Cherry v Advocate General for Scotland

SUMMARY OF PROCEEDINGS ON 29 AUGUST 2019

The following is a summary of the oral submissions at the hearing of Thursday, 29 August 2019, prepared by a Reporter for Session Cases who was in attendance.

A motion for interim orders was heard by Lord Doherty, a judge of the Court of Session in Edinburgh, in the petition brought by Joanna Cherry QC MP and others for judicial review of the UK Ministers’ advice to HM Queen to prorogue the UK Parliament. Permission was granted earlier this month for the case to proceed, and a full hearing is anticipated to take place next week. Today’s hearing was sought on an urgent basis yesterday, and convened for the purpose of considering whether interim orders should be granted, in effect, to suspend the effect of yesterday’s order setting out the intended prorogation of Parliament (from a date between 9 and 14 September, until 14 October 2019), and to interdict the UK Ministers from acting meantime on the basis of that order.

The petitioners (represented by Aidan O’Neill QC; David Welsh, Advocate) invoked the constitutional jurisdiction of the court, and argued that the advice given was unlawful, and that it was the court’s duty to provide an effective remedy in order to ensure that the rule of law was maintained. Ultimately, the intended purpose was to ensure that the UK Government remained politically accountable to Parliament for its actions. The court was entitled to review the lawfulness of the advice given, as a result of which it was argued that the resulting decision of HM Queen could also fall as ‘unlawful, unwarranted and unconstitutional’. Whether or not it was ‘competent’ for UK Ministers to advise HM Queen to prorogue Parliament in the present circumstances, a matter of weeks before the UK was due to exit the European Union, was said to be a question of law and constitutional interpretation, and therefore properly a matter for the court, albeit that the resolution of legal questions will often have political consequences. Nonetheless, the lawfulness of advice to the Sovereign by Ministers or Privy Counsellors, which resulted in the passing of legal measures by the Sovereign, was ‘justiciable’. If the court was satisfied that the advice to prorogue Parliament amounted to an abuse of power, then there was an obligation on the Sovereign to recall the resulting order of prorogation. The fact that the advice had been acted upon did not deprive the courts of jurisdiction to review the lawfulness of the advice that underpinned the decision in question and to grant interdict where appropriate (see R (Barclay) v Lord Chancellor (No 2) [2014] UKSC 41, [2015] AC 276; Teh Cheng Poh v Public Prosecutor [1980] AC 458; Edwards v Cruickshank (1840) 3 D 282, Davidson v Scottish Ministers 2006 SC (HL) 41). According to the Claim of Right 1689, there were legal limits upon the monarchy: the constitution could not be altered into “ane arbitrary despotick power…by the advyce of Evill and wicked Counsellors’. Parliament ought to be frequently called and allowed to sit. Once called, the power of prorogation should not be used ‘abusively’ in the sense of preventing Parliament from carrying out its constitutional duties, including giving voice to freedom of speech and debate amongst its members. The power was not absolute or unfettered, it had to be used in accordance with public trust. There was no precedent for its use to create an irreversible situation, namely that the UK would leave the EU ‘deal or no deal, do or die’, with Parliament prevented from doing anything about it. The common law was informed by principles of democracy and the courts could step in to declare such conduct unlawful, even in cases concerning the exercise of prerogative power (Moohan v Lord Advocate [2014] UKSC 67, 2015 SC (UKSC) 1; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453; R (Jackson) v Attorney General [2006] 1 AC 262). The reasons that were said to justify the prorogation of Parliament ought to be subject to ‘an anxious and profound degree of scrutiny’ in situations affecting fundamental rights or otherwise having profoundly intrusive effects. In the present case, the power was being relied upon avowedly for the purpose of ensuring that the UK leaves the EU ‘deal or no deal’ by 31 October 2019, and that ‘parliamentary procedures don’t get in the way of that’. Leaving the EU would have profound effects on the rights of individuals, and the reasons stood up to ‘very little proper scrutiny’ and were ‘counter intuitive’. In any event, it was a fundamental misdirection in law to assume that the Government had any authority to allow the UK to leave the EU without a deal, in the absence of primary legislation authorising that course (R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61; Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union EU:C:2018:999, [2019] QB 199). In the event of prorogation, there would be insufficient time for the necessary legislative work to be done, and the political accountability of Parliament would be avoided. That was the intention, it was unconstitutional, and the court should stop it. An effective remedy required the court to positively order the Government, if it insisted on proroguing Parliament, either to extend the ‘article 50’ time limit or formally to revoke the notification as a matter of ‘extreme necessity’. Accordingly, it was argued that the petitioners had set out the necessary prima facie case and balance of convenience in favour of granting the interim orders sought.

The Advocate General for Scotland (represented by Roddy Dunlop QC), submitted that the motions should be refused. The petitioners raised matters of the highest constitutional importance, involving real questions of separation of powers, which were manifestly unsuited for determination on an interim basis. In any event, the contested matter of prorogation had already taken place, and was ‘classically’ a matter that was not justiciable. It was an act of the Sovereign herself, exercising a privilege that remained hers alone, separate from the giving of advice in respect of which the court had granted permission to proceed, with which the court simply would not interfere (Prorogation Act 1867, s 1). It was recognised that certain matters were outwith the scope of judicial review either because they were ‘intensely political’ or the privilege of Her Majesty; there remained a residue of cases where the court would not tread (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; De Smith’s Judicial Review, paras 3-034 – 3-042). Following the Fixed-term Parliaments Act 2011, the power to dissolve Parliament was no longer the exclusive preserve of the monarch, but the position remained unchanged in respect of prorogation. The respondent argued that either the power was reserved to the monarch, with which the courts would not interfere, or it involved such questions of policy that the court should not intrude because it was ill-equipped to do so. There was nothing to justify interference with the intensely political decision making under scrutiny in the present case. The petitioners were seeking to attack something that was not justiciable, and none of the authorities referred to by the petitioners suggested otherwise. There was a clear convention that the Sovereign would follow the advice of her Government in proroguing Parliament, and parliamentary convention was, again, something long recognised as not justiciable, as had been recognised in R (Miller). If, according to the petitioners, it had been done for ‘bad political reasons’ or ‘improper political motives’, then such matters of politics were, again, not justiciable. In any event, the advice tendered to HM The Queen, and the motivation behind it, were both plainly covered by parliamentary privilege and could not be the subject of enquiry anywhere other than in Parliament. If Parliament had a problem with it, it was for Parliament to sort it out. That was so, particularly where Parliament had itself passed primary legislation, which expressly recognised the fact that Parliament may be prorogued and nonetheless provided for the sitting of Parliament (Northern Ireland (Executive Formation etc) Act 2019).

The prorogation of Parliament, without any ‘say’ by Parliament as to whether it was prorogued or not, was a regular occurrence, and never in our history of law had it been the subject of judicial interference, even where it might have had a political motive (House of Commons Library Briefing Paper, no 8589, 11 June 2019, p 8). The matter did not become justiciable simply because the length of prorogation was greater than the petitioners would have liked, or because it was asserted to be borne of political motives which the petitioners sought to impugn. Moreover, the prorogation order was in precisely the same terms as on any other occasion – it was ‘standard wording’. The reasons expressed by the Prime Minister were all intensely political and not ones upon which a court was qualified to adjudicate. The petitioners might disagree, but they were not the ultimate arbiters, and the court ought to decline their invitation to enter the political arena. Separately, it was simply wrong that primary legislation was required in order to bring about withdrawal from the EU. In the absence of any new deal, then as a simple matter of law, the UK will leave, and it will do so in a situation that has been expressly contemplated by Parliament itself in terms of the ‘article 50’ notification and, subsequently, the European Union Withdrawal Act 2018. Accordingly, the petitioners had failed to demonstrate the necessary prima facie case or, at least, any such case was an extremely weak one. In any event, the petitioners had failed to justify the need for interim orders prior to a full hearing of the case next week prior to any question of prorogation coming into effect could occur. There was no good reason for dealing with matters now, where an early hearing had already been granted, no similar interim relief having been sought in any of the other challenges happening across the UK. The approach of the petitioners, in seeking interim orders that were ‘wholly unprecedented’ and went beyond any interference that the courts had ever permitted, was itself ‘unconstitutional’. There was simply no warrant to decide this fundamentally important matter on an interim basis, and the respondent invited the court to refuse the interim orders sought.

The court adjourned to consider matters overnight and is due to give its decision at 10am tomorrow.

Further summaries of these proceedings will be published on this site as soon as they become available after the hearing on 3 September.