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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CHERRY, RECLAIMING MOTION BY JOANNA CHERRY QC MP AND OTHERS AGAINST THE ADVOCATE GENERAL [2019] ScotCS CSIH_49 (11 September 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_49.html
Cite as: 2019 SLT 1097, [2019] CSIH 49, 2019 SCLR 986, 2020 SC 37, [2019] ScotCS CSIH_49, 2019 GWD 29-458
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Drummond Young
[2019] CSIH 49
P680/19
OPINION OF LORD CARLOWAY, THE LORD PRESIDENT
in the reclaiming motion by
JOANNA CHERRY QC MP and OTHERS
against
Petitioners and Reclaimers
THE ADVOCATE GENERAL
Respondent
______________
Petitioners: O’Neill QC, Welsh; Balfour + Manson LLP
Respondent: Johnston QC, Webster QC; Office of the Advocate General
Intervener (the Lord Advocate): Mure QC, C O’Neill (sol adv); Scottish Government Legal Directorate
Applicants (the BBC and others): McBrearty QC; Burness Paull
11 September 2019
Introduction
[1] This reclaiming motion (appeal) raises an issue of when the prorogation of the
United Kingdom Parliament by an Order in Council, at the instance of Her Majesty the
Queen on the advice of the UK Government, can be the subject of a judicial review. There
are two central questions. The first, as a matter of law, is whether the prorogation can be
judicially reviewed in circumstances in which it is alleged that it has been requested for
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what is said to be an improper motive viz. the stymying of Parliamentary debate on the issue
of the UK leaving the European Union. The second, as a matter of fact, is whether that
improper motive has been demonstrated. The Government contends that the purpose is
legitimate and is simply to prepare for a new legislative programme, to be contained in HM
the Queen’s speech on 14 October, and to cover the period of the party conferences, during
which time Parliament tends to be in recess.
[2] There are subsidiary questions. The first concerns access by the press to documents
in the court process, including certain UK Government papers which have been produced
by the respondent in obedience of the duty of candour in such matters. The second is
whether the court should call for unredacted copies of these documents.
Background
[3] Prorogation of Parliament is the means by which the Government, by the exercise of
a prerogative power, can bring a Parliamentary session to an end. While Parliament is
prorogued, members cannot “debate government policy and legislation, submit
parliamentary questions for response by government departments, scrutinise government
activity through parliamentary committees or introduce legislation of their own” (House of
Commons Library Briefing Paper no 8589: Prorogation of Parliament, 11 June 2019 p 3). The
typical duration of a prorogation in recent times has been “very short”. Since the 1980s, it
has rarely lasted longer than two weeks and, between sessions, it has been less than a week
(ibid pp 3-4).
[4] On 29 March 2017, following upon the authorisation which was provided by
section 1 of the European Union (Notification of Withdrawal) Act 2017, the former Prime
Minister (The Rt Hon Theresa May MP) wrote to the President of the European Council
3
notifying the EU that, in terms of Article 50 of the Treaty on European Union, the UK
intended to withdraw from the EU. In terms of the article, this would take effect on 29
March 2019. The European Union (Withdrawal) Act 2018 provides (s 1) that, on “exit day”,
the European Communities Act 1972 ceases to have effect, but (s 2) EU law is to be
preserved within the domestic regime.
[5] On 21 March 2019, following two rejections by the House of Commons of a
withdrawal agreement in terms of Article 50, the Government and the European Council
agreed to extend the UK’s membership until 22 May, if the withdrawal agreement was
approved by Parliament. Otherwise, the UK would cease to be a member on 12 April 2019.
On 29 March, the withdrawal agreement was again rejected. On 10 April, a further
extension to 31 October was agreed. On 24 May, the then PM resigned. On 24 July, The Rt
Hon Boris Johnson MP was appointed in her place.
[6] On the same day, the Northern Ireland (Executive Formation etc) Act 2019 received
Royal Assent. This provides (s 3) for reports on progress towards forming an Executive to
be published before 4 September 2019 and thereafter laid before Parliament. Specific
provision is made for the situation in which Parliament would stand prorogued or
adjourned at the relevant time. In that event, a proclamation under the Meeting of
Parliament Act 1797 would require Parliament to meet for several days after the date on
which the report was laid.
[7] The prospect of prorogation in the context of the Parliamentary procedures involving
the UK’s withdrawal from the EU (commonly called “Brexit”) was first ventilated in the
House of Commons as early as March 2019 as a method of circumventing the rule that the
withdrawal agreement could not be the subject of a third vote during the same
Parliamentary session. Prorogation, with the intention of preventing Parliament from
4
blocking a “no deal Brexit”, was suggested in a paper by Policy Exchange on 25 March 2019.
The idea is that, because the default position under Article 50 is that the UK will leave the
EU with “no deal”, if none is reached by 31 October, Parliament will be unable to prevent a
no deal Brexit if the time elapses with no further parliamentary action. This was covered in
an article in the Daily Telegraph and was thereafter the subject of academic discussion.
During the Conservative Party leadership contest, following upon the former PM’s
resignation, there was occasional reference to this possibility.
[8] The petition was lodged on 30 July 2019 although the first orders were only made on
31 July 2019. The first plea-in-law is for declarator that it is ultra vires and unconstitutional
for the Government to advise the Queen to prorogue Parliament with the intention of
preventing sufficient time for proper consideration of Brexit. The second plea-in-law is for
interdict on the basis that the petitioners are reasonably apprehensive that the Government
intend to proceed in that manner. The respondent’s fifth plea-in-law is that there is no basis
for such an apprehension.
The Respondent’s Documents
[9] On the eve of the hearing before the Lord Ordinary, the respondent produced a
number of documents relative to what happened within the Government. The first is a
Memorandum dated 15 August 2019 from Nikki Da Costa, the Director of Legislative Affairs
within the PM’s Office, to the PM. This reads as follows:
“ENDING THE SESSION
SUMMARY
1. The current session is the longest since records began, and all bills announced as part
of the last Queen’s Speech have now received Royal Assent, or are paused awaiting
carry over into the next session: this makes it increasingly difficult to fill
parliamentary time with anything other than general debates. As a new Prime
5
Minister, there is an expectation that you will set out a refreshed domestic
programme and it would be natural to do so when the House returns in the autumn.
2. As the first week’s business in September has already been announced, I recommend
dedicating the second to wash-up on bills such as R&R [Restoration and Renewals].
We would then prorogue sometime between the end of Monday 9th September and
Thursday 12th September, allowing for the long-standing conference recess, and
return on Monday 14th October with the State Opening of Parliament.
3. [REDACTED]
RECOMMENDATION
2. (sic). Are you content for your PPS to approach the Palace with a request for
prorogation to begin with the period Monday 9th September and Thursday 12th
September, and for a Queen’s Speech on Monday 14th October?”
[10] The memorandum outlines certain practical considerations. Choosing when to end
the Parliamentary session was a balance between having enough time for the completion of
Bills which were close to Royal Assent and not wasting time that could be used for new
measures in the fresh session. The recommendation was to close the session in early
September. The memorandum continues:
“POLITICAL CONSIDERATIONS
14. Finally, politically it is essential that parliament is sitting before and after EU
Council – MPs and Peers must be in a position to consider what is negotiated, and
hopefully pass the Withdrawal Agreement Bill. If there is no deal, they need to have
an opportunity to hear what you have to say, and respond accordingly.”
[11] The memorandum noted that, in modern times, prorogation was usually less than
10 days, although there were longer periods for up to 21 days since 1980. Although the
planned prorogation would be 34 days, the expected conference recess of three weeks would
mean that only one to three days would be lost in the week commencing 9 September and
four in the week commencing 7 October. There was no record of the House of Commons
sitting in late September or early October since the start of the 20th Century.
6
[12] The recommendation to prorogue was endorsed (presumably by the PM) with the
word “yes” and a tick. The second document is a redacted (although later leaked to the
press in unredacted form) hand-written response from the PM, dated 16 August. It reads:
“1. The whole September session is a rigmarole introduced [REDACTED] to show the public
that MPs were earning their crust
2. So I don’t see anything especially shocking about this proposition
3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost
are actually very few”.
[13] The third document is a further memorandum, dated 23 August 2019, from Ms
Da Costa to the PM. This is headed “ANNOUNCING THE QUEEN’S SPEECH”. It briefs
the PM on a proposed “handling plan”. It refers to the PM’s agreement to approach HM the
Queen with a request to prorogue Parliament within the period Monday, 9 to Thursday,
12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between
the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to
be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses of
Commons and Lords were to go to Balmoral to form the necessary meeting of the Privy
Council. After the signing, the members of the Cabinet would be informed, followed by the
Parliamentary Party and the press. The planned announcement to the Cabinet was to focus
on the extraordinary length of the current parliamentary session. A statement would be
made that this could not continue and that the PM would bring forward a new legislative
agenda which would take matters “through our exit from the EU and the months that
follow”. At the heart of the agenda would be the Government’s “number one legislative
priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be
introduced to “move at pace to secure its passage before 31 October”. The PM would
confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He
7
would deliver a statement and take questions on the “first sitting back” (presumably
14 October). A draft letter to Conservative MPs was provided. This re-iterated the message
to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday,
9 September and that thereafter the Government would “begin preparation to end the
Parliamentary session ahead of a Queen’s Speech”.
[14] On Wednesday, 28 August 2019, the three Privy Counsellors attended at Balmoral.
HM the Queen promulgated an Order in Council in the following terms:
“It is this day ordered by Her Majesty in Council that the Parliament be prorogued
on a day no earlier than Monday the 9th day of September and no later than
Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to
be then holden for the despatch of divers urgent and important affairs, and that the
Right Honourable the Lord High Chancellor of Great Britain do cause a Commission
to be prepared and issued in the usual manner for proroguing the Parliament
accordingly.”
[15] The fourth document is a redacted Cabinet minute dated 28 August 2019. This
records that the PM provided the Cabinet with the proposed dates for prorogation and the
Queen’s Speech. He said:
“This timetable gave Parliament ample time to debate Brexit in the period before the
October European Council on 17-18 October, and again in the run up to the UK’s
departure date on 31 October. It was important to emphasise that this decision to
prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations: it
was about pursuing an exciting and dynamic legislative programme to take forward
the Government’s agenda.”
The minute records that the following points were made in discussion:
“b) any messaging should emphasise that the plan for a Queen’s Speech was not
intended to reduce parliamentary scrutiny or minimise Parliament’s opportunity to
make clear its views on Brexit. Parliament had already had a significant opportunity
to debate Brexit and would still have remaining parliamentary time to do so before
31 October. Likewise, it was crucial that parliamentary colleagues understood that
the Government was still seeking a deal and that this plan would allow time for the
Withdrawal Agreement to be approved by Parliament if a deal was agreed at the
European Council on 17/18 October. Therefore, any suggestion that Government
was using this as a tactic to frustrate Parliament should be rebutted;
8
c) the number of sitting days had not been substantially reduced, because for
the majority of the time that Parliament would be prorogued it would ordinarily be
Recess for party conferences. Until relatively recently Parliament did not sit in
September at all. Parliamentary colleagues should be made aware of this…;
d) the terrain between now and October would be rocky. Although there had
been longer periods of prorogation in the past, they were exceptional. Parliament
would not normally be prorogued for a longer period than one to two weeks. It
should be explained why in this case the period was significantly longer. The
Government would be attacked for this decision, but it would be manageable;…”.
[16] The PM responded:
“… it was vital to persuade and enthuse parliamentary colleagues to get behind the
Government’s plan. The EU were likely to hold out for Parliament to block Brexit
while they thought that was possible. The UK would only be able to negotiate a
better deal by showing the EU: a united front, including in Parliament. Two
messages had landed with the EU: that the UK wanted a deal and was prepared to
work hard to get one; but also that the Government was prepared to leave without
one if necessary. There had been absolute clarity with the EU about the aspects of
the current Withdrawal Agreement that were unacceptable. The backstop was
fundamentally undemocratic. It bound the UK into EU laws over which it had no
say and tilted the balance of the Good Friday Agreement away from the UK by
giving Dublin a greater say over matters in Northern Ireland.”
Concluding, the PM said:
“Progress with the EU should not be exaggerated, but it was substantial. Whilst
there was a good chance that a deal could be secured, there was also a high chance
that it could not. Success would require a united and determined approach.
Everyone joining the Government had done so on the understanding that the UK
might have to leave the EU without a deal. There were no plans for an early General
Election. This would not be right for the British people: they had faced an awful lot
of electoral events in recent years. They wanted the Government to deliver Brexit
and a strong domestic agenda.”
[17] On the same day, the PM wrote to Conservative MPs along similar lines.
Lord Ordinary’s Decision
[18] The Lord Ordinary refused the prayer of the petition for the principal reason that the
provision of advice to the Queen on the prorogation of Parliament was not justiciable. The
exercise of some prerogative powers in some circumstances was justiciable, but in others it
9
was not. The power to advise the Queen in relation to the decision to prorogue Parliament
was a political one. Its exercise could not be measured against legal standards. The
accountability for the advice was to Parliament and, ultimately, the electorate, and not to the
courts. The advice did not contravene the rule of law. It followed from the separation of
powers that the courts would not interfere with Parliament’s decisions on when to sit. It
was not for the courts to devise restraints on prorogation beyond the limits which
Parliament had set. Parliament could sit before and after the prorogation. It had recently,
in the NIEFA 2019, provided for periods in which to do so.
[19] If the matter was justiciable, the Lord Ordinary was not persuaded that the reasons
for the advice as disclosed in the documents provided by the respondent were unlawful.
There had been no breach of the provision in the Claim of Right 1689 that “Parliaments be
frequently called and allowed to sit”. The Claim of Right 1689 gave rise to no justiciable
issue, but in any event there had been no breach. The Lord Ordinary was not persuaded by
the respondent’s argument that the issue raised by the petition was academic.
[20] The petition was concerned with prorogation, not with the legal requirements for
Brexit. The fact that Parliament may not be sitting for five weeks did not of itself have any
direct effect on individuals’ EU law rights. The Lord Ordinary agreed with the respondent’s
subsequent legislation. It would not be unlawful for the UK to leave the EU with no deal
unless there was further legislation. Withdrawal from the EU had been approved by
Parliament unconditionally (European Union (Notification of Withdrawal) Act 2017, s 1(1)).
Preliminary Matters
[21] In limine, the petitioners moved for an order for the production of unredacted
10
versions of the four documents produced by the respondent (supra). The redactions
purported to have been made on the basis of irrelevance, legal privilege and the Law
Officers’ advice convention. The petitioners did not know whether these redactions had
been properly made. No claim of public interest immunity had been advanced. It was a
breach of the right to a fair trial for the respondent to produce redacted documents. Once
the documents had been produced, any privilege had been waived (Scottish Lion Insurance
override an objection by the Government to the production of documents based on public
[22] The BBC, the Times and the Sun made an application for access to the four
documents produced by the respondent, the pleadings and the written arguments for the
Lord Advocate and the respondent. This was on the basis of the principle of open justice
way in which the courts decided cases. The public had to be able to understand why
decisions had been taken. It was difficult, if not impossible, to know what was going on
without the written material. The court required to carry out a fact specific balancing
exercise involving the principle of open justice on the one hand and the risk of harm to the
judicial process or the legitimate interests of others on the other hand. The principle of open
justice applied equally in Scotland (A v Secretary of State for the Home Department 2014 SC
[23] The respondent opposed the application for production of unredacted versions of the
documents. These had been produced in response to the duty of candour which rested
11
upon the Government. They were available quantum valeat; the respondent’s position
remaining the lack of justiciability of the issue. The reclaiming motion ought to be
determined on the basis of the documents which had been produced to the Lord Ordinary.
Although the petitioners had opposed the lodging of the documents, they had not asked the
Lord Ordinary to order production of unredacted versions. The court could not determine
whether unredacted versions should be produced without looking at these versions or
appointing a commissioner to do so. Counsel had seen the unredacted versions and could
state, on his professional responsibility, that the redactions had been properly made.
[24] RCS 4.11 provides that any person having an interest may inspect a writ lodged with
the court. A writ includes a petition and answers (RCS 1.3). There is no difficulty in the
press having access to the pleadings. At the start of the proceedings, therefore, the court
provided these, including the Lord Advocate’s written intervention, to the press. It is
common practice for the press to have access to the pleadings at the stage of any final
hearing. That is not to say that publication of their contents will thereby be privileged
[25] In relation to the written notes of argument in a reclaiming motion, these are lodged
in accordance with the timetable in RCS 38.13(2)(c). In terms of the Practice Note (No 3 of
2011, para 86), they are intended to be a “concise summary of the submissions to be
developed”. They, or parts of them, are routinely adopted by the party at the start of the
oral argument, but not always covered in that argument. They still form part of the
submission to the court. They will often assist the press in understanding the core elements
of a party’s cause. In the absence of special circumstances, they too will be open for
inspection. Parties may, in accordance with past practice, assist in facilitating access to those
documents by the press. The court will continue to do so.
12
[26] In a reclaiming motion, it is normal for the court to proceed on the basis of the same
documents as were provided to the Lord Ordinary (Scotch Whisky Association v Lord Advocate
2017 SC 465, LP (Carloway), delivering the opinion of the court, at para [109]), although it
can look at new material if it is satisfied that it is in the interests of justice to do so. Even in a
case of urgency, as the present proceedings undoubtedly are, the court would not expect to
be considering an application of this nature, which could have been made to the Lord
Ordinary, at the stage of the Summar Roll hearing. It would normally require a formal
application for a commission and diligence and then scrutiny of the documents by the Lord
Ordinary to determine whether the redactions are justified on the bases proffered (Somerville
v Scottish Ministers (supra), Lord Rodger at para [155]). In that context, the court can, of
course, override any objections from the Government based upon public interest
considerations. It could reject the assurance by counsel that the material had been properly
excluded for the reasons stated. The test is whether “production of the full version of the
document to the petitioners is necessary for disposing fairly of the proceedings” (ibid para
[156]).
[27] The court is not satisfied that this test has been met. The redactions appear to be
justified on the bases stated. The court sees no reason not to accept the assurance given by
counsel. It is certainly borne out by the leaking, following the Summar Roll hearing, of the
redacted part of the PM’s handwritten note. It is satisfied that the relevant parts of the
material have been properly disclosed in terms of the obligation of candour. It will therefore
refuse the application for production of unredacted versions given both the timing of the
application and the absence of any need for this to be done in order to decide the issues
fairly. The redacted versions will be available to the press.
13
Submissions
Petitioners
[28] The petitioners sought a declarator in terms of the petition, together with an order
reducing the Order in Council and an interdict prohibiting the Government from
proroguing Parliament. Scots and English law were not necessarily the same as regards the
difference, the law that was more limiting of executive power should be preferred.
at paras [9] and [126]). The Government had no inherent power to legislate. The
prerogative encompassed the residual powers which Parliament had left vested in the
Government. It remained only where the situation was not covered by statute (Burmah Oil
there was a corresponding power conferred by statute (Attorney General v De Keyser’s Royal
Hotel Ltd [1920] AC 508 at 526). It could not be used to defeat rights which had been created
by Parliament (R (Miller) v Secretary of State for Exiting the European Union (supra), paras [44],
[45] and [63]).
[29] The Government was politically accountable to Parliament in the exercise of its
powers. The Government would be acting unlawfully if it curtailed political accountability
relationship between the executive and the courts was one of respect. The Government’s
political accountability to Parliament and its legal accountability to the courts were not
para [57]). The Government had to obey the law as declared by the courts (Edwards v
Cruickshank (1840) 3 D 282 at 306-7, endorsed in R (Bancoult) v Secretary of State for Foreign and
14
Commonwealth Affairs [2009] 1 AC 453 at para [106]). This protected the individual from
arbitrary government (Wightman v Secretary of State for Exiting the European Union
2019 SC 111 at para [67]). The rule of law, as enforced by the courts, was the ultimate control
upon which the constitution was based (R (Jackson) v Attorney General (supra) at para [107]).
The court had to provide an effective remedy against constitutional violations (Teh Cheng
could enforce the law by interdict and contempt proceedings (Beggs v Scottish Ministers
at para [9]). The Lord Ordinary had abrogated his constitutional function in
determining that, in relation to prorogation, the Government was above the law. The court
was the only umpire available to ensure a balance of power. Parliament had no power to
stop itself being suspended. If the Lord Ordinary was right and the court had no power, the
only option to prevent tyranny would be to “take to the street”.
[30] Scottish constitutional law involved the subordination of Government to the law.
This could be traced back to Buchanan’s De jure regni apud Scotos (1567). The power of the
sovereign was, by immemorial tradition, restricted by the laws and customs of the people.
This was different from England. The two approaches were reflected in the reformations in
each country and the approach to the appointment of the clergy. The kings of Scotland had
no prerogative distinct from supremacy above the law (Rutherford: Rex Lex (1660) question
XLIII).
[31] The Claim of Right 1689 (affirmed by the Act of the Scottish Parliament of 1703: APS
xi 104, c. 3) set limitations on the sovereign’s power. That power could not be used to
contravene the law. Parliaments had to be called frequently and allowed to sit in order to
redress grievances and to amend, strengthen and preserve the law. Although the court
could not enter into forbidden areas such as foreign policy, decisions or inaction could be
15
reviewed if they were irrational (cf R (Sandiford) v Secretary of State for Foreign Affairs
[2014] 1 WLR 2697 at paras [50], [52] and [65]). Certain prerogative powers, including (at that time)
the dissolution of Parliament, were not justiciable, but others may be (Council of Civil Service
for the Home Department, ex p Bentley [1994] QB 349 and R v Secretary of State for foreign and
Commonwealth Affairs, ex p Everett [1989] QB 811). The power to prorogue Parliament was
accordingly justiciable and reviewable on grounds of irrationality and other judicial review
principles (R (Sandiford) v Foreign Secretary (supra)). It was at least not unfettered. The
Government could not use the prerogative to effect individuals (Attorney General v De
Keyser’s Royal Hotel (supra) at 567-8). The power was lawfully exercised only if it was
consistent with constitutional principle. It had to be exercised for a proper purpose.
Prorogation was subject to the ordinary principles of legality, rationality and procedural
impropriety as with other Governmental action (R (Bancoult) v Secretary of State for Foreign
and Commonwealth Affairs (supra) at paras [35], [105], [122] and [141]).
[32] The Government was obliged to “co-operate and to make candid disclosure, by way
of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous
documents which have been disclosed) the reasoning behind the decision challenged in the
judicial review proceedings” (Belize Alliance of Conservation Non-Governmental Organisations v
Home Department [2010] EWCA Civ 727 at para [55]). A full and accurate explanation of the
facts was required (R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth
Affairs [2002] EWCA Civ 1409 at para [50]). The respondent had no pleadings on the matter.
At the same time, as the respondent had pled that the petitioners had no reasonable
16
apprehension that the Government intended to prorogue Parliament with the intention of
denying sufficient time for debate, the Government was in fact doing precisely that.
Adverse inferences should be drawn concerning the veracity of the reasons for prorogation
advanced in the documentation (R (Das) v Secretary of State for the Home Department
[2014] 1 WLR 3538 at para [80]. Anxious scrutiny of these reasons was required, given that
fundamental rights and the constitution were in issue (R v Ministry of Defence ex p. Smith
[53]). The power had been exercised “for an alien purpose or in a wholly unreasonable
Brexit. It was the “paramount duty” of the court to recognise this abuse of power (R v
Secretary of State for the Home Department ex p. Fire Brigades Union [1995] 2 AC 513 at 571E-F).
[33] Parliament was not given to passing legislation idly. An act, when in force, will have
prorogation was unlawful because it ran contrary to Parliamentary intention in passing
sections 9, 10 and 13 of the European Union (Withdrawal) Act 2018), which provide that
Parliament must have the time and opportunity to give effect to any withdrawal, deal or no
deal, and to respect the British-Irish Agreements of 1998 and 2007. It was only once
Parliament had passed the necessary statute that the Government had the authority to effect
the withdrawal. Only in this way would the constitution be maintained (AXA v Lord
Advocate 2012 SC (UKSC) 122 at 153. The prorogation was vitiated by an error of law as it
was predicated on the idea that the Government had the authority to create a no deal Brexit.
The Article 50 process required a partnership between the Government and Parliament.
Primary legislation was required to conclude the process (Wightman v Advocate General for
17
Scotland (supra) at para [54]). None of the existing provisions, whether express or by
authorised a no deal Brexit. Given that prorogation was aimed at facilitating a no deal
Brexit, which was unlawful in the absence of Parliamentary sanction, the prorogation itself
was unlawful.
[34] The petitioners moved for interim interdict preventing prorogation which was
scheduled for Monday 9 September 2019 on the basis that they had established a prima facie
case and the balance of convenience favoured its grant.
The Lord Advocate
[35] The Lord Advocate maintained that the Lord Ordinary had erred in concluding that
the prorogation was not justiciable. It was disproportionate to any justification advanced.
This was apt for judicial review on the basis of familiar standards and involved an
assessment of its impact on recognised legal interests. The question was always whether a
particular exercise of prerogative power was reviewable. For example, if it had been
procured by bribery, it would be. Although the Lord Ordinary had found that scrutiny of
the prorogation lay with Parliament and the electorate, it was in its nature that it deprived
Parliament, during the period of prorogation, from the ability to exercise accountability.
That was why the courts could not reject the challenge as per se not justiciable. The courts
had a responsibility, when circumstances required, to protect Parliament from an abuse of
Government power. If the prorogation had been until a date after 31 October 2019, the court
would have been entitled to scrutinise that decision closely because of the effect which it
would have on the principle of responsible government. It would have to ask whether,
18
having regard to its duration, the prorogation was rationally connected and proportionate to
the justification advanced.
[36] It was a cardinal principle of the constitution that the Government was accountable
to Parliament. This was no less fundamental than that of parliamentary sovereignty
(R (Miller) v Secretary of State for Exiting the European Union (supra) at para [249]). The courts
should not overlook the constitutional importance of ministerial accountability to
Parliament (ibid para [240]). The effect of the prorogation was to insulate the Government
entirely from any accountability to Parliament. Although the power to prorogue lay with
the PM, the lawfulness of the exercise of that power lay with the courts. Just as with the sole
question in R (Miller) v Secretary of State for Exiting the European Union (supra) at para [4]), the
question here was whether, as a matter of constitutional law, the prorogation, in the context
of the anticipated Brexit, was unlawful.
[37] Prerogative powers existed for the public benefit and not that of the executive (Sales:
Crown Powers, the Royal Prerogative and Fundamental Rights (c 4) in Wilberg and Elliot ed: The
Scope and Intensity of Substantive Review (2015)). The public interest was promoted by
allowing Parliament to carry out its role without let or hindrance. The courts had
jurisdiction to review an Order in Council made on the advice of the Government
(R (Barclay) v Lord Chancellor (No 2) (supra) at para [58]; R (Bancoult) v Secretary of State for
Foreign and Commonwealth Affairs (supra)). Just as the courts could control legislative action
to protect individual rights (AXA v Lord Advocate (supra) at paras [50]-[51], [153] and [169]),
so they should review Government action which undermines a fundamental constitutional
principle (Craig: Prorogation: Constitutional Principle and Law, Fact and Causation (Oxford
University Hub)).
19
[38] The decision to prorogue for five weeks was an abuse of power. It was
disproportionate to the declared purpose of paving the way for a Queen’s Speech. That
could be achieved by a prorogation of a few days. Just as there was a sliding scale, in which
the cogency of the justification required for interfering with a right will be proportionate to
its perceived importance and the extent of the interference (Pham v Secretary of State
[2015] 1 WLR 1591 at paras [105]-[106]), so there was a similar scale concerning justification for
executive action which interfered with a fundamental principle of the constitution; that of
responsible government.
Respondent
[39] The respondent’s primary submission was that the Lord Ordinary was correct in
deeming the issue to be not justiciable. There were no judicial or manageable standards by
which the courts could assess the lawfulness of ministerial advice to prorogue Parliament.
The issue was one of high policy and politics and not of law. Parliament could regulate its
own sittings by legislating in specific contexts. Prorogation was governed by constitutional
conventions which the courts did not enforce. Parliament had decided on what controls it
should impose on prorogation. There was nothing unconstitutional in the Government
acting within those limits. It would be unconstitutional for the courts to impose an
additional control. Only the sovereign could prorogue Parliament in exercise of the Royal
prerogative (Prorogation Act 1867 s 1). Parliament had expressly preserved the prorogation
prerogative except in specific contexts.
principle was longstanding. It was doubtful whether the tests of irrationality, impartiality or
fettering of discretion could be applied to the exercise of prerogative powers (Council of Civil
20
Service Unions v Minister for the Civil Service: re GCHQ (supra) at 411; Wheeler v Office of the
Affairs (supra)). Issues of high policy and political judgment were not ones with which the
courts were equipped to grapple or had the means to determine. Constitutional
arrangements, which involved the exercise of political judgment, permitted a flexible
could not be measured against public law standards. There was no measure by which the
court could determine the sufficiency of time for proper consideration of the Brexit issue.
[41] The court could not begin to rule on whether sufficient time was being afforded to
Parliament to debate a particular issue. That was a matter for Parliament to determine, as it
had done in setting the procedures under the NIEFA 2019. The petition was inviting the
court to go beyond what Parliament had already determined and to superimpose additional
requirements. That was an interference with the political and legislative processes and was
constitutionally inappropriate.
[42] There were wider political considerations, including the separation of powers, which
dictated that the courts would not interfere with Parliamentary proceedings, rules and
privileges. The courts and Parliament had to respect each other’s roles and jurisdictions
[13] and [17]). Parliament had control over its dissolution and prorogation. It had legislated
for the former and had done so for prorogation in certain circumstances (Succession to the
Crown Act 1707 s 5; Reserve Forces Act 1996 s 52(8); Civil Contingencies Act 2004 s 28;
NIEFA 2019 s 3). The exercise of a prerogative power was not immune from review, but this
depended upon the subject matter and the context of the power and the challenge (Council of
21
Civil Service Unions v Minister for the Civil Service: re GCHQ (supra) at 407 and 418; R v
Secretary of State for foreign and Commonwealth Affairs, ex p Everett (supra) at 820; R v Secretary
of State for the Home Department, ex p Bentley (supra) at 363). Matters of high policy, including
[43] Prorogation was governed by constitutional convention. There required to be a new
session of Parliament each year, although this was flexible. The existing session had lasted
for more than two years. Political conventions were not enforceable (R (Miller) v Secretary of
State for Exiting the European Union (supra) at [141]). They were not legal restrictions (see
Adegbenro v Akintola [1963] AC 614).
[44] The existence of prerogative powers was recognised in the same way in Scotland and
England. Their scope was the same (Burmah Oil Co (Burma Trading) Ltd v Lord Advocate
(supra). There was no difference in the law of parliamentary privilege (Adams v Guardian
Newspapers (supra) at para [13]). In both jurisdictions there were settled limits on the
circumstances in which it was appropriate for the court to grant an advisory declarator
(Wightman v Advocate General for Scotland (supra) at para [24] under reference to AXA v Lord
Advocate (supra) at para [170]. The issue of justiciability necessarily involved considerations
[45] Secondly, the issue was academic because, in terms of the NIEFA 2019, Parliament
would be sitting before 31 October 2019. In addition, the Order in Council meant that
Parliament would be sitting in both September and October. The petitioners’ complaint was
therefore restricted to the number of days available. It was not for the courts to determine
this.
22
[46] Thirdly, the petitioner’s claim was unsustainable on its merits. The complaints of
unconstitutional action were not matters of law (see Dicey: The Law of the Constitution (8th ed)
293). The Claim of Right 1689 set no mandatory periods during which Parliament had to sit
and nothing remotely sufficient to require the additional sittings beyond the NIEFA 2019. It
provided no legal standard to measure the lawfulness of the decision to prorogue at any
particular time or for any particular reason. It was for Parliament to decide whether the
provision in the Claim of Right was to be further defined as the English Parliament had
done in the Meeting of Parliament Act 1694 (applied to the UK Parliament by the Succession
of the Crown Act 1707). The Claim of Right did not require Parliament to be in permanent
session. There was nothing in the European Union (Withdrawal) Act 2018, the NIEFA 2019
or the Fixed-term Parliaments Act 2011 which would be frustrated by prorogation at any
time for any reason.
[47] HM the Queen in Parliament was sovereign in the sense that Parliament could enact
whatever it wished, subject to its own self-imposed restraints such as the European
Communities Act 1972 and the Human Rights Act 1998 (R (Jackson) v Attorney General (supra)
at para [159[). There was a distinction between enacted law and resolutions of either or both
Houses of Parliament; the latter having no legal effect. The Government and the courts had
to act in conformity with the will of Parliament as expressed in legislation. Neither the
courts nor the Government could act to undermine legislation, including provisions for
Brexit and the NIEFA 2019.
[48] There was no substance to the petitioners’ argument that a no deal Brexit required
authorisation by further primary legislation and thus parliamentary time. Withdrawal had
already been authorised by the European Union (Notification of Withdrawal) Act 2017.
Article 50 meant that Brexit would occur on the expiry of the relevant period with or
23
without a deal. If the petitioners were correct, they would cease to have a relevant
complaint. The provisions in the European Union (Withdrawal) Act 2018 were, in relation
to the withdrawal agreement then extant, spent. They had no application to a no deal Brexit.
[49] The considerations which the PM took into account in seeking a prorogation were
not justiciable. Nonetheless, in accordance with the duty of candour, the reasons were set
out in the documentation. They were lawful. The decision was taken having regard, inter
alia, to the fact that Parliament would be sitting extensively in the period leading up to
31 October 2019, having already made extensive legislative provision on the issue. The
decision was: (a) to enable the new Government to set out its legislative agenda in a Queen’s
Speech; (b) to end the extraordinarily long Parliamentary session in a practical way, having
regard to the traditional Parliamentary recess for party conferences; (c) based upon specific
political considerations referred to in the documents; and (d) to reflect the fact that the
timetable would afford time both before and after the Queen’s Speech to debate Brexit,
having regard to the European Council meeting on 17-18 October 2019.
Decision
[50] The decision under review, which seems to have been made by the Prime Minister
alone, is that to request HM the Queen to exercise her prerogative to prorogue Parliament.
A prerogative decision may be the subject of a judicial review (R (Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs [2009] 1 AC 453, Lord Rodger at para [106],
endorsing Edwards v Cruickshank (1840) 3 D 282, LP (Hope) at 306-7). Whether the issue is
ultimately justiciable will depend upon the subject matter (Council of Civil Service Unions v
Minister for the Civil Service: re GCHQ [1985] AC 374, Lord Scarman at 411, Lord Roskill at
418). As a generality, decisions which are made on the basis of legitimate political
24
is not possible to apply to such decisions the public law tests of reasonableness (Council of
Civil Service Unions v Minister for the Civil Service: re GCHQ (supra) Lord Diplock at 411),
[21] and [22]) or fettering of discretion (R (Sandiford) v Secretary of State for Foreign Affairs
[2014] 1 WLR 2697). In this case, if the challenge was based upon these judicial review
considerations or similar matters, it would not be justiciable. If the reasons for the decision
were based upon legitimate political considerations, including a desire to see that Brexit
occurs, they would not be challengeable. However, that is not the contention.
[51] The contention is that the reasons which have been proffered by the PM in public (to
prepare for a new legislative programme and to cover the period of the party conferences)
are not the true ones. The real reason, it is said, is to stymie Parliamentary scrutiny of
Government action. Since such scrutiny is a central pillar of the good governance principle
which is enshrined in the constitution, the decision cannot be seen as a matter of high policy
or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be
true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of
any speciality of Scots constitutional law, it follows from the application of the common law,
informed by applying “the principles of democracy and the rule of law” (Moohan v Lord
Advocate 2015 SC (UKSC) 1, Lord Hodge at para [35]). The terms of the Claim of Right are
not breached simply because Parliament does not sit for a month or so. Parliament has,
throughout the year, been allowed to sit.
[52] There is some force in the contention that the court should leave it to Parliament to
decide whether to challenge the prorogation. Parliament could, if there were time to do so,
25
enact legislation which would have the effect of removing the prorogation before it began. It
has not done that in the days which were available. In practical terms, this is not surprising
given the intensity of the political debate in recent times; in particular the moves by the
opposition parties and some Conservative MPs to enact a Bill designed to prevent a no deal
Brexit (European Union (Withdrawal) (No 6) Bill which, on 9 September 2019, became the
European Union (Withdrawal) (No 2) Act 2019). This requires the PM to seek an extension
to the Article 50 exit date for a further four months to 31 January 2020 if no withdrawal
agreement is secured by 19 October 2019. Because the prorogation goes to the root of
Parliament’s ability to sit, and thus prevents Parliament from performing its central role in
scrutinising Government action, the court must have a concurrent jurisdiction (see R
occurring and to enable Parliament to sit, should it choose to do so. Parliament is, of course,
free to pass legislation which overrides a court’s decision. It can decide not to sit.
[53] The circumstances demonstrate that the true reason for the prorogation is to reduce
the time available for Parliamentary scrutiny of Brexit at a time when such scrutiny would
appear to be a matter of considerable importance, given the issues at stake. This is in the
context of an anticipated no deal Brexit, in which case no further consideration of matters by
Parliament is required. The Article 50 period, as extended, will have expired and
withdrawal will occur automatically.
[54] This conclusion on the true reason stems from a number of factors. First, the
prorogation was sought in a clandestine manner during a period in which litigation
concerning the prospect of prorogation occurring was extant. Although it is possible to
argue about exactly what was meant by the respondent’s fifth plea-in-law (see supra para
[8]), it is not unreasonable to comment that even the respondent’s legal team appear to have
26
been kept in the dark about what was about to happen. Secondly, the decision to prorogue
in the manner sought was taken against the background of the discussions in which it was
being suggested that MPs, and thus Parliament, would be unable to prevent a no deal Brexit
if time was simply allowed to elapse, without further legislation, until the exit date. Put
shortly, prorogation was being mooted specifically as a means to stymie any further
legislation regulating Brexit.
[55] Thirdly, there is remarkably little said about the reason for the prorogation in the
respondent’s pleadings. Although the court would not expect an affidavit from a
Government minister or official testifying to the reason (cf the procedure in England: Belize
Alliance of Conservation Non-Governmental Organisations v Department of the Environment
[2004] Env LR 38, Lord Walker, delivering the opinion of the minority, at para [86]) it would
expect averments in the respondent’s answers setting out that reason. Such averments
would require to be based upon information provided to counsel and to proceed upon
para [64]).
[56] Fourthly, there was, and is, no practical reason for a prorogation for what is, in
modern times, an extraordinary length of time (5 weeks instead of about 7 days). The
Memorandum of 15 August 2019, which does not emanate from a member of the civil
service, does not state that there is any such reason. It says that prorogation could occur as
early as 9 to 12 September; there already being matters scheduled for the first week in
September and additional time was needed for the “wash-up” of extant Bills. There would
be a requirement for Parliament to sit both before and after the EU Council meeting on 17-18
October in order to approve any Brexit deal (2018 Act s 13), hence a Queen’s Speech at about
that time; 14 October being selected. The references in the memorandum and the PM’s
27
handwritten note state that the number of sitting days lost, having regard to the party
conferences, may be relatively small. This does not acknowledge that the party conferences
are normally covered by a period of recess, which Parliament itself has set. Parliament may
elect not to recess or, if in recess, to recall itself. Similarly, the sitting following the Queen’s
Speech is required at least in part to debate the Government’s legislation programme as set
out in that speech. Presumably, the sittings required by the Northern Ireland (Executive
Formation etc) Act 2019 are primarily designed to deal with issues relating to that subject
matter and not for scrutiny of other matters. None of this justifies losing the days, which
might be available, to no apparent purpose, other than not to have time available for
Parliamentary scrutiny of Government action and, in particular, the ongoing Brexit
procedure.
[57] At the Cabinet meeting, the tenor of the PM’s remarks, and the discussion around
them, point to the various factors being used publicly to deflect from the real reason for the
reflected in the frequent references to it in the papers, centred on Brexit and not the
intervention of the party conferences or the new legislative programme.
[58] The fact that there will be some days in September and October during which
Parliament will be sitting, and thus potentially some time to discuss Brexit, does not detract
from the general position that the prorogation is intended unlawfully to restrict that time.
The court is not dictating the days on which Parliament should sit. That is a matter for
Parliament to decide. It is merely holding that a particular attempt to restrict the available
days is unlawful.
[59] Having regard to the substantial effect of the prorogation on the ability of Parliament
to scrutinise Government action, the matter cannot be considered academic. However, the
28
proroguing of Parliament does not have a direct consequence on individual legal rights. The
issue is not justiciable on that basis and the petitioner’s argument to the opposite effect on
this point is rejected.
[60] The court should for these reasons allow the reclaiming motion and grant a
declarator that the advice to prorogue Parliament on a day between 9 and 12 September
until 14 October, and hence any prorogation which followed thereon, is unlawful and thus
null and of no effect.
29
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Drummond Young
[2019] CSIH 49
P680/19
OPINION OF LORD BRODIE
in the reclaiming motion by
JOANNA CHERRY QC MP and OTHERS
against
Petitioners and Reclaimers
THE ADVOCATE GENERAL
Respondent
_______________
Petitioners: O’Neill QC, Welsh; Balfour + Manson LLP
Respondent: Johnston QC, Webster QC; Office of the Advocate General
Intervener (the Lord Advocate): Mure QC, C O’Neill (sol adv); Scottish Government Legal Directorate
Applicants (the BBC and others): McBrearty QC; Burness Paull
11 September 2019
The proceedings
[61] This is a reclaiming motion against an interlocutor of the Lord Ordinary dated 4
September 2019 refusing a petition for judicial review by means of which the petitioners
sought:
30
(1) a declarator that it is ultra vires et separatim unconstitutional for any Minister
of the Crown, including the Prime Minister, with the intention and aim of denying
before Exit Day sufficient time for proper parliamentary consideration of the
withdrawal of the United Kingdom from the European Union, to purport to advise
the Queen to prorogue the Union Parliament.
(2) interdict against Ministers of the Crown from advising the Queen, with the
view or intention of denying before Exit Day sufficient time for proper parliamentary
consideration of the withdrawal of the United Kingdom from the European Union, to
prorogue the Union Parliament and for interdict ad interim.
(3) such further orders (including an order for expenses) as may seem to the
court to be just and reasonable in all the circumstances of the case.
[62] An order for intimation and service of the petition was made on 31 July 2019, the
Advocate General for Scotland being named as respondent in the schedule for service and
the Prime Minister as an interested party. Answers were lodged by the respondent.
Permission to proceed was granted on 8 August. On 13 August parties were allowed to
adjust their respective pleadings until 23 August and to adjust their pleadings in response
until 27 August. Parties were appointed to intimate and lodge in process no later than 4pm
on 30 August all affidavits and other documents to be relied on. On 3 September the Lord
Advocate was granted leave to intervene by way of written submission (at the summar roll
hearing before the Inner House a written submission in the reclaiming motion was
supplemented by a short oral submission by Mr Mure QC on behalf of the Lord Advocate).
[63] Short as that timetable may be thought to be, it was to an extent overtaken by events.
Statement 51 of the petition, which can be seen as encapsulating the petitioners’ complaint is
in the following terms:
31
“That in light of the public statements made by among others the current Prime
Minister and, separately, in light of the refusal by the current Leader of the House of
Commons to rule out the possibility of the UK Government seeking to advise the
Queen to prorogue the Union Parliament the petitioners are reasonably apprehensive
that the UK Government intends to advise the Queen – whether as part of a process
either ending a session of Parliament in preparation for the State Opening of
Parliament, or dissolving Parliament and summoning a new Parliament following a
General Election – to prorogue the Union Parliament in advance of Exit Day so as to
deny the Union Parliament an adequate opportunity to scrutinise the terms of any
exit of the United Kingdom from the European Union and hold to account the
Government as is its role on behalf of the people of the United Kingdom. …”
These averments were denied by the respondent. However, on 28 August 2019 the Queen,
on the advice of the Privy Council, pronounced the following order:
“It is this day ordered by Her Majesty in Council that the Parliament be prorogued
on a day no earlier than Monday the 9th day of September and no later than
Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to
be then holden for the despatch of divers urgent and important affairs, and that the
Right Honourable the Lord High Chancellor of Great Britain do cause a Commission
to be prepared and issued in the usual manner for proroguing the Parliament
accordingly.”
[64] Accordingly, when the petition came before the Lord Ordinary for a substantive
hearing on 3 September 2019, reflecting the fact that, on the petitioners’ interpretation of
events, their apprehension had become a reality with the making of the Order in Council,
their motion to the Lord Ordinary was:
(1) to pronounce a declarator that it is ultra vires et separatim unconstitutional for
any Minister of the Crown, including the Prime Minister, with the intention and aim
of denying before Exit Day sufficient time for proper parliamentary consideration of
the withdrawal of the United Kingdom from the European Union, to purport to
advise the Queen to prorogue the Union Parliament;
(2) to order reduction of the Order in Council of 28 August 2019;
32
(3) to interdict Ministers of the Crown in right of the United Kingdom from
acting upon the Order in Council of 28 August 2019 proroguing the Union
Parliament.
The grounds of challenge
[65] In their petition the petitioners present two grounds of challenge to the lawfulness of
the Order in Council of 28 August 2019 proroguing Parliament (the “Order”).
[66] The first ground is summarised at statements 37 to 42 of the petition. Put short, it
might be stated in two propositions which are to be found in that part of the petition: (i) the
UK Government, as the executive, is on all matters politically accountable and answerable to
the Union Parliament; and (ii) in advising the Queen to prorogue the Union Parliament prior
to Exit Day [by making the Order] with a view to denying the Union Parliament sufficient
time properly to consider issues around the withdrawal of the United Kingdom from the
European Union would undermine the United Kingdom’s system of constitutional and
democratic government in respect of the principle of the political accountability of the
executive to the legislature and its legal accountability to the courts.
[67] The second ground of challenge is that prorogation of Parliament for a period of
some five weeks consequent on the Order would frustrate the will of Parliament as
expressed in at least two statutes: the European Union (Withdrawal) Act 2018 (the “EUWA
2018”) and the Northern Ireland (Executive Formation etc) Act 2019 (“NIEFA”). It is to this,
the second ground, that I will first turn.
The second ground of challenge
[68] In my opinion, the second ground of challenge can be dealt with briefly; and rejected.
33
[69] The argument based on EUWA 2018 is as follows. Article 50 of the Treaty on
European Union (2007/C 326/01) ('TEU') provides inter alia:
“1. Any Member State may decide to withdraw from the Union in accordance
with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European
Council of its intention. … [T]he Union shall negotiate and conclude an agreement
with that State, setting out the arrangements for its withdrawal …
3. The Treaties shall cease to apply to the State in question from the date of
entry into force of the withdrawal agreement or, failing that, two years after the
notification referred to in paragraph 2, unless the European Council, in agreement
with the Member State concerned, unanimously decides to extend this period.”
[70] What article 50 terms “an agreement with [the withdrawing] State, setting out the
arrangements for its withdrawal” has come to be generally referred to as “a deal” and,
conversely, the absence of any such agreement as “no deal”. A withdrawal agreement
reached by the government requires ratification by Parliament in terms of section 13 of
EUWA 2018. It is the petitioners’ contention that the effect of section 13 of the Act, as read
with section 1(1) of the European Union (Notification of Withdrawal) Act 2017 and the
European Union (Withdrawal) Act 2019 is that:
“… in the absence of express Parliamentary discussion and specific Parliamentary
approval for such a course, it is unlawful for the Government (relying on the
automatic effect of EU law and its own failure) to allow the United Kingdom to leave
the European Union by default, without a deal. Ministers accordingly require the
authority of Parliament in the form of new primary legislation expressly allowing for
it, before they can lawfully take the course of allowing for such a ‘no deal Brexit’.
The Government is therefore obliged to ensure that Parliament is sitting for such no
deal authorising legislation to be considered by Parliament and, if so advised, passed
before Exit Day.”
[71] The respondent disputed that interpretation of section 13. It is directed at
parliamentary approval of a withdrawal agreement; it has no application to an exit from the
34
EU without a deal because in these circumstances there would be no deal to be approved.
The Lord Ordinary agreed with that interpretation. I express no concluded opinion on the
matter. On the face of it section 13 is about approval of a deal. To come to a concluded view
on the proper interpretation of the legislation would require a much more detailed
examination than has been or is possible in the time available. More critically, as Mr
Johnston QC submitted on behalf of the respondent, section 13 of EUWA 2018 is irrelevant
to the issues in the petition. If, contrary to the respondent’s interpretation, it requires
parliamentary approval for a no deal exit then the petitioners’ principal concern, a no deal
exit by default, cannot occur. I would add that, again, the petition would appear to have
been overtaken by events in that the European Union (Withdrawal) (No 6) Bill received
Royal Assent, on 9 September 2019, and became the European Union (Withdrawal) (No 2)
Act 2019. That Act provides that unless Ministers have sought and obtained parliamentary
approval either of a withdrawal agreement or of leaving the European Union without an
agreement by 19 October 2019 then the Prime Minister must seek a further extension of the
article 50 notice period until 31 January 2020.
[72] The NIEFA argument is based on the requirement of section 3 of that Act for a
Minister to report periodically to the House of Commons until December 2019 on the
progress of talks on restoring the Northern Ireland Assembly. The petitioners aver that this
indicated the clear intention and purpose of Parliament to ensure that it continued to sit
throughout September to December 2019 to ensure, among other things, Parliament’s
continued scrutiny of the process of the UK’s withdrawal from the European Union and to
maintain the accountability of the Government on this issue. I do not accept that. NIEFA
illustrates that Parliament can and does regulate when it will sit. The provisions of NIEFA
are very specific as to the days when Parliament must sit in the period until December 2019,
35
assuming no dissolution but irrespective of prorogation. It can be taken to have been
Parliament’s intention to sit on these days but it cannot be taken that it was Parliament’s
intention to sit on other days. Just what business Parliament considers in addition to the
progress of talks on restoring the Northern Ireland Assembly will be for Parliament to
determine but there is nothing in NIEFA to prevent Parliament standing prorogued for
other than the specified days. However, I do not go the distance of accepting that by
passing the bill that became NIEFA, Parliament must be taken to have “occupied the
ground”, as it was put by Mr Johnston for the respondent, if by that he meant having
comprehensively determined all the days when it must sit before December 2019, but as to
the petitioners’ suggestion that a more extensive parliamentary intention can be implied
from NIEFA than what is specifically stated I agree with the respondent and the Lord
Ordinary.
The first ground of challenge
[73] The first ground of challenge gives rise to two broad questions: first, whether this
court in exercise of its supervisory jurisdiction can reduce the Order; second, whether it
should.
[74] In order to answer these two questions in the affirmative, as the petitioners would
wish, the court must be satisfied that the advice given to the Sovereign by the relevant
members of the Privy Council in respect of the making of the Order was in some way
unlawful, however that unlawfulness is characterised; “abuse of power”, “ultra vires”,
“unconstitutional”, “improper purpose” and “irrational” were among the expressions used
in the course of submissions.
36
The petitioners’ submission in support of the first ground of challenge
[75] There are three pillars to the State: Parliament, the Executive, and the courts. While
its sovereignty may not be absolute, Parliament is sovereign. The Executive must act within
the powers permitted it by Parliament, and for the purposes for which those powers were
left with it by Parliament. The Executive is politically accountable to Parliament for exercise
of its powers. Through its exercise of prerogative power the Executive may prorogue
Parliament but if and so far as the Executive were to use this power in order to avoid being
held accountable to Parliament or to impede Parliament from exercising control over the
Executive that would be unlawful. The proper constitutional relationship of the Executive
and the courts is one of mutual respect; the courts will respect all acts of the Executive
within its lawful province, and the Executive will respect all decisions of the courts as to
what its lawful province is. As the Executive is politically accountable to Parliament, the
Executive is legally accountable to the courts. The government of the United Kingdom is
subject to the rule of law and it is the function of the courts to ensure the rule of law by
providing an effective remedy against any constitutional violation. It is the law (and
accordingly a matter for courts in enforcing the rule of law) that parliaments be called and
allowed to sit: the Claim of Right Act 1689, as subsequently confirmed. It is therefore clear
that the Executive’s power to prorogue Parliament is a matter which is justiciable before the
courts and is reviewable on grounds of irrationality or breach of other judicial review
power of prorogation of Parliament is accordingly not unlimited or unfettered. Exercise of
the power is lawful only if it is consistent with constitutional principle. The power can only
be exercised for a proper purpose. Even if it is exercised for a proper purpose, it is subject to
37
review on the ordinary principles of legality, rationality and procedural propriety. In the
present case the Prime Minister has declined to give a proper and complete account of the
Executive’s true reasons for exercising the prerogative to prorogue Parliament for the period
specified in the Order. This refusal by the Prime Minister to explain the decision-making
and reasoning underlying the exercise of the power at the present time mean that the court
should draw inferences of fact against the respondent. In particular it is proper in these
circumstances for the court critically to examine and sceptically to question the reasoning
and justification given for the exercise of the power to prorogue Parliament in his letter of 28
August 2019 to MPs (that the decision was not driven by Brexit, and that the Prime Minister
wished to press ahead with a new agenda and to prepare for its presentation in a Queen’s
approach taken by Sales J, as he then was, at first instance). Such an approach of anxious
scrutiny was appropriate as requiring the Executive to demonstrate that the most
compelling of justifications existed for an exercise of the power to prorogue where it will
have profoundly intrusive and distortive effects on the constitution. It is in any event clear
that the Executive’s exercise of the power in the present case has been vitiated by its use for
an improper purpose and in an unreasonable manner namely: to prevent or impede
Parliament holding the Executive politically to account in the run up to Exit Day; to prevent
or impede Parliament from legislating on the United Kingdom’s exit from the European
Union; and to allow the Executive, notwithstanding that it has no Parliamentary mandate to
do so, to pursue a policy of No Deal Brexit without further Parliamentary interference. The
Executive has purported to use the power intending to silence and disempower Parliament
for the crucial period in the immediate run up to Exit Day. Prorogation used in this way
seeks to curtail Parliament’s capacity to exercise the totality of legislative authority. Where,
38
as in the present case, the Executive so abuses its power of prorogation of Parliament, it is
the paramount duty of the court to say so.
The Lord Advocate’s submission in support of the first ground of challenge
[76] The question was whether, having regard to its effects in all the circumstances, this
particular decision to prorogue was one that calls for the intervention of the court. In the
particular context the decision to advise and procure the prorogation of Parliament for five
weeks at this time may properly be characterised as an abuse of executive power which calls
for intervention. It is an existential question: whether Parliament is to sit. The Executive is
accountable to Parliament but once the Executive has suspended Parliament that mechanism
for democratic accountability is removed and yet it is said that a closing down of the
possibility of scrutiny of the Executive is non-justiciable. The abuse of power lies in the
timing and duration of the prorogation, its effect on a fundamental constitutional principle –
namely, accountable or responsible government – and a marked absence of any compelling
justification offered in that regard by the Prime Minister for that timing and length. While
the UK Government has publically stated that the purpose of prorogation at this time is to
bring the current session of Parliament to an end, a period of five weeks is disproportionate
for that purpose. It was the role of the courts to protect Parliament. It would be odd if the
court disqualified itself just because political judgement is involved. Merely because a
question is in the political sphere does not mean that it is not justiciable. The real issue was
how the courts should carry out their review, in other words what is the appropriate
standard and intensity of review. The structure of analysis that the intervener invites the
court to apply is a familiar one. It involves the court assessing the impact of the decision
under review on a recognised legal interest, here the constitutional principle of responsible
39
government; in applying scrutiny to the justification advanced by the UK Government; and
in addressing whether the interference is rationally connected to the justification; and
whether that impact is proportionate to the justification advanced. These are all questions
which are apt for judicial determination. The constitutional right of Parliament to sit is so
important that it requires enforcement in the court. In these circumstances the intervener
invites the court to reduce the Order.
The Lord Ordinary’s opinion
[77] In refusing the petition, the Lord Ordinary essentially accepted the submissions
made to him on behalf of the respondent. Review of the exercise of some prerogative
powers was justiciable in some cases but not in others. Whether the exercise of prerogative
power is reviewable depends on the subject matter of the power or its exercise and the
context of the power and of the challenge. Some functions exercised or decisions taken are
non-justiciable. Among them are matters of high policy and political judgement. The courts
do not have the tools or standards to assess the legality of such matters. That is political
territory and decision-making which cannot be measured against legal standards but rather
only by political judgements. It could not be said that the prorogation contravened the rule
of law, thus making the claim justiciable. The Prime Minister had the vires to advise the
Sovereign as to the exercise of the royal prerogative. Parliament is master of its own
proceedings. It is not for the courts to devise restraints on prorogation beyond those which
Parliament has chosen to provide. The Lord Ordinary saw force in the submission by
counsel for the respondent that the petitioners’ claim that the Claim of Right Act 1689 had
been contravened was non-justiciable but he preferred to decide that issue on the more
40
straightforward ground that there was nothing to support any breach of the provisions of
the Act.
Discussion
[78] The petitioners seek to challenge the exercise of the royal prerogative in order to
prorogue Parliament.
[79] A session of a Parliament can only be brought to an end by an exercise of the royal
prerogative (hence the Order); formerly this was done at the end of the session by the
monarch in person but now it is prorogued by a commission for the purpose under the
Great Seal; the effect of prorogation is to put an end with certain exceptions to all
proceedings then current and to suspend any sitting of Parliament or its committees for the
period of prorogation (see Erskine May’s Parliamentary Practice (24th edit, 2011, pp144-145).
[80] The Order was made by the Queen but, as appears on its face, in making the Order
she was acting in council, in other words with the advice of ministers. In reality the
Sovereign never acts by himself, but only through the medium of ministers or executive
servants and accordingly a challenge to an order in council is properly directed against the
responsible ministers or their law officer (Edwards v Cruickshank (1840) 3 D 282, Lord
President Hope at pp 306-307, quoted with approval by Lord Rodger in R (Bancoult) v
at 473). As a matter of procedure an order in council may be quashed by decree of the
Court of Session in an action or petition directed against the Advocate General for Scotland
(Crown Suits (Scotland) Act 1857, R (Bancoult) at para 106).
[81] While the respondent submits that this is all a matter of high politics and therefore
not a matter for the courts, a certain amount is conceded or otherwise not a matter for
41
argument. The petitioners have been granted permission to proceed. Their standing to
bring the petition has accordingly been acknowledged by the court and indeed was
expressly accepted by the respondent. Also accepted was that, as a matter of generality, this
court has jurisdiction to review an exercise of power derived from the royal prerogative.
There is no procedural difficulty in this court granting a decree the effect of which is to
nullify the Order. While the court was reminded of the separation of powers, I did not
understand the proposition that review of the Order would in some way constitute
contempt of Parliament to be pressed. Thus, while we heard much from Mr O’Neill on
behalf of the petitioners which was both interesting and stirring about a particularly Scottish
tradition of holding the Crown, in its various manifestations, to account, for present
purposes (and not having actually identified any material differences between the applicable
Scots law and the corresponding English law) Mr O’Neill was, to an extent, pushing at an
open door; however only to an extent. The Lord Ordinary has held that the petitioner’s first
ground of challenge is not justiciable; that prorogation of Parliament in terms of the Order is
not contrary to the rule of law; that as Parliament is master of its own proceedings, the
courts will not interfere; and that there has been no contravention of the Claim of Right Act
1689. He has refused the petition. Counsel for the respondent submits that he was right to
do so.
[82] I shall address these points in turn, although there is a degree of inter-dependence
among them.
Not justiciable
[83] Without pretending to define the concept, I would see a question to be justiciable if it
is capable of practical determination by reference to legal principles in a court of law. If it is
not capable of determination in that manner it is not justiciable. I have suggested that the
42
first ground of challenge gives rise to two issues: whether this court can reduce the Order;
and second, whether it should. Both involve a question of justiciability in that in order for
this or any other court to find those whom the respondent represents to have acted
unlawfully the court must be satisfied that there are sufficiently precise and applicable legal
principles by reference to which the lawfulness of making the Order can be judged; and the
court must further be satisfied that on the material available to it by applying the relevant
principles it should conclude that advising the Queen to make the Order was an unlawful
act. The Lord Ordinary captured the notion of justiciability, or at least non-justiciability
rather more succinctly than I have been able to do when he indicated that where the court
does not have the tools or standards to assess the legality of a matter then it is not justiciable.
In doing so the Lord Ordinary was echoing the “lack of judicial or manageable standards”
referred to in the joint judgment of Lords Neuberger, Sumption and Hodge in Shergill v
Khaira [2015] AC 359 at para [40] (and see also the other authorities cited by the respondent:
Home Secretary [2005] 2 AC 68 at para [29], Wheeler v Office of the Prime Minister [2008] EWHC 1409,
[84] The Lord Ordinary correctly recognised that review of the exercise of some
prerogative powers was justiciable in some instances but not so in respect of other powers or
other instances; it will depend on the nature of the power, the circumstances and context of
its exercise, any established practice or undertaking giving rise to an expectation, and the
precise way in which a particular challenge is formulated (R (Sandiford) v Foreign Secretary at
paras 50-52 and authorities cited there). However, while questions of justiciability in judicial
review are not confined to applications to review exercises of the royal prerogative they are
43
more likely to arise in such cases because of the relatively amorphous nature of common law
prerogative powers in comparison to the more closely defined powers conferred by statute.
[85] An illustration of circumstances in which a court may conclude that a question or
issue is not justiciable is provided by the line of argument in the present case that the
making of the Order contravenes the provisions of the Claim of Right Act 1689. It is a
statute but also a document of its time. It lacks the precision to be expected of modern
legislation. The passage founded on by the petitioners reads as follows:
“That for redress of all grievances and for the amending strenthneing and preserving
of the lawes Parliaments ought to be frequently called and allowed to sit and the
freedom of speech and debate secured to the members”
As I understand it, the Lord Ordinary rejected the petitioners’ contention that making the
Order contravened the 1689 Act on the basis that a particular prorogation of Parliament,
taken in isolation, does not amount to breach of a requirement that Parliament be “allowed
to sit”. However counsel for the respondent had also argued that, given the terms of the
relevant text, the question of whether the requirement that Parliament be “allowed to sit”
was not justiciable. Like the Lord Ordinary, I see the force of that argument. Where in
practice the sitting of Parliament is commonly adjourned and prorogued, by reference to
what criteria and what materials can a court determine that in a particular instance
Parliament has not been “allowed to sit”? Moreover, if this is brought into contention, how
can a court decide that the “redress of all grievances and for the amending strenthneing and
preserving of the lawes” or “freedom of speech and debate” have been subverted or
prevented?
[86] As matters stood when the petition was first presented (31 July 2019) I am inclined to
the view that the petitioners were not in a position to frame a justiciable question or at least
had not done so. The events up to that date which are recorded by your Lordship in the
44
chair provided context, but I do not consider that a court asked to consider the petition on 31
July 2019 would have had the materials or the “judicial or manageable standards” available
to it to conclude that the petitioners had a reasonable apprehension that Parliament was to
be prorogued in such a way as to be unlawful. It was then the apprehension of the
petitioners that Parliament was to be denied “sufficient time for proper parliamentary
consideration of the withdrawal of the United Kingdom from the European Union”. It does
not appear to me that a court has the capability to determine what time is sufficient for
Parliament or what consideration is proper for Parliament when the matter for consideration
is the withdrawal of the United Kingdom from the European Union.
[87] The landscape changed, however, with the making of the Order, the issue of the
Prime Minister’s letter to MPs on 28 August 2019 and the disclosure to the court of copies of
the three redacted documents referred to by your Lordship in the chair which were
apparently exhibited to the witness statement of Jonathan Guy Jones dated 2 September 2019
in the proceedings R (Miller) v The Prime Minister before the Queen’s Bench Division of the
High Court in England (Exhibit JGJ/1, Exhibit JGJ/2, and Exhibit JGJ/3). The making of the
Order meant that prorogation was no longer a matter of apprehension; it would happen.
Moreover, the dates and the period of prorogation were known. The Prime Minister’s letter
set out his explanation for the prorogation. The redacted documents provided material
bearing on the thinking of the Prime Minister and his advisers, which, taken with the whole
circumstances, including the Prime Minister’s public statements, might allow a court to
draw inferences as to whether the Prime Minister’s explanation disclosed his whole or
indeed his principal reasons for proroguing Parliament at this time.
[88] As to the use to be made of the redacted documents, I respectfully associate myself
with the position of your Lordship in the chair. It was submitted by Mr O’Neill on behalf of
45
the petitioners that it was simply not open to a party to put in documents to support his case
in redacted form where the redaction was at his hand; any claim of privilege or
confidentiality had to be taken as having been waived. Mr O’Neill was also critical of the
absence of any affidavit, whether to explain the documents or otherwise to support the
reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted
Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I
do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to
look at any documentary production which is tendered to it and give it such weight as the
court considers that it is worth. If a party has redacted certain portions in the way that these
documents have been redacted (portions blacked out) then it is clear that the court is not
being provided with the full text of the original. The court can take that into account.
Redaction may mean that certain inferences should be drawn. However, I do not consider
that a party should not be allowed to produce a document in redacted form or to rely on it,
for what it is worth. Similarly I do not consider that a document cannot be produced and
relied on where it is evident that it is part of or originally intended to be read with another
document, such as an affidavit. Counsel for the respondent explained that the three
documents had been produced on the advice of the Treasury Solicitor in discharge of what
he saw to be a duty of candour to the court. The redactions had been made on the basis of
legal professional privilege, the convention as to Law Officers’ advice and relevancy. I see
no reason why not to accept the good faith and professional diligence of the Treasury
Solicitor and of counsel when he advised that he had satisfied himself that redactions had
been properly made. Indeed, while there may be cases when the court will have to probe
more deeply, I would see every reason for the court to be prepared to rely on what is said by
professional civil servants and counsel who understand what is meant by accurate
46
information and their duty to present it to the court. In an age of special or political advisers
who may not share that understanding and the diffusion of “messaging”, to use an
expression in the cabinet minute, responsible conduct and adherence to the highest
standards is to be encouraged.
[89] When regard is had to all the material now before the court, it is my opinion that the
petitioners are entitled to be sceptical of the proposition that the reason for making the
Order was simply in order to prepare a new legislative agenda for announcement in a
Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider
that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the
petitioners, that the principal reason for the advice to the Queen to make the Order for the
prorogation of Parliament was to prevent or impede Parliament holding the Executive
politically to account in the run up to Exit Day; to prevent or impede Parliament from
legislating on the United Kingdom’s exit from the European Union; and to allow the
Executive to pursue a policy of no deal Brexit without further Parliamentary interference.
My reasons for inferring that are as follows. The Prime Minister has made it very clear that
his principal policy objective is to achieve a withdrawal of the United Kingdom from the
European Union on 31 October 2019 irrespective of the consequences of such a withdrawal
and therefore irrespective of the making of a withdrawal agreement with the European
Union with a view to ameliorating some of the adverse effects of withdrawal (that there will
be adverse effects would seem to be accepted by the Prime Minister, given his expressed
wish to negotiate an agreement). If withdrawal by 31 October 2019 means a no deal Brexit
then the Prime Minister is prepared to accept that. He would prefer to be “dead in a ditch”
to not achieving that objective. However, the Prime Minister does not command a majority
in Parliament for this policy objective if it comes at the price of no deal. A sitting Parliament,
47
carrying out its constitutional functions including the passing of legislation, therefore
presents the potential to interfere with the Prime Minister’s policy objective. As it happens,
this was to be demonstrated during the two days of the hearing of the reclaiming motion,
but it had been anticipated for some time before that. What was also anticipated, not just by
the petitioners but in public statements by at least one member of the present cabinet, that a
means of preventing such interference would be to prorogue Parliament (and the speaker
said he was willing to procure that). It is now known that a prorogation of some five weeks
between 9 September and 14 October was being planned at least as early as 15 August. That
planning would seem to have been conducted in conditions of some secrecy. That
Parliament was to be prorogued was only announced after the Order was made, on 28
August. That was so, as your Lordship in the chair observes, despite the fact that the
petitioners’ application with its averments of apprehension of a prorogation had been
initiated on 31 July without any subsequent acknowledgement in the respondent’s pleadings
that the apprehension was well founded. As your Lordship observes, it would appear to
have been thought appropriate to keep the respondent’s legal advisers in the dark about
what was planned. Of significance is the length of the prorogation. The note from Nikki Da
Costa to the Prime Minister (Exhibit JGJ/1) states that the usual length of prorogation is
usually under 10 days, although occasions of longer periods are there identified. For the
reasons given by Professor Paul Craig in Prorogation: Constitutional Principle and Law, Fact
and Causation, Oxford Human Rights Hub, 31 August 2019, presenting and initiating a new
legislative agenda would not appear to require a five week prorogation of Parliament. That
the Prime Minister was conscious that an inference might be drawn that the true purpose of
the prorogation was other than it was claimed to be appears from the cabinet minute
(Exhibit JGJ/3). He is there recorded as saying that it was “important to emphasise that this
48
decision to prorogue Parliament for a Queen’s speech was not driven by Brexit
considerations …”. The point was picked up in discussion during which it was observed
that:
“any messaging should emphasise that the plan for a Queen’s Speech was not
intended to reduce parliamentary scrutiny or minimise Parliament’s opportunity to
make clear its views on Brexit. … Therefore, any suggestion that Government was
using this as a tactic to frustrate Parliament should be rebutted;”
One can protest too much, but even if Parliament is to be given an opportunity “to make
clear its views” that does not mean that it is intended that it should have the opportunity to
do anything about them.
[90] In my opinion the justiciability question should be approached on the basis that what
is challenged by the petitioners is “a tactic to frustrate Parliament”, to use the shorthand of
the cabinet minute. Can and should this court declare this tactic unlawful?
[91] I can see that just because a government has resorted to a procedural manoeuvre in
order to achieve its purpose does not mean that there is necessarily scope for judicial review.
Procedural manoeuvres are the stuff of politics, whether conducted in Parliament or in
lesser bodies. However, when the manoeuvre is quite so blatantly designed “to frustrate
Parliament” at such a critical juncture in the history of the United Kingdom I consider that
the court may legitimately find it to be unlawful. There are undoubted difficulties in the
courts applying its supervisory jurisdiction to an exercise of the royal prerogative within the
political sphere, but Mr Johnston for the respondent did not go the distance of saying that
there could never be a case which would justify intervention. He accepted that a two year
prorogation of Parliament might be amenable to review. Here, the prorogation is only five
weeks (and it is to be borne in mind that in practice the reduction of sitting days will be less
because of the traditional adjournment of Parliament during the political party conference
49
season). However, it is a lengthy prorogation at a particularly sensitive moment when time
would seem to be of the essence. In my opinion Mr Mure QC for the Lord Advocate (whose
analysis I accept) was right to point to the dictum of Lord Sumption in Pham v Secretary of
State [2015] UKSC 19 at paras 105-106:
“in reality [there is] a sliding scale, in which the cogency of the justification required
for interfering with a right will be proportionate to its perceived importance and the
extent of the interference”.
Here there has been interference with Parliament’s right to sit, should it wish to. The
petitioners want to protect that right. If Parliament does not wish to be so protected it can
decide accordingly but the petitioners want to give it the opportunity to determine whether
and when it is to sit between now and 31 October. The petitioners submit that as yet
Parliament has not had that opportunity, notwithstanding the legislative activity that was
going on during the hearing of the reclaiming motion. What has led me to conclude that the
court is entitled to find the making of the Order unlawful is the extreme nature of the case.
A formulation to which I have been attracted is found in chapter 14, Crown Powers, the Royal
Prerogative and Fundamental Rights, in Wilberg & Elliott, The Scope and Intensity of Substantive
Review (Hart, 2015) at p 374 where the author of the chapter, Sales LJ, as he then was, refers
to a group of authorities where the courts had been prepared to review exercises of the
Crown’s common law and prerogative powers. The formulation is: “these are egregious
cases where there is a clear failure to comply with generally accepted standards of behaviour
of public authorities”. I see this as an egregious case. Mr O’Neill came to submit that the
essence of the illegality here was irrationality (as had been the cases with the cases referred
to by Sales LJ). Mr O’Neill may be right about that, although I would see it as having to do
with improper purpose. At all events, I consider the Order to be unlawful and that making
it was contrary to the rule of law.
50
Parliament the master of its own proceedings
[92] Clearly Parliament is the master of its own proceedings but, as I would see it, what
the petitioners seek to achieve is to allow it to act as such.
No breach of the Claim of Right Act 1689
[93] As previously touched on, I would agree with the Lord Ordinary on this point.
Conclusion
[94] I respectfully agree with your Lordship in the chair. The Order was unlawful and
thus null and of no effect. The court should grant an order to that effect.
51
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Drummond Young
[2019] CSIH 49
P680/19
OPINION OF LORD DRUMMOND YOUNG
in the reclaiming motion by
JOANNA CHERRY QC MP and OTHERS
against
Petitioners and Reclaimers
THE ADVOCATE GENERAL
______________
Respondent
Petitioners: O’Neill QC, Welsh; Balfour + Manson LLP
Respondent: Johnston QC, Webster QC; Office of the Advocate General
Intervener (the Lord Advocate): Mure QC, C O’Neill (sol adv); Scottish Government Legal Directorate
Applicants (the BBC and others): McBrearty QC; Burness Paull
11 September 2019
Introduction
[95] I am grateful to your Lordship in the chair for setting out the factual background to
this case. I agree with your Lordship that the reclaiming motion should be allowed and that
this court should pronounce a declarator that it was ultra vires et separatim unconstitutional
for any Minister of the Crown to purport to advise the Queen to prorogue the United
52
Kingdom Parliament in the manner of the Order in Council reportedly pronounced on 28
August 2019.
[96] The critical question is whether the Government’s decision to prorogue Parliament
embodied in the Order in Council of 28 August was a proper exercise of the executive’s
power. It is a matter of agreement that the power to prorogue Parliament falls within the
royal prerogative. The prerogative extends to other matters, notably foreign policy, the
defence of the realm and the prerogative of mercy. Nevertheless, the power to prorogue
Parliament differs from other prerogative powers in important respects. Principal among
these is the fact that prorogation raises in an acute form the relationship between the
executive and the legislature. That is obviously a matter of fundamental constitutional
importance. Parliament is the democratically elected organ of government, and the
government, the executive, is answerable to Parliament and will normally attempt to obtain
majority support there. Prorogation has the effect of suspending the operation of the
democratically elected body, leaving the executive for the time being free of political (as
against legal) control. In this connection there is an important distinction between
prorogation and Parliament’s going into recess. During a recess, Parliament may reconvene
itself at any time. Prorogation, by contrast, is an act of the executive, not of Parliament, and
Parliament can do nothing during the period of prorogation to bring it to an end.
[97] In considering whether the exercise of the power to prorogue Parliament has been
properly exercised, three features of the constitutional system of the United Kingdom are in
my opinion of central importance: the sovereignty of Parliament, the accountability of the
executive to Parliament, and the rule of law. I will begin with a brief consideration of those
principles. Thereafter I will consider whether the exercise by the executive of the power to
prorogue Parliament is subject to control by the courts, and if so in what circumstances and
53
in what manner the courts may control the exercise of the power. Finally, on the basis that
the courts do have such a power, I will consider the particular decision to prorogue
Parliament that is in issue in the present case: the circumstances in which the decision to
prorogue has arisen, the reasons given for the decision, and whether in all the circumstances
the exercise of the power is intra vires of the government.
Parliamentary sovereignty
[98] Under the constitutional system of the United Kingdom Parliament is the sovereign
institution. Its sovereignty is exercised through the enactment of Acts of Parliament, which
represent law binding on all persons, including the executive and other official institutions.
The principle has been described as
“the right to make or unmake any law whatever; and, further, that no person or body
is recognized by the law… as having a right to override or set aside the legislation of
Parliament”: Dicey’s Introduction to the Study of the Law of the Constitution, 8th ed
(1915), at page 38.
In the recent decision of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the
European Union, [2018] AC 61, the majority of the court described Parliamentary sovereignty
as “a fundamental principle of the UK constitution”, and affirmed that the legislative power
of the Crown is today exercised only through Parliament: see paragraphs [40]-[46]. Thus it is
Parliament, and Parliament alone, that is empowered to effect changes in the law of the
United Kingdom, either directly in an Act of Parliament or indirectly by authorizing
subordinate legislation through an Act of Parliament.
The executive and Parliament
[99] Thus the enactment of statute law is a vital function of Parliament. Parliament has a
second equally important function, namely that of holding the executive to account. The
policies and actions of the government are subject to scrutiny in Parliament by Members of
54
Parliament. The United Kingdom operates by a system of representative democracy, and it
is Members of Parliament, representing the interests of their constituents and the wider
interests of the country, who are responsible for ensuring that the executive operates in the
national interest. In particular, Parliament is responsible for ensuring that the policies of the
executive are properly considered in a democratic body, and that the actions of the executive
are subject to critical scrutiny, with representatives of the government reporting on and
explaining those actions. In this way Parliament performs the fundamental role of
protecting the country from the arbitrary exercise or abuse of executive power. The
importance of the latter function is obvious, both in the abstract and in the light of the events
during the 17th century that gave rise to the principle of Parliamentary sovereignty.
The rule of law
[100] The importance of the rule of law should be self-evident: a system of democratic
government that pays proper respect to the rights of citizens must be based on a system of
rules, and those rules must be properly interpreted and consistently applied. Otherwise
government is liable to descend into tyranny or anarchy. The doctrine of the sovereignty of
Parliament emerged from the constitutional conflicts of the 17th century, and in particular
from the settlement effected by the Revolution of 1688-90. The principle was recognized in
various statutes that followed the Revolution, notably the Claim of Right Act 1689 (c 28) in
Scotland, the Bill of Rights 1688 (1 Will & Mar Sess 2 c 2) and the Act of Settlement 1700 (12
& 13 Will 3 c 2) in England and Wales, and the Acts of Union of 1706 (6 Ann c 11) and 1707
(c 7) in England and Wales and in Scotland respectively. Central to the Revolution
settlement, however, was the principle of the rule of law. Thus the introductory clause of
the Claim of Right Act refers to King James VII’s invading the fundamental constitution of
the kingdom, altering it from “a legall limited monarchy to ane Arbitrary Despotick power”,
55
and asserting an absolute power to annul and disable laws. The Bill of Rights likewise refers
to the King’s assuming and exercising a power of dispensing with and suspending laws
without the consent of Parliament. Those two statutes reflect the fact that the rule of law is
fundamental to the constitutional system of the United Kingdom.
[101] The maintenance of the rule of law – determining what the law is and ensuring that
it is consistently applied and if necessary enforced – is a primary function of the judiciary.
That is a task that must obviously be carried out with scrupulous impartiality and
objectivity. Judicial independence is central to that function. The executive cannot be judge
of its own powers; independent courts must be able to consider the exercise of those powers
in order to determine whether such exercise is or is not intra vires.
Judicial control of the power to prorogue
[102] The primary submission for the respondent was that the petitioners’ challenge to the
exercise of the power to prorogue Parliament was non-justiciable. In my opinion this
contention must be rejected. The rule of law requires that any act of the executive, or any
other public institution, must be liable to judicial scrutiny to ensure that it is within the
scope of the legal power under which it is exercised. The boundaries of any legal power are
necessarily a matter for the courts, and the courts must have jurisdiction to determine what
those boundaries are and whether they have been exceeded. That jurisdiction is
constitutionally important, and in my opinion the courts should not shrink from exercising
it. Consequently, if the expression “non-justiciable” means that the courts have no
jurisdiction to consider whether a power has been lawfully exercised, it is a concept that is
incompatible with the rule of law and contrary to fundamental features of the constitution of
the United Kingdom.
56
[103] When pressed on the meaning of the expression “non-justiciable”, counsel for the
respondent conceded that in some circumstances the court might hold that the power to
prorogue Parliament had not been validly exercised: for example, if Parliament were
prorogued for two years, or if the governing party lost its majority at a general election and
immediately thereafter attempted to prorogue Parliament. In my opinion that concession
was properly made. What the concession acknowledges, however, is that the power to
prorogue Parliament is subject to judicial review by the courts. For the reasons stated in the
last paragraph I am of opinion that this is inevitable: the courts must have jurisdiction to
determine whether any power, under the prerogative or otherwise, has been legally
exercised.
The grounds for judicial control
[104] The grounds for judicial control of the exercise of prerogative powers are in my
opinion broadly the same as those used in other cases of judicial review of executive action,
subject to one important qualification, that the court should not interfere with the
substantive political grounds for the exercise of prerogative power provided that the power
is used for a proper purpose. The grounds for judicial review are well known and do not
require to be restated; they include ultra vires in the narrow sense and the use of a power for
an improper purpose: something that does not fall within the purposes that the power,
construed objectively, is intended to achieve. Those grounds are legal in nature, however,
and do not normally go to policy questions, including political matters. In judicial review,
the primary decision maker is a body or person other than the court, and the court only has
jurisdiction to review the legality of a decision, not its merits. In relation to the prorogation
of Parliament, this feature is particularly important, as a decision to prorogue Parliament is
likely to be based on political considerations. This may make it difficult to apply standards
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such as proportionality, which does involve consideration of the merits of a decision.
Nevertheless, standards of review are flexible, and in appropriate circumstances it would be
possible for a court to hold that a decision by the executive to exercise a prerogative power is
one that no reasonable person in that position could exercise: see, for example, Pham v Home
Secretary, [2015] 1 WLR 1591, in particular at paragraphs [105]-[107]. For present purposes, it
is not necessary to go so far; it is sufficient to hold that the court has jurisdiction to consider
whether the exercise of a power, including a prerogative power, is ultra vires, or whether
such a power is used for a purpose that is objectively outwith its intended scope.
[105] Counsel for the respondent submitted that the court should not interfere with the
present decision to prorogue Parliament on the ground that it amounted to “high policy”.
The expression “high policy” has not, so far as I am aware, been judicially defined; it has
been used in a number of cases, but generally as a convenient label in a case where the court
considers that the executive decision in question is too political for the court to interfere
with. The court must not stray into the political aspects of any executive decision, especially
one in exercise of the prerogative, but in my opinion it must still apply legal standards in the
manner described in the last paragraph.
Parliamentary control
[106] It does not follow, that the actions of the executive, and in particular its use of
prerogative powers, are subject to no political control. Political control over such actions is
exercised by Parliament through its scrutiny of the actions of government. This includes
such matters as Parliament’s power to call for debates on controversial matters or to
question ministers about their decisions. As I have indicated, parliamentary scrutiny of
executive decisions is one of the essential features of the constitutional arrangements of the
United Kingdom. Thus the government is held to account in two distinct ways: legally by
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the courts and politically, or on policy grounds, by Parliament. With the prorogation of
Parliament, however, this leads to a paradox. The proroguing of Parliament suspends the
operation of the body that is responsible for subjecting the executive to critical scrutiny.
Consequently during the period of prorogation formal political scrutiny of the executive
cannot take place. This in my opinion makes it particularly important that the courts should
ensure that the power to prorogue Parliament is only used in a proper manner and for
proper purposes. The courts cannot subject the actings of the executive to political scrutiny,
but they can and should ensure that the body charged with performing that task,
Parliament, is able to do so.
[107] On the subject of prorogation, I should note one further matter. Prorogation is an act
of the executive acting through the Crown. Parliament has no power to revoke it. This
should be contrasted with Parliament’s going into recess. That is a decision of Parliament
itself, and a recess can be revoked by Parliament at any time. Recesses take place regularly,
for example, during the summer and over the party conference season in the autumn. The
power to reconvene Parliament at any time provides important flexibility. This is absent
from prorogation. This explains in part why prorogation is in practice normally only used
for very short periods, generally to begin a new Parliamentary session.
Previous cases of prorogation
[108] So far as I am aware the prorogation of Parliament has never been the subject of
judicial challenge. Prorogation is used regularly to bring sittings of Parliament to an end
and begin a new session. When that occurs, however, the suspension of Parliament usually
only lasts for a few days. Furthermore, we were not referred to any case where prorogation
was used at a time of acute political controversy in such a way that Parliamentary debate
was suspended for several weeks during a critical period. In my opinion the standard use of
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prorogation to begin a new Parliamentary session is not in any way a precedent for the
prorogation that is now proposed. Occasionally prorogation has been used for other
purposes, to achieve political objectives rather than merely the routine change in sessions of
Parliament. We were referred to one particular example of this, the two prorogations that
occurred in 1948 to enable the Bill that ultimately became the Parliament Act 1949 to pass
through Parliament notwithstanding opposition by the House of Lords. The Bill had been
rejected by the House of Lords, and was likely to be rejected by them on subsequent votes.
At that time, under the Parliament Act 1911, it was only a rejection of a bill by the House of
Lords in three consecutive sessions that permitted use of the Parliament Act procedure to
pass the bill notwithstanding its rejection by the Lords. Prorogation was therefore used to
provide for three sessions of Parliament in quick succession, to enable the Bill to proceed to
Royal assent. The use of prorogation in that way was not challenged in the courts, perhaps
for obvious reasons. What this case illustrates is that the examples where prorogation has
been used for more than formal purposes are highly unusual, and cannot serve as a
precedent for later use of the power.
The government’s decision to prorogue Parliament effected by the Order in Council of 28
August 2019
[109] As already noted, the primary question in the present case is whether the
government’s decision to prorogue Parliament, as effected by the Order in Council of 28
August 2019, was intra vires of the Crown’s prerogative powers, and in particular whether it
was a proper exercise of the power of prorogation. It is a matter of agreement that the
decision to prorogue, although effected by the Crown through an Order in Council, results
from a decision of the government. In considering whether that decision was a proper
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exercise of the power to prorogue, it is essential in my opinion to have regard to the legal
and political context in which it was made.
[110] Central to that context is the notice that has been given by the United Kingdom in
terms of article 50 of the Treaty on the Functioning of the European Union to leave that
body. After extensions, it is now due to take effect on 31 October 2019. The effect of the
decision in R (Miller) v Secretary of State for Exiting the European Union, supra, was that
legislation was required to effect the United Kingdom’s withdrawal from the European
Union, and that was in due course enacted by Parliament, in the form of the European
Union (Withdrawal) Act 2018 (2018 c 16). Section 13 of that act provides that the terms of
any withdrawal agreement between the United Kingdom and the European Union require
Parliamentary approval in order to become law within the United Kingdom. If, however, no
such approval is obtained, the result will be that the United Kingdom’s withdrawal still
takes effect, but without any formal arrangements to govern the future relationship between
the United Kingdom and European Union – on a so-called “no deal” basis. If a withdrawal
agreement is not approved by Parliament, that is the default position.
[111] This is potentially a matter of great importance. The law of the European Union
covers large areas of legal practice. The European Union (Withdrawal) Act provides that EU
legislation will continue in force in the United Kingdom, but of itself that has no effect on the
international relationships of the United Kingdom with the remaining member states of the
EU, and to a considerable extent with third countries, where trading and other relationships
are at present governed by EU treaties. Those international problems cover a number of
important areas of law. These include international trade, financial services, transport,
customs, trading standards (which at present apply internationally), nuclear energy,
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immigration, asylum, criminal justice, particularly in the area of extradition, and the
recognition of foreign judgments and other legal acts.
[112] The United Kingdom government has engaged in negotiations with the European
Union over the terms of a withdrawal agreement, and ultimately concluded such an
agreement in the early part of 2019. For the agreement to take effect, however, it required to
be approved by Parliament. On three occasions Parliament refused to give its approval by
substantial majorities. Notwithstanding those defeats in Parliament the government, with a
new Prime Minister and government, has continued to negotiate with the European Union
over the terms of a proposed withdrawal agreement to take effect after 31 October 2019. The
change of government has been significant, however, because the present Prime Minister
has declared that he would be willing to withdraw from the EU without a withdrawal
agreement, a view that appears to be supported by a majority of his government. His
predecessor, by contrast, had negotiated a withdrawal agreement and focussed on trying to
have that approved by Parliament, although in that she was unsuccessful. Extensive
preparations are currently being made for withdrawal from the EU on 31 October, including
legislation and administrative arrangements to deal with the possibility that the United
Kingdom might leave the EU without any withdrawal agreement. So far those
arrangements, together with the legislation, have been the subject of Parliamentary scrutiny.
The decision to prorogue and parliamentary scrutiny
[113] In these circumstances, it is obvious that the United Kingdom’s withdrawal from the
European Union, and the terms on which that withdrawal is effected, if any, are a matter of
immense national importance. It is therefore not surprising that within Parliament the
matter has been the subject of extensive debate and a great deal of controversy. It has
become apparent that a majority of Members are opposed to the United Kingdom’s leaving
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the EU without a withdrawal agreement. This has resulted in the passing of legislation that
will compel the Prime Minister to seek an extension to the withdrawal process if no
agreement is reached with the EU before 19 October 2019, in the form of the European
Union (Withdrawal) (No 2) Act 2019, which received Royal assent on 9 September 2019.
[114] Apart from legislation, however, it is apparent that the United Kingdom’s
withdrawal from the EU and its future relationship with the EU are the subject of vigorous
debate and controversy. The controversy goes beyond the terms of any withdrawal
agreement or the lack of it. It extends to the arrangements that will be put in place in the
United Kingdom either to implement a future withdrawal agreement or to address the
consequences of withdrawal on a “no-deal” basis. These are themselves complex matters,
and preparations for a “no-deal” withdrawal are widely reported as involving a great deal
of work by the civil service. At such a time Parliament’s second essential constitutional
function, the scrutiny of the executive, is of paramount importance.
[115] The decision to prorogue Parliament was given effect by the Order in Council of 28
August 2019. Its effect is that Parliament will be prorogued from Monday 9 September. A
Queen’s Speech will take place on Monday 14 October. During the intervening period of
five weeks, Parliament will sit on certain days by virtue of provisions of the Northern
Ireland (Executive Formation etc) Act 2019 (c 22), but these are limited in number and are in
any event related to the formation of an executive in Northern Ireland. The effect of
prorogation will accordingly be to prevent Parliament from sitting, except to a very limited
extent, during the five-week period between 9 September and 14 October. The United
Kingdom is due to leave the European Union on 31 October. Consequently the effect of
prorogation is to reduce the sitting time of Parliament by five weeks during the period of
approximately seven weeks between the date when prorogation takes effect and Britain’s
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leaving the EU. That is clearly a material reduction in the time available for Parliamentary
debate. That is so even if the sittings mandated by the Northern Ireland (Executive
Formation etc) Act 2019 are taken into account; these are clearly of limited utility.
[116] The effect of proroguing Parliament is to prevent, or at least to limit severely, the
ability of Parliament to perform its essential function of holding the executive to account.
During a vital period of five weeks Parliament will be prevented from performing that
function. Seven weeks after Parliament is prorogued the United Kingdom is scheduled to
leave the European Union, with or without a withdrawal agreement. Such lack of scrutiny
may be convenient for the government. Nevertheless, it is taking place at a time when
matters of great national importance fall to be decided. It extends over most of the period
during which Parliamentary debate or the questioning of ministers in Parliament might
have a practical effect in relation to the basis of which the United Kingdom might leave the
EU. When regard is had both to the circumstances at the time of prorogation and its
duration, I am of opinion that it is incumbent on the government to show that it has a valid
reason for proroguing Parliament in that manner. In reaching that conclusion, I have
particular regard to the fundamental constitutional importance of Parliamentary scrutiny of
executive action.
[117] Prorogation has the effect of bringing Parliamentary scrutiny to an end, and thus in
the event of challenge any reason for proroguing must be supplied to the court. If no reason
is given, in the present circumstances I am of opinion that the decision to prorogue
Parliament for five weeks out of the seven remaining before the United Kingdom is
scheduled to leave the European Union leads inevitably to the conclusion that the reason for
prorogation was to prevent Parliamentary scrutiny of the government. I find it impossible
to see that it could serve any other rational purpose. The respondent’s pleadings say almost
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nothing about the reason for the prorogation, and the court was not provided with any other
formal statement of the reasons. It was provided, however, with the documentation behind
the decision to prorogue, and I will now consider the reasons disclosed by that
documentation.
The reasons given for prorogation
[118] Three documents were made available. The first is a memorandum from Nikki Da
Costa, the Prime Minister’s Director of Legislative Affairs, dated 15 August 2019. This is set
out in the opinion of your Lordship in the chair. I would draw attention to the following
passage:
“RECOMMENDATION
2. Are you content for your PPS to approach the Palace with a request for
prorogation to begin within the period Monday 9th September to Thursday 12th
September, and for a Queen’s Speech on Monday 14th October?
DEADLINE
3. 16 August – with only two months until 14th October it would be wise to open
discussions this week, with the aim of securing confirmation next week. ...”.
The memorandum goes on to discuss a number of other factors, including political
considerations and precedents for prorogation. Next to the recommendation quoted above
there is a tick and the word “yes”; we were informed that these were written by the Prime
Minister.
[119] The memorandum of 15 August was accompanied by the Prime Minister’s
comments, made on 16 August:
“(1) The whole September session is a rigmarole introduced [redaction] to show the
public that MPs were earning their crust.
(2) So I don’t see anything especially shocking about this prorogation.
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(3) As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days
lost are actually very few”.
The tenor of these comments suggests a desire to excuse the length of the prorogation. It is
perhaps worth observing that the September session is an established feature of modern
Parliamentary procedure. During the period of the party conferences in the early autumn
Parliament goes into recess; it is not prorogued. This means that if necessary it can resume
sitting at any time.
[120] In neither the memorandum nor the Prime Minister’s comments is any actual reason
for the prorogation given other than a desire to begin a new session of Parliament with, as is
customary, a Queen’s Speech in which the government’s legislative programme is set out.
Reference is made to the fact that the legislative programme for the present session of
Parliament is nearly at an end, which would provide a valid reason for starting a new
session. No attempt is made, however, to explain why a prorogation of five weeks is
necessary at a time of acute national controversy. The critical complaint about the
prorogation is not the fact that it occurred; short prorogation is regularly used to start new
Parliamentary sessions. The complaint rather relates to the length of the period during
which Parliament is to be prorogued, without any power to resume sitting during that
period.
[121] The second document made available, also emanating from Nikki Da Costa, is a
memorandum to the Prime Minister dated 23 August 2019 headed “ANNOUNCING THE
QUEEN’S SPEECH”. This document is concerned primarily with the timing of
announcements made in connection with the prorogation and the intention to announce a
new session of Parliament with a Queen’s Speech on 14 October. Attached to it is an annex,
Annex B, which appears to contain text for an announcement by the Prime Minister. In
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Annex B it is stated that Parliament has been in session for an especially long time, 340
sitting days; but that had involved “too much drift for too long”; and that the Prime Minister
intended to bring forward a new legislative agenda for the period before and after leaving
the European Union. The main part of the legislative programme is said to be a Withdrawal
Agreement Bill, and it was intended to have that bill passed before 31 October. Once again,
the tenor of the document suggests that the need for a new legislative programme is being
put forward as the reason for prorogation, but no attempt is made to explain why a
prorogation of five weeks is required for this purpose.
[122] The third document that was made available was the minutes of a Cabinet meeting
held on 28 August. Your Lordship in the chair has set out the terms of this document at
some length. Once again, no reason is given for the length of the period during which
Parliament is to be prorogued. It is noted that the timetable gave Parliament “ample time to
debate Brexit in the period before the October European Council on 17-18 October, and
again in the run up to the UK’s departure date on 31 October”. In relation to those timings,
the available periods are between 14 October, when the Queen’s Speech was to be delivered,
and 17 October. That ignores the fact that discussion of the Queen’s Speech is likely to take
a substantial part of that period. In any event it does not provide any justification as to why
the prorogation requires to start five weeks before that, especially if anything said in
Parliament is to have an effect on the United Kingdom’s negotiating position at the
European Council meeting. Similarly, in relation to the period between the Council meeting
and the date, 31 October, when the United Kingdom is scheduled to leave the European
Union, the time involved is not great, and it is difficult to understand how any debate at that
late stage would have a significant effect on the terms of departure from the EU.
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Conclusion as to the purpose of proroguing Parliament
[123] In my opinion nothing in these documents can be said to provide any rational
explanation as to why Parliament must be prorogued as early as 9 September for a period of
five weeks. Nor has any other explanation been provided for the length of the prorogation,
beyond references to the need to begin a new session of Parliament to promote a new
legislative programme. That, of course, does not explain the length of the prorogation;
merely the fact that prorogation is required. In these circumstances I have come to the
conclusion that the only inference that can properly be drawn on an objective basis is that
the government, and the Prime Minister in particular, wished to restrict debate in
Parliament for as long as possible during the period leading up to the European Council
meeting on 17-18 October and the scheduled date of Britain’s departure from the European
Union.
[124] It would be wrong to speculate as to whether this is because the government wishes
to persuade the European Union to accept a withdrawal agreement that differs from the
agreement previously concluded or whether the government is truly intent on achieving
departure from the European Union without a withdrawal agreement. In either event, the
matter clearly calls for Parliamentary scrutiny. The effect of the prorogation under
consideration, in particular its length, is that proper Parliamentary scrutiny is rendered all
but impossible. As I have noted, I consider that the inference must inevitably be drawn, on a
strictly objective basis, that that was the purpose of the prorogation. In my opinion that is
not a proper purpose for proroguing Parliament. I accordingly conclude that the decision to
prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of
the prerogative power. It follows that the prorogation was ultra vires. In my opinion the
court should pronounce a declarator to that effect.
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[125] Finally, I should express concurrence with the views of your Lordship in the chair on
the question of redaction of documents supplied and the proposition that proroguing
Parliament does not have a direct effect on individual legal rights.