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Cherry v Advocate General for Scotland


The following is a summary of the oral submissions at the hearing of the petitioners’ reclaiming motion (appeal) on Thursday and Friday, 5 and 6 September 2019, prepared by a Reporter for Session Cases who was in attendance.

The matter was heard by the First Division of the Inner House of the Court of Session in Edinburgh, comprising the Lord President (Lord Carloway), Lord Brodie, and Lord Drummond Young.

Preliminary Matters

Application by petitioners in respect of the production of unredacted documents

1. The petitioners (represented by Aidan O’Neill QC, and David Welsh, Advocate) moved that the respondent should be ordered to produce in court, and to the parties, in unredacted form, the documents produced and relied upon before the Lord Ordinary (Lord Doherty) in support of their claims as to the reasonableness and constitutionality of the decision to order prorogation. The documents had been produced in redacted form, apparently on the basis of (a) relevance, (b) legal professional privilege, and (c) the Law Officers’ convention. It was not known what lay behind those redactions, or whether or not the claims were properly made. Notably, however, no claim of public interest immunity had been made. If legal professional privilege were to be claimed in support of any redactions, that ought to have been done in these proceedings by way of affidavit evidence. The annotated rules of court indicated that affidavits were ‘extensively used’ in judicial review in Scotland.

2. In support of the motion, the petitioners’ basic proposition was that, having lodged those documents, the respondent could not come to this court with ‘edited highlights’ in breach of the basic principles of fairness, fair trial and open justice (Scottish Lion Insurance Co Ltd v Goodrich Corp 2011 SC 534, Opinion of the Court delivered by Lord Reed at para 48). By lodging the documents, the respondent had waived any privilege in relation to their contents by the manner and purpose for which they had been produced. Accordingly, the respondent ought to be ordered to produce the documents in unredacted form as fairness required. Otherwise, the court would have to be persuaded in respect of the basis of any redactions sought. The respondent, having failed to follow the proper procedures, ought to be required to produce the full unredacted documents to the court and parties (Somerville v Scottish Ministers 2008 SC (HL) 45, Lord Rodger at para 155). Any application to maintain privilege would now be too late and would be incompetent as a matter of Scots law (Glasgow Corp v Central Land Board 1956 SC (HL) 1, Viscount Simonds at 9). Even in matters of some constitutional moment, the Scots law position was different and, in a Scottish appeal, ought to prevail such that the court was entitled to gainsay any claims by the Crown as to what was required in the public interest.

3. The respondent (represented by David Johnston QC, and Andrew Webster QC) resisted the motion on precisely the suggested ground, in order for the court to be able to assess whether the Lord Ordinary had fallen into error on the material before him. The respondent emphasised that the documents had been produced in order to comply with the duty of candour to the court to make disclosure of documents but that, given the respondent’s claim that the case raised non-justiciable matters, the reasons contained in those documents were not germane to the principal issue. The Lord Ordinary had made it clear that his decision rested fundamentally on non-justiciability. In any event, senior counsel for the respondent, having had sight of the documents, was willing to state on his own responsibility that the redactions had been properly made for the reasons given, namely relevance, legal professional privilege, and the Law Officers’ convention.

4. The respondent’s reasons emerged sufficiently for the court to take a view and scrutinise them to the extent that it might regard as appropriate. Furthermore, there was no need for the petitioners to see any further or unredacted version of the documents insofar as it was argued that the court ought to disregard them as unsupported by affidavit evidence. In any event, as a matter of principle, it was extremely important that the redactions remained in place in order not to cause difficulty to the ordinary business of Government. If the Government could not be assured that advice could be redacted on the grounds of legal professional privilege, that was potentially a great inroad into how it could conduct its business and whether it could continue to do so in the way it currently did.

5. The petitioners’ application ought to have been made before the Lord Ordinary, and this court had no need to look at material that was unavailable to him. Otherwise, further submissions ought to be allowed in respect of the appropriate procedure for redactions to be considered.

6. The Lord President observed that, as a matter of procedure, the appeal hearing would generally proceed upon the basis of the documents that had been before the court at first instance. Following brief deliberations, however, the court observed that, having had very little time to consider the content of the relevant documents, it would continue consideration of whether to order production of the documents in unredacted form at the conclusion of substantive arguments (see further below: Application by BBC and others).

Application by BBC and others in respect of access to court documents

7. Counsel for the BBC (Kenneth McBrearty QC) moved the court to consider a fresh application to intervene in the proceedings on behalf of the BBC and also the publishers of The Times and The Scottish Sun solely for the purpose of seeking access to various documents referred to by counsel in argument before the Lord Ordinary.

8. In any event, the applicants sought to intervene on that discrete issue alone, and to obtain access to the petition and answers as adjusted and the written intervention by the Lord Advocate. Whilst access had been sought on a voluntary basis, all parties had indicated no objection, except the respondent. Access was sought on the basis of the principle of open justice at common law, one of the main purposes of which was to allow the public to understand how the justice system worked, the arguments made in court, and the reasons for any decisions taken. In the present case, the proceedings were self-evidently of the utmost public interest. The proceedings before the Lord Ordinary had been ‘live streamed’ on the BBC website, and its news page containing a link to the relevant stream had received over 1.2 million ‘hits’. In matters of such great public interest, which stimulated such enormous public debate, it was right that the public should understand and be fully informed. The documents having been lodged and referred to in open court, the applicants were impeded from reporting fully and precisely what was being argued (see, eg, Opinion of Lord Doherty at para 34, which was understood to be a reference to the documents to which access was sought). In essence, if the applicants wished to scrutinise the Lord Ordinary’s reasoning and report on that to the public, they required full access to the documents seen by the Lord Ordinary. Whilst excerpts had been read out in court, that had been done only to the extent thought appropriate by counsel for the petitioners, whereas far more was available to the court. Moreover, whilst the Lord Ordinary had referred to the documents in the contexts of a ‘fallback’ argument, their relevance or otherwise was nothing to the point. The principle of open justice was concerned with permitting the public to understand what had been said and argued, and the issues before the court. It remained relevant for the public to understand the argument and the determination made, even in respect of a fallback position. The default position was that the public should have access to any documents lodged and referred to in court, particularly where there were proper journalistic reasons for seeking access as there were in the present circumstances (see, eg, Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38; R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618). The court was required to carry out a balancing exercise to weigh up the advancement of open justice against any harm that may ensue as a result of access being granted. Where the default position favoured the applicants, however, the court ought to entertain the application and hear from the respondent as to what, if anything ought to be considered in the balance.

9. It would be curious if the principle of open justice required the media to await the outcome of the case in order to assess whether the court considered the documents to be relevant, and allowed access only if relevant. In that event, public access would be circumscribed by the court’s view of the case or, perhaps more insidious still, the manner in which the Government presented its arguments to the court, thereby dictating access to the material relied upon. Whether or not the documents were ultimately found to be relevant was of no consequence. Once the documents had been referred to in open court, the applicants were entitled to understand their context and the reasons why they had been referred to. The respondent had lodged the documents in a redacted form on the basis that the remainder was appropriate to be lodged and made available to the parties. It was difficult to see how it could impede good government to have it properly explained to the public what the Government relied upon in arguing that there were proper reasons for the prorogation of Parliament. In any event, the present case was plainly unique. The applicants did not seek to establish any kind of general rule for access to Cabinet documents. The Government having taken the decision to lodge the documents, they had unsurprisingly been referred to in open court and the applicants merely sought a decision in respect of access to those documents on the particular facts of the case. The principle of open justice plainly outweighed any considerations on the other side of balance.

10. The applicants further sought the court’s permission to have sight of the parties’ written notes of argument before this court, the respondent having been requested but unwilling to produce his note voluntarily. The purpose of the notes was, in effect, to take the place of oral argument before the court, and was subject to the principle of open justice as part of those arguments. It was not clear what would be said by the respondent about the documents in which the applicants were interested, but the applicants ought to have the opportunity to consider anything said in order to inform the submissions that may be made in due course.

11. The respondent did not deny the applicants’ right to ask the court for access to the documents, but submitted that it did not follow that access ought to be granted. The court required to carry out a fact-specific balancing exercise with regard to the potential value of the items in promoting open justice as against the potential harm to the effectiveness of the judicial process occasioned by their disclosure. A range of diverse interests could weigh on the other side of the balance, such as national security, children, trade secrets, and commercial confidentiality, against facilitating the understanding of court proceedings. In the present case, there was a concern that documents consisting of Cabinet minutes and advice to Ministers were components of Cabinet confidentiality which were, in turn, features of the collective responsibility of Government as an integral part of the UK democratic tradition. It was necessary to ensure that they remained confidential insofar as possible in order to maintain effective governance, otherwise such documents would have to be drafted in future with a view to publication, which may cause them to be less candid. Moreover, guidance would have to be produced across Government departments, especially where the duty of candour in any particular case might lead to documents becoming more widely available to the public. In any event, the Lord Ordinary had rejected matters in the present case as non-justiciable, therefore the documents were not part of the ratio of the decision, which weighed against their release to the applicants as a requirement of open justice. The relevance of the documents remained to be determined, and at the very least those documents ought to remain in court and confined to the parties until their true relevance was known.

12. With regard to notes of argument, the respondent had offered sight of the note of argument to counsel for the BBC and other media organisations on a ‘counsel to counsel’ basis, and it was not clear why this had not been sufficient for the stated purpose of understanding the respondent’s arguments before the court. The applicants were not party to the proceedings and it had been a reasonable offer, although it could not be said that there was something contained in the note that the respondent really did not wish to be seen.

13. The Lord President observed that the court was not persuaded that this would be an intervention, given that no involvement in the substantive hearing was intended, rather it was merely an application. It was further observed that, as a generality, the petition and answers as adjusted by the parties, and the written intervention of the Lord Advocate, would be publicly available in any reclaiming motion.

14.It was further observed that, conscious of the need for open justice, the court would normally act in accordance with that principle unless there were good reasons to the contrary. No order was required in order for access to be granted to the petition and answers as adjusted, and the written intervention of the Lord Advocate, and the court would provide copies of those documents. However, a decision in respect of the Cabinet documents would be delayed until the end of proceedings.

15. At the close of the first day of the appeal proceedings, after brief deliberations, the court held that the press ought to have access to the written arguments to be developed in oral submissions before the court. There was no need for a formal order in this regard, and the court would provide copies.

16. The three documents lodged by the respondent and referred to extensively by the parties should also be made available – in their redacted form – so that the precise terms would be known to those listening to the debate and there would be no error in relation to what precisely they said. The court so ordered in relation to those documents.

Submissions on behalf of the petitioners

17. The petitioners adopted their note of argument in the reclaiming motion and written response to the note of argument for the respondent. In summary, the rule of law and the principle of equality before the law meant that legal duties could be enforced by order of the court against the Executive, such as to submit for Royal Assent any Bill which had duly passed through Parliament. If the Executive failed, refused or delayed to present any such Bill for Royal Assent, the courts could, and had to, intervene, in order to uphold the rule of law (see, eg, (Barclay v Lord Chancellor (No 2) [2014 UKSC 41, [2015] AC 276; Teh Cheng Poh v Public Prosecutor [1980] AC 458).

18. In deciding the present appeal, it was submitted that the court had to take full and proper account of the Scottish constitutional traditions. There was no automaticity of replacement of Scots law in respect of Crown rights and prerogatives as a result of the Union (Admiralty v Blair’s Trustees 1916 SC 247; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). The Claim of Right 1689 sets out, not just that Parliament should be frequently called, but that it should be allowed to sit for the redress of all grievances and remedy of the law. It was directed specifically to the power of prorogation, and outlawed the abuse of that power: if that power was exercised for improper purposes, or because it was vitiated by error of law or was otherwise unreasonable in its exercise, that would constitute going beyond the limits which the law allowed. The courts would recognise abuse when they saw it.

19. The petitioners submitted that the Lord Ordinary erred on the issue of justiciability, as it was argued before him. In effect, his decision was that, when it came to prorogation, the Executive was above the law. If the Executive chose to use that power, for whatever purpose it wished, and for however long it wished, the courts could do nothing about it because there were no justiciable standards by which to determine whether the power was lawfully being used or unlawfully being abused. That was wrong, and an abdication of the constitutional function of the court to ensure that the rule of law was maintained. The power of prorogation was a residual power in the hands of the Executive, by which it could suspend the sitting of Parliament. In a constitution characterised, not just by the rule of law but by the sovereignty of the legislature, the idea that the Executive could suspend the legislature had to be seen as a very narrow and wholly specific possibility, which the Executive might exercise only for good and proper reason, only at a proper time, and only for the shortest possible period. Otherwise, there was no sovereignty of Parliament; rather there would be sovereignty of the Executive. On the Lord Ordinary’s reading, however, the Executive could say that Parliament, having been elected, was rather getting in the way of an optimistic, forward-looking legislative programme and so should be suspended for the next year, or two years, or three. There would be nothing to stop elections taking place once every four years, and Parliament simply being prorogued meantime. That, however, would be absurd and unconstitutional, and would amount to dictatorship. If Parliament had no power to stop itself from being prorogued upon the exercise of prerogative power by the Executive, then who guarded the holder of that power and prevented its abuse? The answer was, the court. It was the court’s fundamental role in constitutional issues of this type to ensure the balance of power and mutuality of respect amongst the three pillars of state, namely the Executive, legislature and courts. Otherwise, the courts were powerless to respond to unconstitutionality, which was plainly wrong.

20. As soon as it was accepted that the court had a role, that the power of prorogation was limited and governed by law and could not be used for improper purposes or otherwise abused, then the courts were able to tell the Executive when it had erred. That was the purpose of judicial review. The courts recognised and respected the acts of the Executive when carried out within their proper sphere, but the courts determined the limits and proper sphere within which those powers could be exercised, and enforced its view by pronouncing appropriate remedies.

21. None of the cases relied upon by the respondent were relevant to the issue of prorogation, and the proposition that the matter was not justiciable (as to which the Lord Ordinary had been persuaded) was simply unsustainable, because it was unconstitutional. The petitioners invited the court to treat the respondent’s submissions in this regard with ‘extreme caution’.

22.Not since the 17th century had the power of prorogation been ‘so nakedly abused’, resulting in the Claim of Right 1689. The court was required to interpret those legislative provisions and apply them to the circumstances of the present case. According to the distinctive Scottish tradition, that the King could always be called to answer before the courts, the precise wording differed from that of the Bill of Rights 1688 – notably, that Parliament be ‘allowed to sit’ once summoned, and therefore ought not to be prorogued if it would be contrary to its constitutional duty to ‘redress all grievances’ and preserve the law. Such ‘constitutional instruments’ (R (Buckinghamshire County Council) v Secretary of State for Transport: re HS2 [2014] UKSC 3, [2014] 1 WLR 324) were not ‘black letter taxing statutes’, rather they set out principles intended to be applied across the ages and their words ought to be interpreted against the historical and traditional background of the principles embodied. The meaning was ‘absolutely clear’ – that a legally limited monarchy was not to be transformed be ‘evil and wicked counsellors’ into an ‘arbitrary despotic power’. It did not take much imagination or interpretation to apply those words to the circumstances of the present day. In the modern day, despite having no majority of any sort, the Government sought to dominate Parliament by seeking to exercise its powers outside Parliament in order to avoid parliamentary scrutiny.

23. The sovereignty of Parliament was a fundamental principle of the UK constitution (R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, Lord Bingham at para 9). Whilst the Lord Ordinary appeared to have some difficulty with the petitioners’ formulation of the point, it entailed that Parliament decided on the allocation of prerogative powers. It was entirely a matter for Parliament to confer particular powers on the Executive, if it so wished, by statute. The fact that it chose not to do so in any particular situation simply meant that it had decided for the moment to leave that specific power with the Executive. Indeed, Parliament had removed the power to dissolve Parliament and to call a general election whenever it suited the Executive to do so, in terms of the rules now set down in the Fixed Term Parliaments Act 2011. The interpretation of those rules in legislation was a matter for the courts. In any event, it could not be said that there could be no objection to a refusal by the Government to call an election after five years, or to dissolve Parliament for six or seven years, on the basis that the matter was not justiciable. The Executive had to be held to account if it breached the law, and its exercise of prerogative power could be challenged on the basis of improper or arbitrary use (Attorney General v De Keyser’s Royal Hotel [1920] AC 508, Lord Parmoor at 567-8).

24. Upon questioning by Lord Brodie as to whether it was the petitioners’ position that an exercise of the prerogative power would always be justiciable, the petitioners argued that it was the exercise of this prerogative power – the specific power to prorogue – in the circumstances of this case that was justiciable. The respondent had to be able to vouch the contrary, notwithstanding the terms of the Claim of Right 1689. In any event, it was contrary to constitutional principle that prorogation would always be non-justiciable – the fact that it had been abused in the past, and was being abused now, attracted justiciability.

25. The principle of Parliamentary accountability was also important. Whilst the Executive was politically accountable to Parliament, the power to suspend Parliament impeded that constitutional check and balance of accountability, specifically in relation to discussions and negotiations with EU institutions. To suspend Parliament in the knowledge that the most crucial thing happening was a potential fundamental constitutional shift as a result of the UK exiting from the EU, was to try to hide from constitutional accountability. That was precisely an abuse of power, unconstitutional, and could be declared unlawful by this court.

26. That said, political and legal accountability were not mutually exclusive, and could overlap (R (Barclay) v Lord Chancellor (No 2), supra). The case of Barclay was said to be a ‘strong case’ in favour of the petitioners, as jurisdiction and justiciability were asserted in the plainest terms, albeit that the decision on the facts was, in essence, that the UK courts were forum non conveniens.

27. The Executive was obliged to obey the law, and it was for the courts to enforce the rule of law by providing the necessary remedies, including judicial review on the ordinary principles of legality, rationality and procedural impropriety of the use of prerogative powers for legislative functions (Edwards v Cruickshank (1840) 3 D 282, LP Hope at 306; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453, Lord Rodger at para 106; Teh Cheng Poh v Public Prosecutor [1980] AC 458, Lord Diplock at 473). The law got ‘to the very heart of advice’ to the sovereign as whether or not to do something, if that was what was required, and justiciability was ‘so completely established’ that there could be little argument about it. The Executive’s power was not limited or unfettered, and this was an affirmation of justiciability (R (Sandiford) v Foreign Secretary [2014] UKSC 44, [2014] 1 WLR 2697 at paras 50, 52, 65). The exercise of the power of prorogation would be lawful only if consistent with constitutional principle (Prof Paul Craig, ‘Prorogation Constitutional Principle and Law, Fact and Causation’, Oxford Human Rights Hub, 31 August 2019).

28. There was no sworn evidence from the Prime Minister in the present case who, as the decision maker, had a duty candidly to disclose his reasons in an Affidavit, subject to the possibility of cross-examination or consideration of a charge of perjury insofar as those reasons contained anything other than an accurate and complete account of the decision to prorogue. Nor were there Affidavits produced by any others who were apparently closely involved, according to the documents lodged. Those who had made the decision were apparently unwilling to tell this court why. Whilst the Lord Ordinary had considered that the petitioners’ Affidavit evidence constituted merely ‘opinion evidence’, there was no contrary evidence – only a ‘miscellany of carefully chosen documents’ to show how the situation was to be ‘handled’. That was not the language of truth, but ‘political spin’ – and, in the exercise of the central power of the Executive to suspend Parliament, spin was not enough. There had to be a legal and valid justification, and no such justification had been provided. Accordingly, this court was entitled to draw the most adverse inference against the decision maker due to his complete failure to come to court and explain his decisions (I v Secretary of State for the Home Department [2010] EWCA Civ 727 at para 55; R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, Laws LJ at para 50; R (Das) v Home Secretary [2014] EWCA Civ 45, [2014] 1 WLR 3538, Beatson LJ at para 80). Where matters were challenged and justifications sought, they must be examined. The Prime Minister had failed to understand Parliament’s fundamental constitutional role, had based his decision on a fundamentally flawed basis, had used his power for wholly improper purpose, had misled himself, and ‘self-deceived’ himself when saying that prorogation was over the party conference season and so would only result in Parliament losing a couple of days. If Parliament did not sit during the conference season, it was because Parliament itself had decided to go into recess. That was a matter for Parliament in the circumstances, and it could decide not to do so, and to reconvene at any time, in order to sit due to any particular constitutional emergency or crisis. In the event of prorogation, that power was taken away from Parliament.

29. Nor were there any pleadings on behalf of the respondent that covered the reasons for prorogation, which merely stated that the claim was academic and hypothetical. That was not true. The pleadings had been finalised on 27 August, the way before the prorogation order was pronounced, although in fact the decision had been taken on 15 August 2019. That was not candidly disclosed in the pleadings, despite unwarranted further adjustment of the pleadings by the respondent outwith the court timetable, on 2 September, to which the petitioners had no opportunity to respond. The petitioners argued that the respondent had ‘misled the court’ by attacking the petitioners’ fear that the decision would be made, whereas the decision had already been made two weeks earlier.

30. The petition had been raised on 31 July, and permission to proceed had been granted on 8 August. As originally lodged, the respondent’s plea was advanced to the effect that there was ‘no basis for reasonable or even hypothetical apprehension’ that the Government intended to advise Her Majesty The Queen to prorogue Parliament with the intention of denying ‘any further Parliamentary consideration’ before Exit Day of the UK’s withdrawal from the EU. A procedural hearing had taken place on 13 August and a timetable set down allowing adjustment of parties’ pleadings until 27 August. The petitioners now knew, from the documents lodged by the respondent, that the decision to prorogue had been taken on 15 August, and that the Prime Minister had set up a call to Her Majesty The Queen on 27 August. On that day, the respondent adjusted its plea to remove the words ‘or even hypothetical’. Nonetheless, that plea was misleading. The prorogation order was made on 28 August, and anecdotally ‘started leaking’ on that morning. The final version of the respondent’s plea, as further ‘adjusted’ on 2 September, removed reference to ‘any further’ Parliamentary consideration and substituted ‘sufficient time for any proper’ Parliamentary consideration instead. Accordingly, the position was ‘clearly in view’ at that time.

31. The court was entitled to use common sense, against the background that the Prime Minister had refused to ‘put his real reasons on the line’ by placing an Affidavit before this court under oath. The court could also have regard to the background that the Prime Minister had shown a ‘certain lack of care’ when it came to ensuring that the truth, the whole truth, and nothing but the truth, was contained in any announcements. That was the exercise of drawing adverse inferences. The petitioners had been deprived of the opportunity to cross-examine the Prime Minister on the basis of his record of being ‘less than frank’ and ‘not fully consonant’ with the idea of ‘full truth telling’. The fact that he had chosen to avoid that situation was something to which the court was entitled to have regard. Whilst the petitioners’ primary position before the Lord Ordinary had been that the late lodging of documents by the respondent had been an ‘ambush’ with no explanation or apology, that having been done it was necessary to look ‘carefully, forensically, clinically’ at what had been said and redacted as to what actually lay behind the Prime Minister’s position. In the light of the contents of those documents, it could not seriously be suggested that anybody could have placed a sworn Affidavit before this court to the effect that the decision to prorogue was nothing to do with Brexit, because to do so would be ‘speaking an untruth’. That was the reasonable, proper and necessary inference to be drawn – that prorogation was to do with pushing forward the Government’s plan to push for the UK to leave the EU with or without a deal on 31 October, and if Parliament ‘got in its way’ or no longer presented a ‘united front’ to the EU, then the easiest thing would be to dissolve it. That was what had been done, and why it had been done, and it was an unconstitutional basis upon which to do it. The justification given by the respondent failed any proper scrutiny in a situation where the court was required to apply ‘heightened’ or ‘anxious’ scrutiny to the reasoning offered. The respondent was required to demonstrate ‘the most compelling justification’ for exercise of the power in this way and at this time, which was being used in a manner which had profoundly intrusive and distortive effects on the constitution ‘at this time, of all times’ when it was necessary for Parliament to sit in order to maintain the Government’s political accountability and to allow Parliament to express its views and to legislate for any withdrawal, on whatever terms, of the UK from the EU. The exercise of the power represented an ‘attack’ on the delicate balance of the constitution, even more so against the background of the Government’s policy to pursue Brexit ‘do or die’ on 31 October, which would have a profound effect on the rights of individuals living in the UK and of UK nationals living elsewhere in the EU, and which could mean the sudden, immediate, catastrophic and unlimited withdrawal of all and any rights that could currently be claimed by virtue of status as EU citizens (see, eg, Case C-621/18 Wightman and others v Secretary of State for Exiting the European Union EU:C:2018:999, [2019] QB 199 at para 64; Wightman and others v Secretary of State for Exiting the European Union (No 2) [2018] CSIH 62, 2019 SC 111, Lord Drummond Young at para 53). No such justification had been made available to this court. Rather, the inference could be drawn from the documents lodged by the respondent that the ‘clear and true purpose’ had been to prevent or impede Parliament from holding the Executive politically to account in the run up to Exit Day, and from legislating on the UK’s exit from the EU, and to allow the Executive, notwithstanding that it had no parliamentary mandate to do so, to pursue a policy of ‘no deal’ Brexit without further parliamentary interference. It was a ‘pre-emptive strike’, a ‘smash and grab raid’ on the constitution, a ‘power grab’, intended to silence and disempower Parliament for the crucial period, and was therefore unlawful. In those circumstances, where the Executive had abused its power of prorogation, it was the ‘paramount duty’ of the court to say so (R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, Lord Lloyd of Berwick at 571E-F).

32. Parliament was not given to idly passing legislation, and had passed into law, inter alia, the European Union (Withdrawal) Act 2018, which ought not to be treated as a ‘thing writ on water’ (see, esp, ss. 9, 10 and 13). Those provisions had been enacted in the face of Government opposition and required parliamentary approval of the outcome of negotiations with the EU. It was rather a contrary reading of those provisions by the respondent that they applied only if a withdrawal agreement had been concluded. It was the ‘outcome’ of negotiations, whatever it was, that required parliamentary approval and authorisation in the form of primary legislation expressly and explicitly allowing for the UK to leave the EU whether on terms negotiated or failed to be negotiated. If there was ‘no deal’, then there had to be express parliamentary authorisation, and there was none. This required a complex, lengthy procedure involving Parliament scrutinising the terms of any withdrawal agreement and, if so advised, approving it or not. It had been attempted three times before, and it was clear that Parliament was not to be reduced to ‘rubber stamping’ whatever the Executive placed before it. Parliament intended for itself a ‘full and active’ role in what deal was ultimately reached on the basis upon which the EU and UK would part company. That was entirely to be expected given the impact on fundamental rights and the constitution. There was no time for authorisation or consideration of such matters, where the focus in the course of this week had been for Parliament to take control of business and attempt to legislate in the face of Government opposition and filibustering to make sure that the UK did not leave on a ‘no deal’ basis. It had been announced that prorogation was likely to happen on Monday 9 September, which was part of the apparent attempt to stop the legislation currently going through Parliament from completing the necessary stages and achieving Royal Assent, specifically to thwart the role that Parliament had ascribed to itself in terms of the 2018 Act. The petitioners understood that prorogation was on the schedule of business for Monday. The respondent’s position, that there had been no breach of Parliamentary intention on the basis that prorogation was constituent with the provisions of the Northern Ireland (Executive Formation) Act 2019 amounted to ‘gaming the system’ and was untenable in terms of the need to maintain constitutional balance. Simply because Parliament had made provision in relation to the matters contained in the 2019 Act did not mean that Parliament had not thought to discuss or legislate in relation to broader issues arising from the UK leaving the EU. Rather, the overarching provisions in this regard were set out in the 2018 Act.

33. To the extent that the decision to prorogue arose against that background, it was vitiated by error of law that the Government could allow the UK to leave the EU without a deal compatibly with UK constitutional requirements. Absent the requisite parliamentary authority, it could not do so. As a matter of UK constitutional law, (i) EU law was a direct source of individual rights, whether or not mediated through national legislation, and (ii) the Crown had no inherent power to diminish, attenuate or remove individuals’ substantive EU law derived rights by executive action or use of the prerogative in the absence of the specific authorisation by Act of Parliament (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61). The analogy advanced before the court in Miller, of notification under article 50(2) TEU as pulling the trigger with the inevitable result that the bullet would hit the target and end individuals’ rights, had been shown to be false on the basis that the notice could be revoked (Case C-621/18 Wightman and others v Secretary of State for Exiting the European Union, supra). Therefore, by way of the European Union (Notification of Withdrawal) Act 2017, Parliament was merely authorising the Executive to initiate negotiations and had not authorised any Executive action that would result in any specific attenuation, diminution, change or removal of the substantive rights of individuals currently enjoyed or derived from EU law. Parliament retained the option of revoking notification if the proposed deal was worse than current conditions. Nothing in the 2018 Act could be read in any contrary sense, to the effect that it authorised the Executive to leave on a no deal’ basis. Section 1 of the 2018 Act merely altered the manner in which EU law derived rights were mediated internally within the UK legal system.

34. Given that there was no Act of Parliament which expressly, or by necessary implication, authorised the Executive to leave on a ‘no deal’ basis, the current exercise of the prerogative to facilitate such an exit was vitiated by error of law. In this regard, it was important to note that ‘necessary implication’ was not to be confused with ‘reasonable implication’ (R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, Lord Hobhouse at para 45; R (Black) v Secretary of State for Justice [2017] UKSC 81, [2018] AC 215, Baroness Hale at paras 36(3) and (4)). Accordingly, the prorogation order was itself vitiated and fell to be struck down on that basis.

Submissions on behalf of the Lord Advocate (intervening)

35. Counsel (James Mure QC, and Christine O’Neill, solicitor advocate) adopted the written submissions lodged on behalf of the Lord Advocate, noting that permission had been granted to the Lord Advocate to intervene on behalf of the Scottish Government for its interests in the context of withdrawal of the UK from the EU. Those implications flowed from the timing and duration of the proposed prorogation, and concerned the responsibilities of the Scottish Government and Scottish Parliament in preparing Scotland and the Scots statute book for withdrawal from the EU. These matters were obviously of very great importance for the Scottish Government, as they were for the UK Government.

36. On the issue of justiciability, it was submitted that the Executive in the UK was democratically accountable because, and only because, of the representative legitimacy of Parliament, within which members of the Executive sat. Once the Executive suspended Parliament, that democratic accountability was lost. The unusual and important element in the present case was that this court was being asked to address the de quo of the Executive’s own legitimacy under our constitution. The Lord Ordinary (at paras 25 and 26) painted a ‘somewhat bleak picture’ where the Executive may, by grace, permit Parliament to sit, but if it chose to prorogue, then Parliament was silenced. That appeared to be the case in respect of prorogation for any length of time, for any reason, and in any circumstances, because such matters were said to be questions of ‘high policy’ and ‘political judgement’. The Lord Advocate submitted that, in principle, the lawfulness of the exercise of discretionary prerogative power was within the jurisdiction of this court (see, eg, Council of Civil Service Unions v Minister for the Civil Service: re GCHQ [1985] AC 374; R (Sandiford) v Foreign Secretary [2014] UKSC 44, [2014] 1 WLR 2697; see, also, Sir John Laws, Law and democracy 1995 Public Law (Spr) 72 – 93).

37. The respondent’s position was understood to be that, in essence, prorogation was a political matter. However, it was not political in the sense that justiciability was understood to have applied in other cases, such as those concerning the conclusion of treaties or proceedings in Parliament (Shergill v Khaira [2015] AC 359, Lord Neuberger at paras 41 and 42). The present case concerned advice in respect of the making of an Order in Council, which order could be reviewed by this court (Barclay v Lord Chancellor (No 2) [2014 UKSC 41, [2015] AC 276; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453). The court’s function, once the matter was before it and accepted as justiciable, could be circumscribed by the nature of the court’s constitutional role or the limits in the court’s institutional capacity. As ever, in law, context was all. In present case, the subject matter that was said to be non-justiciable was the very capacity of Parliament, as the representative organ and sovereign Parliament of the United Kingdom, to sit for a period of five weeks. In this regard, counsel agreed with the observation of Lord Drummond Young that this would, effectively, close down parliamentary scrutiny of the Executive. It was not for this court to take a decision about the prorogation of Parliament, and nobody appeared to suggest otherwise before this court. Nonetheless, this court should not readily relinquish its proper constitutional function, which was to probe the quality of the reasoning offered by the Executive for the prorogation, and to ensure that assertions made by the Executive were properly justified.

38.The authorities cited by the respondent to suggest non-justiciability were classically cases about foreign relations or purely political matters (see, eg, McCLean v First Secretary of State [2017] EWHC 3174 (Admin)). It would be wrong for the court to find a wholly new subject matter to be outside the realm of justiciability, where the point in issue essentially subverted the existence of the political realm. These were not just acts with a political dimension or matters only of interest to politicians. At stake was an ‘existential issue’ for the institution of Parliament itself, and therefore, the court should be particularly careful not to use broad language like ‘high policy’, ‘political judgement’, or ‘subject matter’, without examining carefully what was at stake. The courts regularly protected Parliament, and the legislation passed by it, from the Executive, including the Executive exercise of prerogative powers (see, eg, R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, Lord Browne Wilkinson at 552; Attorney General v De Keyser’s Royal Hotel [1920] AC 508). Given that background, it would be curious, indeed, if the courts were to disbar themselves in principle ab initio from protecting the ability of Parliament to sit and debate. The mere fact that political judgement may be involved in the decision as to whether, when, and for how long to advise that Parliament should be prorogued did not mean that the court had no jurisdiction to enquire as to whether the particular Order in Council was justified in the circumstances. The court would be only too well aware that matters of political controversy and consequence passed through the courts on a daily basis. There were many Executive acts with impact in the political sphere, which were nonetheless reviewed by court. The real issue was how the court should review the decision at issue, bearing in mind its constitutional duties and institutional capacity. By that it was meant, what standard of review should the courts apply and with what level of intensity. It was submitted that this court, as a court with a supervisory jurisdiction of the type this court had, was well able to consider the lawfulness of the Order in Council proroguing Parliament by reference to common understandings in this polity as to, firstly, the purpose of prorogation and, secondly, the customary duration of a prorogation prior to a Queen’s Speech – it being understood from papers lodged by the respondent that a period of 1 – 2 weeks was indicated as the ‘standard’ prorogation before a Queen’s Speech – and, thirdly, the necessity that any intrusive interference with a ‘constitutional fundamental’ such as Parliament required a ‘compelling’ justification. In other words, if it were accepted in principle that this was a matter of gravity, which this court should seek to address, the court did have the ‘tools’ or ‘criteria’ by which to judge this Order in Council. The courts were, of course, used to considering whether rational and relevant reasons had been given at the time a decision was made, which justified that act or decision in its factual and constitutional context. That was the sort of exercise involved in judicial review day by day. In the absence of compelling reasons, which were rationally connected to the act or decision, properly understood in its constitutional context, this court could find that that act was irrational and unlawful. The flexibility of the available standards of review allowed this court to take a ‘light’ or ‘intrusive’ approach depending on the value that was at stake, and the context. In the present case, the ‘range of rational decisions’ on a proportionality analysis, given the importance of Parliament sitting, would be prorogation for a period of 1 – 2 weeks on the respondent’s own analysis of simply ‘paving the way’ for a Queen’s Speech (Pham v Secretary of State 2015 1 WLR 1591, Lord Sumption at paras 105 and 106). Those common understandings provide the court with the institutional ability to analyse what had taken place and to review it on ordinary judicial review grounds. In the present case, given the nature of the right involved – namely, the importance of Parliament not simply in a democracy but also to the Executive in drawing its legitimacy from sitting there – the court could analyse the prorogation decision as being outside the range of reasonable decisions. It was ‘the application of proportionality thinking in the context of a Wednesbury challenge’.

39. If the court accepted the reason given at the time of the Order in Council being made, namely that it was simply intended to pave the way for a Queen’s Speech, then the court had to ask whether it was adequate to support a 5-week prorogation. The respondent’s documents had suggested a period of ‘usually under 10 days’. If the court were to be asked to have regard to some other reasons, such as political reasons that might emerge from other documents discussed by the parties, then the court would need to know what those reasons were, and what compelling justification they provided in support of the prorogation.

40. In summary, it was submitted that the mere fact that this Order in Council had an impact in the political sphere did not make the underlying advice or the Order itself non-justiciable. This court should not be blind to the ‘common understanding’ in the UK that, without Parliament being able to sit, legislate and hold the Executive to account, our constitution was ‘bereft’. That common understanding was so strong that the Executive had to show ‘particularly good and rational reasons’ for proroguing Parliament for a period of 5 weeks in the circumstances. The constitutional and sovereign right of Parliament to sit and hold the Executive to account was so fundamental as to require ‘special recognition and protection’ in the courts. The Opinion of the Lord Ordinary would, in effect, remove all such protection, finding ‘curiously’ that Parliament alone could hold the Executive to account for not allowing it to sit. As the Lord Ordinary put it (para 28): “It is for Parliament to decide when it will sit and it routinely does so.” That took matters back to the very ‘curiosity’ and ‘exceptional nature’ of this case – Parliament was disabled from sitting and could not hold the Executive to account.

41. In closing, it was not suggested that the court should do any more than accept its constitutional role, applying the principles and standards of judicial review in the ‘unique circumstances’ of this case, and drawing upon ‘common understandings’ about the purpose of prorogation, its customary duration, and the necessity that any ‘intrusive interference’ with so fundamental a constitutional body as Parliament required, in every case, a compelling justification.

Submissions on behalf of the respondent

42. The respondent invited the court to refuse the reclaiming motion, adopting the basis set out in its written note of argument. The respondent’s primary position was that the claim is simply non-justiciable. There were no judicial or manageable standards – in other words, there was nothing in the ‘armoury’ or ‘toolkit’ ordinarily available to the court to assess the kind of decision with which it was confronted in the present case. The instruments available to assess what ordinary decision makers did in carrying out their statutory jurisdiction or decision-making function were simply not present. That was what the expression was intended to mean. The second related aspect was that non-justiciability applied to issues that were intrinsically political or involved ‘high policy’ rather than law. Those were matters in which the courts had, quite rightly, hitherto refused to engage. The description ‘intensely political’ applied equally to the present case and was not special to the cases cited by others.

43. Prorogation was governed by constitutional convention – Ministerial advice to prorogue Parliament was governed by convention, and it was well-established and focussed sharply in Miller that constitutional conventions were non-justiciable. There may, of course, be repercussions if such conventions were not followed, but those repercussions were not going to be in the courts, but in Parliament or before the electorate. That was an important point, which went beyond constitutional conventions. Whilst it had been suggested that there was no accountability, and that that was a ‘gaping hole’ which the courts had to fill, it was important to note that the constitution went beyond accountability by recourse to courts. There was also accountability to be found in the political sphere, in the first instance in Parliament itself or, ultimately, by the electorate going to the ballot box.

44. The Northern Ireland (Executive Formation) Act 2019 was important, as it spelled out the timetable which Parliament had decided was appropriate by which to receive progress reports on the formation of the Executive. The first report had been due yesterday (Wednesday 4 September) and, indeed, had been laid yesterday. However, its ‘broader significance’ was that Parliament had thereby decided when it wished to sit, and provided what was to happen if it happened to stand prorogued at a time which conflicted with the dates on which it was required to consider those reports. Parliament had thereby recognised the prerogative power to prorogue, and that it could ‘trump’ that power by passing legislation. The interaction between legislative power and the prerogative power of prorogation could be seen there and elsewhere, in instances where the general prerogative power to prorogue was, in particular circumstances, circumscribed by legislative act. It followed that it was Parliament’s job to set out when it was to sit, and it was not for the court to ‘devise’ some form of ‘additional control’, or to provide for additional sitting dates, which Parliament could readily have provided for itself. That was the essence of the respondent’s position in respect of non-justiciability.

45. The respondent’s second principal point was that the petitioners claim was ‘academic’, for precisely the same reasons. Parliament was going to be sitting anyway, at specified periods, in order to comply with s. 3 of the Northern Ireland (Executive Formation) Act 2019. The fear that Parliament would simply be ‘closed down’ was not going to materialise, so in that sense the petitioners’ claim was academic.

46. Thirdly, the respondent submitted that the advice to prorogue did not infringe any existing legislative provisions, in particular the Claim of Right 1689 but also various provisions in more recent legislation, as the petitioners claimed.

47. The essence of the prorogation power was uncontentious, and subject only to specific legislative provisions in specific contexts. Parliament had otherwise expressly preserved the prorogation prerogative. Accordingly, the petitioners’ claim in seeking to challenge the advice in the present case did so even though it conformed to all applicable legislative controls. The petitioners invited the court to superimpose its own controls on the ability of the Prime Minister to advise in respect of prorogation. The petitioners had made repeated reference to ‘gaming the system’ in the context of the Northern Ireland (Executive Formation) Act 2019 – a more neutral and helpful description was that the exercise ‘recognised the restrictions with which it must comply’. Far from ‘gaming the system’, it was simply how it worked. The Executive had to give way when it was accepted that Parliament should be in session or, if not, recalled at the relevant time.

48.There were no judicial or manageable standards insofar as this was not the kind of thing that the court was equipped to review or control. It was ‘inherently political’, and to weigh a political decision against legal standard was to measure things that were by their nature ‘not commensurable’. The obvious reason for prorogation was for the Government to manage its legislative agenda. That was a political matter for it to deal with year-to-year and month-to-month, and involved questions as to how it could secure its political and legislative objectives, which were obviously political matters. When it would be a good time to interrupt parliamentary business, with the consequence that some bills might fall and not be reintroduced, in many cases forming part of Government’s legislative programme, was also a political matter for it to determine. Similarly, whether and when to set out a new legislative agenda in a Queen’s Speech was a political matter for Government. There may be different views on these matters, as they were intensely or inherently political. It was inherent in seeking to prorogue Parliament and move on to new parliamentary session, that the new Government did so in order to advance its own political policies.

49. The case of Shergill v Khaira [2015] AC 359 was a helpful discussion of non-justiciability generally, at greater length than any of the other authorities, albeit in an entirely different factual context. It was recognised that, amongst the reasons for matters being non-justiciable were that they were either political or could in no way be measured by ‘judicial or manageable standards’, or often it may be both. There was nothing new in these propositions (see, eg, Council of Civil Service Unions v Minister for the Civil Service: re GCHQ [1985] AC 374, Lord Diplock at 411E). However, the lengthy account could quite usefully be summarised as the ‘absence of judicial or manageable standards’. Whereas, in other cases, the court could be assisted by expert evidence with regard to the standards that ought to be met by professionals, and whether any failure amounted to breach of the relevant standards, it was not possible to bring a politician into court as an ‘expert’ and to ask what should be done as a matter of political judgement. There were no objective standards as views differed and were entitled to respect, but those in the Executive were entitled to have the opportunity during that time to promote their own political views and agenda.

50. It was inherent in the mutual respect of one constitutional institution for the other that accountability had to be sought in the right forum or ‘pillar’ of the constitution, which sometimes meant the legislature rather than the courts (eg R (Wheeler) v Prime Minister [2008] EWHC 1409 (Admin). In the present case, too, there was a wide spectrum of opinion on different sides of the issue that arose, namely how the Government should conduct policy in relation to Brexit. The present case was not concerned directly with that issue, but advice to prorogue Parliament. In relation to that, according to the media, there was a wide range of differing views.

51. The advice was not vitiated by any improper purpose, because it was given in a political context taking account of political factors including how the Government wished to develop its political agenda. Having regard to the context, and taking account of the political factors, the advice to prorogue Parliament was exactly what would be expected. That did not render it unlawful, as it was an intrinsic part of advice to prorogue Parliament that it took account of political factors. There was ‘nothing to be ashamed of’ as a politician in promoting a political agenda, nor anything unlawful.

52.The court ought not to enter the political area at the most general level, but also at the narrower level where there was no relevant standard that could be applied. It was not for the court to ‘superimpose’ additional standards (McClean v First Secretary of State [2017] EWHC 3174 (Admin)) where accountability could be found in Parliament or the electorate at large.

53. It was accepted, upon questioning by Lord Drummond Young, that for the period of prorogation, Parliament would not be sitting and holding the Government to account. Nonetheless, the appropriate determination of the present application was to conclude that it was not a matter which the court should enter into, having regard to ‘wider considerations’. The court was not faced with a case of an ‘extreme kind’, such as prorogation for an indefinite period, but a specific period of some five weeks. It was relevant to note that, whilst there would be no scrutiny of Executive action by Parliament, that period was limited to five weeks. Indeed, for what it was worth, the terms of the Order in Council also made provision for Parliament to sit in September and October.

54. It was accepted that the courts had jurisdiction to review and control the exercise of prerogative power, and it was accepted entirely that prerogative powers were reviewable in principle, subject to the qualification the courts have not entered into review of certain matters on the grounds of subject matter – one of which was political decision-making. Those were simply not apt for judicial control on the review of prerogative powers in the sense that the court was not equipped to assess them. Such cases were not in the territory of objective standards of decision-making. It was also accepted that the court could apply ordinary principles of judicial review, taking due care to observe that the primary decision-maker was the Executive, but whether it was able to do so depended on the precise exercise of the prerogative power in question. There were some examples where it was clear that the court would not review the exercise of power in relation to foreign policy, but other cases where the court considered that it was properly reviewable on the basis that it was not really a matter of foreign policy albeit that there was a foreign component (see, eg, R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] QB 811). It was necessary to look at the subject matter of the power and the circumstances in which it had been exercised. In cases of political judgement, ‘flexible responses’ were required rather than the application of a ‘strict rule’ (Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). Prior to the Fixed Term Parliaments Act 2011, dissolution of Parliament was precisely an example of a matter of potentially great importance, which was left to the judgement of political leaders. Although not the same as prorogation, there were similarities at least in their significance – this, too, was a matter of potentially great importance of a political nature. Indeed, if it were suggested that the statutory duty imposed on the Prime Minister to recommend a date to HM The Queen for an ‘early’ general election, then for the same reasons as already discussed, that recommendation would be non-justiciable.

55. On the hypothesis that the real reason for proroguing Parliament was said to be so that there would be no debate on a particular issue, that was a political reason, not a legal reason, in the sense that it was not suitable for scrutiny by the court, and the decision was taken on political grounds, such as a decision to prorogue in order to launch a new legislative agenda. The fact that there was a political motive did not make the advice unlawful. Where advice was given for a political purpose, in a political context, it was a matter of ‘high policy’ rather than ‘low tricks’, whether or not one agreed with the advice or decision taken. If the respondent was correct regarding non-justiciability, there was no place for scrutiny of the adequacy of reasoning – the subject matter was simply ‘off limits’. Whilst judicial review standards could be used to review a decision to prorogue, the present case was ‘very far from being’ appropriate subject matter for such a review as it concerned ‘high policy’ and ‘political judgement’. That being the context, it was not for the court to superimpose additional legal standards.

56. The petitioners’ complaint was originally in respect of prorogation to prevent ‘further’ consideration of withdrawal of the UK from the EU. Subsequently, that was replaced with ‘sufficient time’ for ‘proper’ consideration, which was the claim now. That, of itself, made clear that there weren’t any judicial or manageable standards by which the claim could be determined. The court was being asked to decide what was ‘sufficient’ time and ‘proper’ consideration – that was an invitation not just to regulate the duration and frequency of parliamentary debate, but to ensure that there was enough of it for Parliament’s purpose. The court had no way to determine such matters, and for that reason it was simply not for the courts to decide how much parliamentary time Parliament required to consider matters or how much time would be sufficient. Those were matters for each of the Houses of Parliament itself.

57. It was accepted that prorogation removed the default position that Parliament sat and decided for itself when to do so. However, it was argued that that did not answer the point that, if the complaint was that prorogation was too long, the court had to decide why that was so. If the complaint was that the period denied proper consideration, it could not be for the courts to decide how much parliamentary time was required. Such matters were, in any event, covered by parliamentary privilege. These were areas that the court did not ‘ordinarily or ever’ enter.

58. By contrast, the Northern Ireland (Executive Formation) Act 2019 expressed the will of Parliament, and could be construed in order to understand what Parliament intended. That was the normal, orthodox and proper business of the courts. In the present case, it was suggested that the courts should go beyond what was known to be the express will of Parliament and devise some further controls going beyond, and therefore ‘not entirely consistent’ with the rules that Parliament had devised for itself. It was not possible to see how the court could do so, or how it could be appropriate for the court to do so. The court had no way of knowing whether prorogation was appropriate for 5 days, but not 10. It could not know how much consideration ought to be given to any particular issue, or which issues should be considered when the court, rather than Parliament, thought that Parliament ought to be in session. What period of prorogation was too long or too short? There were historical examples of very short prorogations – even a single day – such as to ensure the passing of the Parliament Act 1949. There was no rule about how long prorogations should be, and to ask what factor might justify a shorter or longer one was to enter into political considerations dependent upon the policies that the Government wished to pursue. Accordingly, the court did not have a standard, nor could it devise a standard or scheme, by which to measure or control the periods when Parliament should sit or be prorogued. The main point taken from the Lord Advocate’s submissions was that prorogation was ‘disproportionate’ in the sense that it was too long for the purposes explained to the public. That argument failed because there was no ‘standard period’ and no requirement that a longer period had to be ‘specially justified’. Section 3(4) of the Northern Ireland (Executive Formation) Act 2019, first and most generally, expressly recognised the prerogative power to prorogue; and secondly, it expressly limited that power for the purposes set out there. That was precisely how prorogation of Parliament was regulated – by statute, when Parliament wished to preserve itself from prorogation at times or for reasons that it did not wish it to occur. Section 3 of the 2019 Act required Parliament to sit during the period with which the petitioners were concerned, thereby addressing their concern that scrutiny of the Executive would be suspended entirely. It would not be suspended when Parliament was recalled to deal with those matters, if necessary, in accordance with s. 3(4). Secondly, the present application invited the court to go beyond what Parliament had determined for itself and to superimpose additional legal requirements, and that was not an invitation to which the court should accede. Thirdly, the statutory restrictions on prorogation emerged from a political and, ultimately, legislative process rather than legal one. The choices of dates were not ‘intelligibly reviewable’ by the courts, but the results of a political process. This confirmed that it was a matter for Parliament to regulate, and it had done so. Any further controls were inappropriate constitutionally.

59. Parliament had chosen when it wished to sit – when it got there, it was a matter for Parliament to regulate what it did. Once sitting, it could no longer be said that the Executive was not being held to account. Once there, it could be so held. Parliament was hardly going to be held up from scrutinising the Executive once it had been assembled if that was what it wished to do. The respondent entirely accepted the background to the enactment of section 3 of the 2019 Act, but the practical reality was that political accountability need not be restricted. There was no ‘rule’ that it had to be concerned only with formation of the Northern Ireland Executive. In that sense, it was a remedy for the petitioners – not in court, but as a means by which political accountability of the Executive was secured in Parliament.

60. The mutuality of respect between different constitutional sovereignties (Parliament and the courts) required that one should recognise the province of the other, and not interfere or otherwise trench on proceedings of the other (Coulson v HM Advocate 2015 SLT 438). There were various examples from statute where Parliament had chosen to regulate matters. The point was to show that, as with 2019 Act, where Parliament wished to regulate prorogation for particular purposes, it was able to do so and had done so. Moreover, Parliament chose not to regulate prorogation in the Fixed Term Parliaments Act 2011 (see, esp, s. 6(1)). Whilst the prerogative power to dissolve Parliament had gone, the prerogative power to prorogue was undisturbed by that legislation and remained. There were various examples going back to 1707, where Parliament had chosen to regulate for itself what should happen if it stood prorogued upon the occurrence of a particular event, such as the death of the sovereign or various emergency situations where Parliament, if prorogued, ought to be recalled quickly. Therefore, regulation could and had been made by Parliament in situations where it thought appropriate.

61. In certain circumstances, the courts have moved beyond Lord Roskill’s ‘list’ to say that some matters are reviewable, but the question again was whether the nature and subject matter were amenable to the judicial process or whether judges were ill-equipped to deal with it (Council of Civil Service Unions v Minister for the Civil Service: re GCHQ [1985] AC 374, Lord Roskill at 417; cf R v Secretary of State for the Home Department, ex p Bentley [1994] QB 349). Moreover, it was important to note that prorogation of Parliament was ‘quite closely related’ to the dissolution of Parliament, and both were appropriately identified as matters of ‘high policy’. It was conceded that their effects were different, but for present purposes it was sufficient to observe that the subject matter of the prerogative power was clearly ‘high policy’ and politics. The giving of advice to prorogue was on ‘the same general level politically’ as dissolution.

62. The key proposition from Miller was that the courts could not enforce political conventions, and that the appropriate sanction for non-observance was political sanction. That brought the discussion back to the point that accountability was sometimes to be found not in the courts but elsewhere.

63. Finally, it was not clear the extent to which the petitioners suggested that there was any difference between Scots and English law, but there was high authority to the effect that prerogative powers in certain contexts were the same throughout the UK (Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964 SC (HL) 117). There was no difference in the present case. This was a case about advice to the UK sovereign to prorogue the UK Parliament on the advice of the UK Prime Minister. Therefore, it would be ‘most remarkable’ if there were some difference as to the reviewability of the power in those circumstances.

64. In any event, the Scottish courts had recognised that justiciability was a threshold requirement (Wightman and others v Secretary of State for Exiting the European Union (No 2) [2018] CSIH 62; Gibson v Lord Advocate 1975 SC 136).

65. As the events of the last few days had shown, Parliament was capable of moving at great speed if it wished to do so, and to change the legislative framework applicable to the present claim. A lot of legislative business had been got through this week, which pointed to the fact that the petitioners could not say that their only remedy was in this court. The petitioners had a way of addressing their concerns, and it was assumed that some or all of the petitioners had taken the opportunity to seek the accountability of the Executive in that way through appropriate action in relation to the legislation currently proceeding through Parliament in respect of the European Union (Withdrawal) (No. 2) Bill. According to that process, in terms of standing order 24, Parliament took control of its own agenda, which would ordinarily have been determined by the Government. Having done so, it was able to pass a Bill introduced by Hilary Benn MP to ensure that the Prime Minister was not in a position to proceed with a ‘no deal’ Brexit unless certain conditions were satisfied. It was understood, according to media reports, that the Bill would complete its passage today (Friday) and that the Leader of the House had indicated that Royal Assent would follow ‘swiftly’, although it was not known precisely when that would be. If Parliament were sitting, it could insert a legislative requirement that it ought to be in session regardless of the dates indicated in the prorogation order. Clearly the legislation introduced this week was not designed to further Government policy, precisely the opposite. Nonetheless, Parliament was able by the use of standing orders procedure to pass this legislation, which it was understood would shortly receive Royal Assent, with the objective to prevent exit of the UK from the EU without a deal (according to the promoters of the Bill) unless with Parliamentary approval. In the event of contrary legislative provision, the prorogation order would simply fall. Compliance with the order could not be insisted upon, in the face of legislation to the contrary as a matter of parliamentary sovereignty. Nonetheless, it was important to observe that parliamentarians may take different views and, depending on majorities, such legislation may or may not be enacted. These were things that parliamentarians could only achieve if they had appropriate numbers to pass the necessary legislation. That said, Parliament was able to do so ‘at great speed’ if there was sufficient political will to achieve it.

66. The historical background to the Claim of Right 1689 was of great interest, but not as one-sided as the petitioners would have it (notably strong voices expressed contrary views, such as the Faculty’s own Sir George Mackenzie; for contemporary historians, see Colin Kidd, Sovereignty and the Scottish constitution before 1707, 2004 Jur Rev, 3, 225 - 236). Whilst Parliament must be frequently called and allowed to sit, prorogation was in the first instance a matter for the Crown in exercise of the prerogative power and, in the second instance, for Parliament if it chose to limit by legislation – it was not a matter for the courts. In any event, there was no support for the claim that the Claim of Right had been, or was going to be breached. Parliament was regularly adjourned, prorogued or dissolved for one reason or another. It was not required to be in permanent session, so the petitioners needed to have some wider reason for saying that there had been infringement of this provision by prorogation for a particular time or period.

67. With regard to the petitioners’ argument that further legislation was required for the UK to withdraw from EU without an agreement, as a matter of law that was simply incorrect. The legislative groundwork had been laid for the UK to leave without a deal if that was what transpired. The European Union (Withdrawal) Act 2018 ended the supremacy of EU law in the UK, converted EU law as at ‘Exit Day’ into domestic law, and preserved laws made here in implementation of EU obligations. In addition, it enabled domestic law to reflect the context of a withdrawal agreement under art. 50 TEU. The short point was that the groundwork had been laid, and there was no need for more.

68. Section 13 of the 2018 Act was concerned only with parliamentary approval of a withdrawal agreement. The petitioners’ concern, about exit from the EU without an agreement, was different. The simple point was that there was no frustration of the terms of that section, as the petitioners would have it, or any other sections upon which the petitioners relied. These provisions were concerned with approval of a deal – if there were no deal, the provisions did not stand in the way of anything.

69. In any event, the petitioners’ argument in this regard was, in fact, irrelevant. The petition was founded upon the proposition that prorogation would defeat the ability of Parliament to prevent the UK’s exit from the EU without a deal. If, however, the petitioners were correct that the Executive had no legislative authority to leave without a deal, then unless Parliament was sitting, it could not provide any such legislative authority. Prorogation clearly did not obstruct the position of Parliament in that regard, and actually made it easier for the petitioners as the UK could not leave the EU until Parliament came back and made the necessary legislative provisions. On the petitioners’ hypothesis, therefore, there was no connection between prorogation and a ‘no deal’ Brexit, since the former would preclude the latter. The respondent did, however, concede upon questioning by Lord Drummond Young that the default position in the absence of further legislation according to UK law, or in the absence of revocation of notification under Article 50 TEU according to EU law, was a ‘no deal’ Brexit in either case. Therefore, Parliament would have to be sitting in order for it to have the ability to avoid the default position. Nonetheless, the point was said to ‘cut across’ the arguments set out in the petition.

70. As to the documents and the timeline of pleadings, adjustments to the respondent’s answers were intimated on 27 August at 16.43. Advice by the Prime Minister to HM The Queen was due to be given in a call on 27 August at 18.00. On 28 August, at 11.11, solicitors acting for the respondent informed the petitioners and the court of a press release advising that the Prime Minister had requested prorogation, or had advised HM The Queen to prorogue. Later that same day, at 15.22, they supplied the petitioners with the terms of the Order in Council which had been made. So far as the pleadings were concerned, whilst the respondent’s answers gave a general account of constitutional law and the three pillars of state, and indicated that the courts did not generally entertain hypothetical or academic matters, it was said in respect of the present petition that it was academic expressly on the basis that Parliament had enacted the Northern Ireland (Executive Formation) Act 2019. That remained the position advanced by the respondent. The relevant plea-in-law had been adjusted by the respondent in order to ‘mirror’ the adjustment of the petitioners’ claim from the denial of ‘further’ time for consideration to the denial of ‘sufficient’ time for ‘proper’ consideration. Thus, it was submitted that the pleadings were not misleading, particularly bearing in mind the very unusual context of the application, which concerned political decision-making at the top of Government in fast-moving and controversial areas. In those circumstances, it was suggested that the Government could not be expected to provide some kind of ‘commentary’ or ‘steady flow’ of information about intentions as to when particular political decisions were going to be advised or taken.

71. The court had evidence if it wished to scrutinise it, albeit that an Affidavit covering the relevant material had not been produced. It was not a universal practice in Scotland to produce Affidavits in judicial review proceedings. Nonetheless, if it would be of assistance, no doubt the respondent could obtain an Affidavit which would explain what the relevant documents were. The Affidavits of the first petitioner expressed her own views, and were entitled to respect, but amounted to untested evidence in areas in dispute and were not accepted as establishing any facts. The timing and value of the latest Affidavit produced only today (Friday) was also questionable and the respondent was inclined to invite the court not to have regard to it for the same reasons. The view of one MP, without intending any disparagement, did not take the court anywhere with respect to whether or not to grant interim relief and, insofar as it related to parliamentary proceedings, was covered by parliamentary privilege and not something with which the court ought to concern itself.

72. The suggestion that Parliament could pass some other Bill during the period before prorogation was anticipated on Monday was ‘completely unrealistic’. It would take at least four days for any Bill to proceed through Parliament. The current Bill was the result of extensive discussions over the summer in order to reach agreement, and the idea that there could suddenly be further amendment was nonsensical. Even if prorogation was done for political advantage, it did not insulate the respondent from challenge where the power was used in a way that was unconstitutional. The petitioners were not seeking any mandatory order as to when Parliament should sit, simply the quashing of the present order. The matter would then go back to the decision-maker, if so advised, to make such decision as would be lawful and constitutional. That simply allowed for the possibility that Parliament could sit, if it so wished. The applicable standard was clearly that of rationality. The respondent’s position seemed to imply acceptance that an ‘excessive’ use of prorogation would be justiciable precisely because it removes political accountability. If that were accepted, then the issue became whether or not the exercise of the power in the present circumstances, at the present period, for the particular dates, was a reasonable exercise for good, proper and sufficient reasons, and not for improper purposes or to an unconstitutional effect, to the satisfaction of the court according to standard judicial review techniques.

Interim remedies

73. The petitioners sought the grant of interim remedies from the conclusion of the summar roll hearing in order to maintain the status quo pending the issue of final judgment in the reclaiming motion. The petitioners submitted that they had demonstrated a sufficient prima facie case and that the balance of convenience favoured the court pronouncing suspension ad interim and, if necessary in order to ensure the respondent’s understanding of the rule of law, interdict ad interim from acting on the prorogation order whilst the case remained at avizandum. It was suggested that such orders would relieve the court of any pressure to come out with a decision in advance of Parliament being prorogued, as anticipated, on Monday 9 September.

74. The normal effect of prorogation was that all pending legislation would fall, and would have to start again in such time remained available thereafter. Hence, the balance of convenience strongly favoured the petitioners against the current background of Parliament’s attempts to take control of its own business as against the Executive seeking to do everything that it could to stop the currently pending legislation from being passed, including threats not to put it forward for Royal Assent. In that event, remedies existed to require Ministers to put it forward for Royal Assent, but there was a danger that all work done thus far would be lost when the pending legislation fell. Whilst the petitioners had been advised that an undertaking had been given by the current Leader of the House of Commons that Parliament would not be suspended until Royal Assent had been given to the currently pending Bill, that had to be viewed in the context of the Government having treated constitutional conventions and truth telling and staying by its word to Parliament ‘with contempt’. The Prime Minister had clearly decided to prorogue Parliament for the dates mentioned as at 15 August, and thereafter ‘flatly denied’ any such plan to Parliament and to the public. Whilst there may be a strong presumption that, if the petitioners were successful, the prorogation order would be null and void ab initio, there was English authority that confused the matter and the petitioners sought to avoid further legal uncertainty. Thus, suspension ad interim would allow parliamentarians to continue to sit and carry out their role.

75. On the second day of the hearing of the reclaiming motion, the petitioners produced a further Affidavit with material collated overnight sworn by the first petitioner, in order to assist in relation to the ‘fast moving situation’ and substantiate the petitioners’ application in respect of interim orders.

76. The respondent submitted that there was no prima facie case and that the balance of convenience did not favour the grant of any such orders. The court ought to bear in mind the events that had taken place in Parliament in terms of which Parliament had itself taken steps to avoid a ‘no deal’ Brexit from taking place without a further vote upon it. Secondly, the Divisional Court in London had refused the application in the related case of Miller with reasons to follow. It was for the court to decide how far it wished to place any weight on that matter but it was submitted to be a material factor relevant to the balance of convenience if the court reached that stage. For completeness, however, interim relief was not sought in the Miller application.

77. At the conclusion of the second day of the hearing of the reclaiming motion, the court declined to make any interim orders.

Conclusion of proceedings

78. At the conclusion of proceedings, the court indicated that it had ‘some extremely difficult issues’ to resolve, and would therefore take some time to consider matters.

79. The court hoped to advise its decision on Wednesday 11 September 2019. Whether or not the decision would be in complete written form on that date was uncertain, but it would be made available shortly thereafter in order to enable the UK Supreme Court to consider the matter, on the assumption that leave was granted for that purpose. It was understood that the courts in England were likely to follow that course.

The court made avizandum.