Brexit challenge in the Court of Session: petition refused

Lord Doherty has refused the petitioners’ application in Cherry v Advocate General for Scotland. In an oral judgment, he ruled that the advice given in relation to Prorogation was a matter involving ‘high policy’ and a political judgment that could not be measured by legal standards. He said that accountability for the advice was to Parliament and, ultimately, the electorate – not to the courts. Nor did he accept that Prorogation contravened the rule of law, or that it was justiciable because of that. The power to prorogue was a prerogative power and it was within the Prime Minister’s powers to advise the Sovereign as to its exercise. The Executive was accountable to Parliament and to the electorate for that advice. Further, Parliament was the master of its own proceedings, rules and privileges, and had exclusive control over its own affairs. It was for Parliament to decide when it would sit, and it was not for the courts to devise further restraints which went beyond the limits that Parliament had chosen to provide.

The Scottish Council of Law Reporting has published a note of the oral judgment, here (on which the above is based): the full judgment is here: Joanna Cherry QC MP and Others for Judicial Review [2019] ScotCS CSOH 68.

The Scottish Council of Law Reporting further reported that, at a brief hearing before Lord Malcolm, the court granted urgent disposal of the petitioners’ reclaiming motion (appeal) to take place tomorrow, 5 September at 9.30 am.

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