Brexit: Court of Session declares advice to prorogue Parliament unlawful

The First Division of the Inner House of the Court of Session (The Lord President, Lord Brodie and Lord Drummond Young) has allowed the petitioners’ reclaiming motion in Cherry v Advocate General for Scotland, concluding unanimously that it would “make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect”.

Following is the official summary of the Opinion:

“The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union (Brexit).

A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October.

The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.

The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of proroguing Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law.

The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.

It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no-deal Brexit without further Parliamentary interference.

Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action.

The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.”

The above summary does not form part of the reasons for the decision; the full opinion of the court is now available here.

Comment: The Supreme Court has stated that  it will hear the Brexit-related judicial review case(s) from 10:30 on 17 September 2019 in Courtroom 1. These will be heard by: Lady Hale, PSC; Lord Reed, DPSC; Lord Kerr; Lord Wilson; Lord Carnwath; Lord Hodge; Lady Black; Lord Lloyd-Jones; Lady Arden; Lord Kitchin; and Lord Sales.

The possibility of a recall of Parliament during the current Prorogation is a matter for an initiative by the Prime Minister.

[Updated, 14:00, 13th September 2019]

Cite this article as: Frank Cranmer, "Brexit: Court of Session declares advice to prorogue Parliament unlawful" in Law & Religion UK, 11 September 2019, https://lawandreligionuk.com/2019/09/11/brexit-court-of-session-declares-advice-to-prorogue-parliament-unlawful/

4 thoughts on “Brexit: Court of Session declares advice to prorogue Parliament unlawful

  1. Not being a lawyer, I take it that Her Majesty’s Order in Council cannot be illegal, however disingenuous the advice given. If a Court of competent jurisdiction finds the Monarch has been given erroneous advice, for whatever the motive, she may be pleased to revoke the Order. The Court would not presume to declare the Order itself unlawful, only its procurement.

    • That – for what it’s worth – would be my view as well. But it’s the subject of intense debate by constitutional law specialists (of whom I’m not one).

      • The Scottish Court found the prorogation itself to be Null and Void because of their finding that the prorogation was obtained unlawfully. What gets me about all these cases and the ‘stop the coup’ rhetoric is that had Parliament wanted to it could have passed a simple one clause Act overruling the prorogation but it chose not to do preferring childish demos in the House of Commons itself

  2. PS My own views on the legality of the prorogation are best summed up by quoting Talleyrand ‘It was worse than a crime it was a mistake’

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