| 1 | Was the advice lawful ? |
| 2 | 55. Let us remind ourselves of the foundations of our constitution . We live in a representative democracy . |
| 3 | The House of Commons exists because the people have elected its members . |
| 4 | The Government is not directly elected by the people ( unlike the position in some other democracies ) . The Government exists because it has the confidence of the House of Commons . It has no democratic legitimacy other than that . This means that it is accountable to the House of Commons - and indeed to the House of Lords - for its actions , remembering always that the actual task of governing is for the executive and not for Parliament or the courts . |
| 5 | The first question , therefore , is whether the Prime Minister 's action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account . 56. The answer is that of course it did . This was not a normal prorogation in the run_-_up to a Queen 's Speech . It prevented Parliament from carrying out its constitutional role for five out_of a possible eight weeks between the end of the summer recess and exit day on the 31st October . |
| 6 | Parliament might have decided to go into recess for the party conferences during some of that period but , given the extraordinary situation in which the United Kingdom finds itself , its members might have thought that parliamentary scrutiny of government activity in the run_-_up to exit day was more important and declined to do so , or at_least they might have curtailed the normal conference season recess because_of that . Even if they had agreed to go into recess for the usual three_-_week period , they would still have been able to perform their function of holding the government to account . Prorogation means that they can not do that . |
| 7 | 57. Such an interruption in the process of responsible government might not matter in some circumstances . |
| 8 | But the circumstances here were , as already explained , quite exceptional . |
| 9 | A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019 . Whether or not this is a good thing is not for this or any other court to judge . The people have decided that . But that Parliament , and in particular the House of Commons as the democratically elected representatives of the people , has a right to have a voice in how that change comes about is indisputable . |
| 10 | And the House of Commons has already demonstrated , by its motions against leaving without an agreement and by the European Union ( Withdrawal ) ( No 2 ) Act 2019 , that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons . |
| 11 | 58. The next question is whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy . |
| 12 | Of course , the Government must be accorded a great deal of latitude in making decisions of this nature . |
| 13 | We are not concerned with the Prime Minister 's motive in doing what he did . We are concerned with whether there was a reason for him to do it . |
| 14 | It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks . |
| 15 | Everything was focussed on the need for a new Queen 's Speech and the reasons for holding that in the week beginning the 14th October rather than the previous week . But why did that need a prorogation of five weeks ? |
| 16 | 59. The unchallenged evidence of Sir John Major is clear . |
| 17 | The work on the Queen 's Speech varies according_to the size of the programme . |
| 18 | But a typical time is four to six days . |
| 19 | Departments bid for the Bills they would like to have in the next session . |
| 20 | Government business managers meet to select the Bills to be included , usually after discussion with the Prime Minister , and Cabinet is asked to endorse the decisions . |
| 21 | Drafting the speech itself does not take much time once the substance is clear . |
| 22 | Sir John 's evidence is that he has never known a Government to need as much as five weeks to put together its legislative agenda . |
| 23 | 60. Nor does the Memorandum from Nikki da Costa outlined in para 17 above suggest that the Government needed five weeks to put together its legislative agenda . |
| 24 | The memorandum has much to say about a new session and Queen 's Speech but nothing about why so long was needed to prepare for it . |
| 25 | The only reason given for starting so soon was that “ wash_up ” could be concluded within a few days . |
| 26 | But that was totally to ignore whatever else Parliament might have wanted to do during the four weeks it might normally have had before a prorogation . |
| 27 | The proposal was careful to ensure that there would be some Parliamentary time both_before_and_after the European Council meeting on 17th - 18th October . But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business . It does not discuss what Parliamentary time would be needed to approve any new withdrawal agreement under section 13 of the European Union ( Withdrawal ) Act 2018 and enact the necessary primary and delegated legislation . It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day and achieve an orderly withdrawal with_or_without a withdrawal agreement , which are laid down in the European Union ( Withdrawal ) Act 2018 . |
| 28 | Scrutiny committees in both the House of Commons and the House of Lords play a vital role in this . |
| 29 | There is also consultation with the Scottish Parliament and the Welsh Assembly . |
| 30 | Perhaps most tellingly of all , the memorandum does not address the competing merits of going into recess and prorogation . It wrongly gives the impression that they are much the same . |
| 31 | The Prime Minister 's reaction was to describe the September sitting as a “ rigmarole ” . |
| 32 | Nowhere is there a hint that the Prime Minister , in giving advice to Her Majesty , is more than simply the leader of the Government seeking to promote its own policies ; he has a constitutional responsibility , as we have explained in para 30 above . |
| 33 | 61. It is impossible for us to conclude , on the evidence which has been put before us , that there was any reason - let_alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks , from 9th or 12th September until 14th October . |
| 34 | We can not speculate , in the absence of further evidence , upon what such reasons might have been . |
| 35 | It follows that the decision was unlawful . |