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Cherry, Petitioner v Advocate General For Scotland

SUMMARY OF PROCEEEDINGS ON 30 AUGUST 2019

The following includes a note of Lord Doherty’s judgment given orally refusing the petitioners’ motion for interim orders. This summary was prepared by a reporter of Session Cases.

Note of Lord Doherty’s judgment

The remedies sought by the petitioner are set out in statement 18 of the petition. These are (1) declarator that it is ultra vires et separatim unconstitutional for a minister of the crown, including the Prime Minister, with the intention of denying sufficient time for parliamentary consideration of the UK’s withdrawal from the EU, to purport to advise Her Majesty The Queen to prorogue the Union Parliament; (2) interdict against any minister of the crown advising Her Majesty, with the intention of limiting the time available to Parliament to properly consider the UK’s withdrawal from the EU, to prorogue Parliament; and (3) such other orders as the court may think just and reasonable in all the circumstances.

The petition was lodged on 30 July 2019. Permission to proceed was granted on 13 August and an accelerated timetable was fixed. An early substantive hearing has been fixed for 6 September 2019.

Since the last adjustment of the petition and answers, the petition has been overtaken by events. On 28 August 2019 Her Majesty made an Order in Council that parliament shall be prorogued no earlier than 9 September 2019 and no later than 12 September 2019, until 14 October 2019. It is common ground that Her Majesty accepted the advice of the Prime Minister.

That same day, a motion was enrolled by the petitioners for interim interdict against any Minister of the Crown taking any steps to implement the Order in Council and interim suspension. The motion was heard yesterday. The petitioner sought interim suspension of the Order in Council and interim interdict against taking any steps to implement the Order in Council, as well as interim interdict against any minister of the crown advising Her Majesty to prorogue parliament before 31 October 2019.

The petitioners argued that the advice of the Prime Minister was unlawful on the basis that:

  1. It was motivated by the desire to restrict the time available to Parliament to hold the government to account.
  2. It frustrated the will of Parliament as expressed in the European Union (Withdrawal) Act 2018, the Northern Ireland (Executive Formation etc.) Act 2019 and the Fixed-Term Parliaments Act 2011.

The petitioners argued that there was a prima facie case for interdict and suspension, and that the balance of convenience favoured the granting of interim orders.

The Court refused the motion for interim orders for the following reasons:

(1) the Court had a broad discretion when considering motions for interim orders, and required to determine whether there was a cogent need for interim orders to be made; (2) having regard to the fact that a substantive hearing was due to take place on 6 September 2019, a date before parliament will be prorogued, there was no cogent need for interim orders at this time; (3) in any event the balance of convenience did not favour the granting of interim orders; (4) it was not appropriate for the court to express any view on whether the petitioners had a prima facie case, where a substantive hearing is due to be heard shortly and at which full argument would be made; (5) if the petitioners were right that the advice of the Prime Minister was unlawful, appropriate remedies could be granted by the court after the substantive hearing; and (6) it was in the interests of justice, and the public interest, that the substantive hearing be accelerated.

Other matters

The Court appointed the substantive hearing to be accelerated to 3 September 2019. The respondent’s motion for the expenses of the motion hearing was refused and expenses held to be in the cause. Notes of Argument were ordered to be lodged by 12 noon on 2 September 2019.

Counsel on behalf of the petitioners stated in court that they invited the respondent to lodge an affidavit from the Prime Minister in order that he may give evidence as to why he advised Her Majesty to prorogue parliament, and stated that they reserved their position on whether cross examination of the Prime Minister would be sought on that issue.