Skip to the content

Cherry v Advocate General for Scotland


The following includes a note of Lord Doherty’s judgment given orally on 4 September 2019, refusing the petitioners’ application. This summary was prepared by a Reporter for Session Cases who was in attendance.

1. Lord Doherty delivered a summary of the decision. A fuller decision, including a rehearsal of the submissions of the Lord Advocate and parties, would follow as soon as possible in writing.

Is the issue raised justiciable?

2. In His Lordship’s opinion, the authorities discussed vouched the following propositions. The exercise of some prerogative powers in some circumstances was justiciable, in other cases not. The court’s role in relation to prerogative powers was dependent on the nature and subject matter of the power or its exercise, particularly whether the subject matter was justiciable. Whether its exercise was reviewable depended on the subject matter and context of the power and challenge. Some functions exercised or decisions taken were not justiciable as matters of ‘high policy’ and political judgement, which the court did not have the ‘tools’ or ‘standards’ to assess. Political decision-making could not be measured by legal standards, only by political judgements. The courts would not superimpose legal controls on such matters. Rather, accountability was to Parliament and the electorate.

3. His Lordship was not persuaded that any matters relied upon by the petitioners or the Lord Advocate resulted in the claim being justiciable. In his view, the advice given in relation to the prorogation decision was a matter involving ‘high policy’ and political judgement. This was political territory and decision-making, which could not be measured by legal standards, only by political judgements. Accountability for the advice was to Parliament and, ultimately, the electorate – not the courts.

4. His Lordship did not accept that the prorogation contravened the rule of law, or that it was justiciable because of that. There was no contravention of the rule of law. The power to prorogue was a prerogative power, and the Prime Minister had the vires to advise the Sovereign as to its exercise. The Executive was accountable to Parliament and to the electorate for that advice.

5. Parliament was the master of its own proceedings, rules and privileges, and had exclusive control over its own affairs. The separation of powers entailed that the courts would not interfere. It was for Parliament to decide when it would sit, and routinely it did so. It was not for the courts to devise further restraints which went beyond the limits that Parliament had chosen to provide. Parliament could sit before and after prorogation, and it had recently exercised its legislative power to make provision as to when it should sit, in the form of the Northern Ireland (Executive Formation) Act 2019.

6. That was sufficient to dispose of petition. However, His Lordship also provided his views on the other issues raised.

Breach of Claim of Right Act 1689?

7. His Lordship saw some force in the submission that the contention that the Claim of Right 1689 had been breached by the Order in Council of 28 August 2019 was non-justiciable. However, he preferred to decide the issue on the more straightforward ground that there was nothing to support the contention that there had been a breach of the provisions of that legislation. His Lordship accepted the respondent’s submissions on that point.

Does prorogation frustrate the will of Parliament by rendering existing legislative provisions futile? 

8. His Lordship considered that the respondent’s submissions were also correct, that prorogation did not render existing legislative provisions futile.

Other matters discussed

9. Given that the two ‘bulwarks’ of the petitioners argument that prorogation was unlawful were not made out – namely, that it was said to breach the Claim of Right 1689, and to render some existing legislation futile – it was not necessary to say much of other matters. None of the matters founded upon by the petitioners or the Lord Advocate caused His Lordship to conclude that prorogation was unlawful if, contrary to his view, the claim was justiciable.

10. His Lordship was not attracted to the respondent’s submission that the petitioners’ claim was ‘academic’ but he was inclined to agree with the respondent that it was concerned with prorogation and not the requirements of ‘article 50’ and exiting the European Union. The fact that Parliament may not be sitting for five weeks did not, of itself, have any direct effect on individuals’ EU rights. His Lordship was also inclined to agree with the respondents’ analysis of Miller, and the consequences of subsequent legislation

11. Even if, contrary to His Lordship’s view, the matter was justiciable, the context in which the Prime Minister’s reasons fell to be assessed would be that political judgments may be a relevant consideration. His Lordship was not persuaded that the reasons for that advice were unlawful.

12. Accordingly, the petition was refused.


13. The respondent sought the expenses occasioned by the procedure against the petitioners, particularly in respect of the ‘futile’ attempt to seek to reclaim refusal of interim orders, which was ‘simply without merit’, on an ‘agent and client’ basis.

14. The petitioners opposed that motion on the basis that they had come to court in good faith, and had acted in accordance with the court’s interlocutor and timetable, whereas the respondents had ‘acted in bad faith’, would appear to have ‘deliberately flouted’ the court’s interlocutor and ‘refused’ to abide by its timetable. On that basis, it was argued that there was no basis upon which the court should exercise its discretion in relation to expenses to ‘penalise’ the petitioners for the manner in which they brought the case in good faith and in the public interest. The petitioners moved that there should be no expenses due ‘to or by’.

15. His Lordship considered that expenses should follow the usual rule, and was not persuaded that the motion for ‘agent and client’ expenses was justified.

16. Accordingly, the respondent was awarded the expenses of the interim interdict hearing and the subsequent hearing, ‘as capped’.