Brexit challenge in the Court of Session: interim interdict refused

The BBC reports from the Court of Session that Lord Doherty has refused interim interdict in the petition against the Prime Minister’s proposed proroguation of Parliament. Michael Gray, a law student at Edinburgh University, tweeted from the hearing this morning in Cherry v Advocate General for Scotland and the following is compiled largely from his tweets – which we gratefully acknowledge:

Lord Doherty explained that the petitioners sought interim interdict against UK ministers proroguing Parliament. The scheduled hearing on 6 September had been ‘overtaken by events’, in the form of the Order in Council to prorogue Parliament “no earlier than Monday 9th September and no later than Thursday 12th September 2019”. The Order in Council had led to the request for interim interdict. He said that the essence of petitioners’ argument was that the advice given to Her Majesty had been illegal and unconstitutional and that that issue was justiciable. On behalf of the petitioners, Aidan O’Neill QC had moved for interim orders and the issue had been considered overnight. Mr O’Neill had also argued that the Prime Minister should lodge a signed affidavit with the court setting out his reasons for wanting to prorogue Parliament.

His Lordship was not satisfied that there was a cogent need for interim interdict to be granted at this stage and the petitioners’ request was rejected: however, the substantive hearing should be moved forward to Tuesday or Wednesday next week, allowing for an appeal, if necessary before 9 September.

He refused to decide whether or not the petitioners had a prima facie case: it was preferable to wait until the full hearing and wise not to say any more than was strictly necessary.

The substantive hearing was set for Tuesday: it was in the interest of justice and in the public interest to proceed sooner rather than later.

The Scottish Council of Law Reporting subsequently posted a summary of the judgment: Lord Doherty’s conclusions were as follows:

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

(1) the Court had a broad discretion when considering motions for interim orders, and required to determine whether there was a cogent need for interim orders to be made;

(2) having regard to the fact that a substantive hearing was due to take place on 6 September 2019, a date before Parliament will be prorogued, there was no cogent need for interim orders at this time;

(3) in any event, the balance of convenience did not favour the granting of interim orders;

(4) it was not appropriate for the court to express any view on whether the petitioners had a prima facie case, where a substantive hearing is due to be heard shortly and at which full argument would be made;

(5) if the petitioners were right that the advice of the Prime Minister was unlawful, appropriate remedies could be granted by the court after the substantive hearing; and

(6) it was in the interests of justice, and the public interest, that the substantive hearing be accelerated.”

  • There is a summary of the oral submissions at yesterday’s hearing, also prepared by the Scottish Council of Law Reporting, here.
  • There is a helpful report on Scottish Legal News, here.
Cite this article as: Frank Cranmer, "Brexit challenge in the Court of Session: interim interdict refused" in Law & Religion UK, 30 August 2019,

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