKay "In the GCHQ case, the Order in Council conferred certain powers on ministers, and it was the use of these powers that was challenged. Bancoult differs in that it was the Orders themselves that were challenged. "
    – Lag
    Commented Sep 28, 2019 at 13:20
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    A nitpick: the court did not make any assertions as to whether or not the advice was "bad". They very specifically noted they did not know what that advice was, and so could say nothing about it. The crux of the issue is that Parliament is the supreme sovereign entity, and any proroguing as such cannot impede the functioning of that sovereignty without adequate reasons. In this case they ruled that this prorogation was long enough to significantly impede Parliament's necessary functions, and that the Government had provided inadequate (indeed, zero) rationale to the court for it.
    – zibadawa timmy
    Commented Sep 30, 2019 at 7:52
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Does the Supreme Court actually have the ability to overrule the monarch, on the basis that she has been badly advised?

Yes. The Supreme Court wields the monarch's authority. She can overrule herself.

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  • Please support this by adding a relevant reference. It's been argued that the queen's role is ceremonial and her position allows very little when it comes to overruling anything unilaterally based on that position.
    – JJJ ♦
    Commented Oct 3, 2019 at 22:58
  • @JJJ well I looked for one, but it is in the nature of common-law systems that not everything is codified. My point, though, is that inasmuch as the monarch's role is ceremonial, the PM nominally acts in her name, and so do the courts. If you prefer to discount the queen's ceremonial part, the court has overruled the government, not the queen. If you choose to consider the proroguing of parliament as the queen's act, then you have to recognize that the supreme court also acts in the queen's name.
    – phoog
    Commented Oct 4, 2019 at 22:39
  • I think that reasoning should also be included in the answer itself as that adds more context.
    – JJJ ♦
    Commented Oct 4, 2019 at 22:40
  • @JJforTransparencyandMonica, that is a common misconception but quite false in fact. According to law, the monarch has absolute authority and it is only custom which precludes her from using her powers beyond the ceremonial "rubber-stamp". However, it is understood that in extremely extraordinary circumstances (existential threat to the kingdom), she would be expected to exceed the customary limitations on her power. According to strict law, the monarch could overrule anything the supreme court did, and her action would be final.
    – JoelFan
    Commented Sep 24, 2020 at 21:43

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