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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CHERRY, (FIRST) JOANNA CHERRY QC MP AND OTHERS FOR JUDICIAL REVIEW [2019] ScotCS CSOH_70 (04 September 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_70.html
Cite as: [2019] ScotCS CSOH_70, 2019 GWD 28-443, [2019] CSOH 70, 2020 SC 13, 2019 SLT 1071
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OUTER HOUSE, COURT OF SESSION
P680/19
[2019] CSOH 70
OPINION OF LORD DOHERTY
In the petition
(FIRST) JOANNA CHERRY QC MP, (SECOND) JOLYON MAUGHAM QC, (THIRD)
JOANNE SWINSON MP, (FOURTH) IAN MURRAY MP, (FIFTH) GERAINT DAVIES MP,
(SIXTH) HYWEL WILLIAMS MP, (SEVENTH) HEIDI ALLEN MP, (EIGHTH) ANGELA
SMITH MP, (NINTH) THE RT HON PETER HAIN, THE LORD HAIN OF NEATH,
(TENTH) JENNIFER JONES, THE BARONESS JONES OF MOULESCOOMB, (ELEVENTH)
THE RT HON JANET ROYALL, THE BARONESS ROYALL OF BLAISDON, (TWELFTH)
ROBERT WINSTON, THE LORD WINSTON OF HAMMERSMITH, (THIRTEENTH)
STEWART WOOD, THE LORD WOOD OF ANFIELD, (FOURTEENTH) DEBBIE
ABRAHAMS MP, (FIFTEENTH) RUSHANARA ALI MP, (SIXTEENTH) TONIA
ANTONIAZZI MP, (SEVENTEENTH) HANNAH BARDELL MP, (EIGHTEENTH) DR
ROBERTA BLACKMAN-WOODS MP, (NINETEENTH) BEN BRADSHAW MP,
(TWENTIETH) THE RT HON TOM BRAKE MP, (TWENTY-FIRST) KAREN BUCK MP,
(TWENTY-SECOND) RUTH CADBURY MP,(TWENTY-THIRD) MARSHA DE CORDOVA
MP, (TWENTY-FOURTH) RONNIE COWAN MP, (TWENTY-FIFTH) NEIL COYLE MP,
(TWENTY-SIXTH) STELLA CREASY MP, (TWENTY-SEVENTH) WAYNE DAVID MP,
(TWENTY-EIGHTH) EMMA DENT COAD MP, (TWENTY-NINTH) STEPHEN DOUGHTY
MP, (THIRTIETH) ROSIE DUFFIELD MP, (THIRTY-FIRST) JONATHAN EDWARDS MP,
(THIRTY-SECOND) PAUL FARRELLY MP, (THIRTY-THIRD) JAMES FRITH MP,
(THIRTY-FOURTH) RUTH GEORGE MP, (THIRTY-FIFTH) STEPHEN GETHINS MP,
(THIRTY-SIXTH) PREET KAUR GILL MP, (THIRTY-SEVENTH) PATRICK GRADY MP,
(THIRTY-EIGHTH) KATE GREEN MP, (THIRTY-NINTH) LILIAN GREENWOOD MP,
(FORTIETH) JOHN GROGAN MP, (FORTY-FIRST) HELEN HAYES MP, (FORTY-
SECOND) WERA HOBHOUSE MP, (FORTY-THIRD) THE RT HON DAME MARGARET
HODGE MP, (FORTY-FOURTH) DR RUPA HUQ MP, (FORTY-FIFTH) RUTH JONES MP,
(FORTY-SIXTH) GED KILLEN MP, (FORTY-SEVENTH) PETER KYLE MP, (FORTY-
EIGHTH) BEN LAKE MP, (FORTY-NINTH) THE RT HON DAVID LAMMY MP,
(FIFTIETH) CLIVE LEWIS MP, (FIFTY-FIRST) KERRY MCCARTHY MP, (FIFTY-SECOND)
STUART C MCDONALD MP, (FIFTY-THIRD) ANNA MCMORRIN MP, (FIFTY-FOURTH)
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CAROL MONAGHAN MP, (FIFTY-FIFTH) MADELEINE MOON MP, (FIFTY-SIXTH)
LAYLA MORAN MP, (FIFTY-SEVENTH) JESS PHILLIPS MP, (FIFTY-EIGHTH) LLOYD
RUSSELL-MOYLE MP, (FIFTY-NINTH) THE RT HON LIZ SAVILLE ROBERTS MP,
(SIXTIETH) TOMMY SHEPPARD MP, (SIXTY-FIRST) ANDY SLAUGHTER MP, (SIXTY-
SECOND) OWEN SMITH MP, (SIXTY-THIRD) CHRIS STEPHENS MP, (SIXTY-FOURTH)
JO STEVENS MP, (SIXTY-FIFTH) WES STREETING MP, (SIXTY-SIXTH) PAUL SWEENEY
MP, (SIXTY-SEVENTH) GARETH THOMAS MP, (SIXTY-EIGHTH) ALISON THEWLISS
MP, (SIXTY-NINTH) THE RT HON STEPHEN TIMMS MP, (SEVENTIETH) ANNA
TURLEY MP, (SEVENTY-FIRST) CATHERINE WEST MP, (SEVENTY-SECOND) MATT
WESTERN MP, (SEVENTY-THIRD) MARTIN WHITFIELD MP, (SEVENTY-FOURTH) DR
PHILIPPA WHITFORD MP, (SEVENTY-FIFTH) DR PAUL WILLIAMS MP, (SEVENTY-
SIXTH) DANIEL ZEICHNER MP, (SEVENTY-SEVENTH) CAROLINE LUCAS MP,
(SEVENTY-EIGHTH) ROSENA ALLIN-KHAN, (SEVENTY-NINTH) LUCIANA BERGER
Petitioners
for
JUDICIAL REVIEW
Petitioners: O’Neill QC, Welsh; Balfour and Manson LLP
Respondent: Johnston QC, Webster QC, N Taylor, Solicitor to HM Advocate General for Scotland
Lord Advocate (intervening party, written submissions only): Mure QC; Scottish Government
Legal Directorate
4 September 2019
Introduction
[1] By an Order in Council made on 28 August 2019 at the Court at Balmoral Her
Majesty the Queen ordered that Parliament be prorogued on a day no earlier than Monday
9 September 2019 and no later than 12 September 2019, until Monday 14 October 2019. This
petition for judicial review challenges (i) the lawfulness of the Order; and (ii) the lawfulness
of the advice to prorogue which was given to Her Majesty by the Prime Minister. It is
common ground that in making the Order Her Majesty accepted that advice.
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[2] I shall not rehearse the earlier history of the proceedings. For that, reference can be
made to my Opinion of 30 August 2019 (Petition of Cherry & Others for Judicial Review [2019]
CSOH 68).
[3] On 2 September 2019 two applications for leave to intervene were lodged, the first by
the Lord Advocate and the second by Mr Graham Senior-Milne. At the outset of the
substantive hearing on 3 September 2019 I invited observations from the parties on each of
the applications. Mr O’Neill supported the proposed intervention by the Lord Advocate,
but he resisted the application by Mr Senior-Milne. Mr Johnston adopted a neutral position
in relation to both applications. Having considered the terms of both applications I was
satisfied that the Lord Advocate’s application was relevant and was likely to assist the court,
and that the other requirements of rule of court 58.19 (4) were met. I granted the
application. However, I was not satisfied that the propositions to be advanced in Mr Senior-
Milne’s application were relevant to the proceedings or that they were likely to assist the
court. I refused that application.
The arguments
[4] Given the desirability of the court reaching a speedy decision, I do not propose to
rehearse the arguments at length, nor do I propose to mention all of the authorities which
were referred to. I shall confine myself to setting out the gist of the parties’ positions.
The Lord Advocate’s written submissions
[5] The executive is accountable to Parliament. The effect of the prorogation is to
insulate it entirely from accountability during the period of prorogation. The relevant
context is (i) that the United Kingdom’s membership of the European Union will end (unless
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the period is extended by agreement between the Government and the EU) some eight
weeks after the date on which prorogation takes effect and less than three weeks after the
prorogation ends; (ii) the Government continues to negotiate with the European Union in
connection with a proposed withdrawal agreement to take effect immediately after exit day;
(iii) the Prime Minister has declared himself content to see the United Kingdom leave the
European Union without having concluded such a withdrawal agreement; (iv) the Prime
Minister’s policy approach to withdrawal from the EU without a withdrawal agreement
being in place is markedly different from that of his predecessor; (v) a majority of members
of the House of Commons has expressed its opposition to that course; (vi) preparations are
being made and will continue to require to be made in anticipation of the withdrawal of the
UK from the EU on 31 October 2019; (vii) those preparations include both administrative
arrangements in anticipation of withdrawal without a withdrawal agreement being in place,
and legislative measures to prepare the statute book for the UK’s withdrawal from the EU;
(viii) Parliament has been engaged in ongoing scrutiny of the arrangements being made by
the Government in anticipation of withdrawal from the EU; (ix) elected representatives in
both the Scottish and UK Parliaments require to participate in the preparation of the statute
book for exit day; and (x) the present administration is a minority Government whose ability
to command the confidence of the House of Commons has not yet been tested. In the
particular context, for the Prime Minister to advise and procure the prorogation of
Parliament for five weeks may properly be characterised as an unlawful abuse of executive
power which calls for the intervention of the Court. The abuse of power lies in the timing
and duration of the prorogation; its effect on accountable government; and the marked
absence of any compelling justification offered in that regard by the Prime Minister for that
timing and length. It may be inferred that a purpose of the decision under review is to
5
insulate the executive from Parliamentary scrutiny, for what (in the context of the
anticipated withdrawal of the UK from the EU on 31 October 2019) is a significant period of
time. In any event, the decision under review has a disproportionate impact on the principle
of responsible government, where there is no compelling justification for that impact. A
prorogation of five weeks is disproportionate to a purpose of bringing the current session of
Parliament to an end and paving the way for a Queen’s speech at the opening of the new
session. There is a significant distinction between such a recess (which is voted upon by
each House and is no more than a periodic adjournment) and prorogation. During such a
recess: (a) either House may be recalled; (b) ongoing Parliamentary business does not fall; (c)
Parliamentary committees may continue to sit and to scrutinise the executive; and (d)
Members of Parliament may continue to table questions to the executive. None of these is
possible during prorogation. In all the circumstances, and in the absence of any other
explanation for the duration of the prorogation, the court may infer that a purpose of the
decision under review is to curtail significantly the opportunity for Parliament to scrutinise
the policies and actions of the executive at this time, and to insulate it entirely from
Parliamentary scrutiny throughout the period of the prorogation. That would not be a
proper purpose of prorogation. The effect which prorogation will have on the principle of
responsible government for five weeks at this time calls for close scrutiny of the justification
which is advanced. Given the particular context, there is a burden on the executive to
provide a clear and compelling justification for a decision to deprive the sovereign UK
Parliament of the ability to sit for a period of five weeks. No such compelling justification
has been advanced. The impact on the principle of representative government is wholly
disproportionate to such justification as has been advanced by the executive. In all these
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circumstances the intervener considers that the Court should reduce the Order in Council
dated 28 August 2019.
The petitioners’ submissions
[6] Mr O’Neill moved the court:
(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:
(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.
He submitted that Parliamentary sovereignty is a fundamental principle of the UK
constitution. The executive must act within the powers permitted it by Parliament, and
must exercise those powers for the purposes for which they were left with it by Parliament.
The prerogative is a source of power which is only available for a case not covered by
statute. The executive’s prerogative power cannot be used to defeat or frustrate domestic
rights which have been created by Parliament. This includes rights under EU law (R (Miller)
The executive is politically accountable to Parliament for its exercise of its powers. If and
insofar as the executive would use the power of prorogation of Parliament to avoid its
political accountability to Parliament, or to impede Parliament from exercising its control
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over the executive, the executive is acting unlawfully. Reference was made to Moohan v Lord
political accountability to Parliament and its legal accountability to the courts are not
mutually exclusive, but complementary constitutional checks on the power of the executive.
Baroness Hale at para 57). It is for the court to ensure the rule of law by providing an
effective remedy against any constitutional violations (Teh Cheng Poh v Public Prosecutor
[1980] AC 458, per Lord Diplock at p 473).
[7] The Claim of Right Act 1689 regulates and constrains the executive’s power to
prorogue Parliament. It outlaws any abusive use by the executive of the power of
prorogation to avoid, impede or restrain Parliament from carrying out its constitutional
function of addressing and redressing grievances and amending, strengthening and
preserving the law. Therefore the exercise of the executive’s power to prorogue Parliament
is a matter which is justiciable before the courts and is reviewable on the grounds of
irrationality or breach of other judicial review principles (Cf R (Sandiford) v Foreign Secretary
[2014] UKSC 44, [2014] 1 WLR 2697, per the joint judgment of Lord Carnwath and
Lord Mance JJSC at paras 50, 52, 65).
[8] The executive’s exercise of the power of prorogation of Parliament can only be
exercised for a proper purpose. The exercise of the power, even for a proper purpose, is
subject to review on ordinary principles of legality, rationality and procedural impropriety
in the same way as any other executive action (R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs [2008] UKHL 61 [2009] 1 AC 453, per Lord Hoffmann at para 35,
Lord Rodger at para 105).
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[9] The executive is subject in the present case to the obligation owed to the court by a
public authority facing a challenge to its decision “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 v Department of
Environment [2004] UKPC 6, [2004] Env LR 38, per Lord Walker of Gestingthorpe at para 86).
The Prime Minister has declined to lodge an affidavit. Accordingly, the court should subject
the reasons given to anxious scrutiny. The executive ought to be required to demonstrate
that the most compelling of justifications exist for the exercise of the prorogation power in
this way and at this time because the manner in which the power is being exercised affects
individuals’ fundamental rights and has profoundly intrusive and distortive effects on the
MR at 554E-G).
[10] It is clear that the executive’s exercise of the power of prorogation in the present case
involves the improper exercise of this power ‘‘for an alien purpose or in a wholly
unreasonable manner’’, namely: to prevent or impede Parliament from 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; to allow the
executive, notwithstanding that it has no Parliamentary mandate to do so, to pursue a policy
of a no deal Brexit without further Parliamentary interference. The executive has purported
to use the power of prorogation as a pre-emptive strike intending to silence and disempower
Parliament for the crucial period in the immediate run up to Exit Day.
[11] Further, the executive’s exercise of the power of prorogation in the present case is
unlawful because it runs contrary to the intention of Parliament by rendering futile, inter
9
alia, the provisions of Sections 9 and 13 of the European Union (Withdrawal) Act 2018 which
clearly provide that Parliament should have proper time and opportunity to give full
consideration to and, if approved, legislate to give full effect to the terms of any withdrawal
of the United Kingdom from the European Union, with or without a deal. When and if
Parliament passes the necessary statute, then and only then does the executive have
authority to effect the withdrawal of the United Kingdom from the EU in accordance with
whatever terms Parliament has stipulated in primary legislation.
[12] The executive’s exercise of the power of prorogation in the present case is vitiated by
error in law, because it is wrongly predicated on the idea that it has the authority to cause or
allow the United Kingdom to leave the EU on the basis of no deal. Primary legislation is
required from Parliament to conclude the Article 50 TEU process by authorising the
executive to end the United Kingdom’s membership of the EU, whether on the basis of the
terms of a concluded deal or on the basis that no agreement on the terms of withdrawal
could ultimately be reached. The executive has not been given the necessary express
statutory authority by Parliament to allow it to pursue a policy of no deal Brexit. Given that
the exercise of the power of prorogation at issue is aimed, at least in part, to facilitate the
achievement, if so advised, of an executive policy (“no deal Brexit”) which is unlawful in the
absence of express statutory authorisation, the exercise of prorogation in this way is itself
unlawful.
The respondent’s submissions
[13] Mr Johnston submitted that there are important differences between statutory and
prerogative powers. The exercise of some prerogative powers is justiciable, but the exercise
of others is not. The court's role in relation to prerogative powers is dependent on the
10
nature and the subject matter of the power or its exercise, particularly on whether the subject
matter is justiciable (R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs
[2014] 1 WLR 2697, per the joint judgement of Lord Carnwath and Lord Mance at paras 52,
60 and 61). Whether the exercise of a prerogative power is reviewable depends on the
subject-matter 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. The courts
will not seek to impose legal controls on such matters. Here the claim is non-justiciable.
There is no statute or source of law that regulates prorogation or the advice given to the
Queen in relation to prorogation. The advice involved high policy and political judgement,
not law. The court does not have the tools or standards to assess the legality of political
advice. This is political territory and decision-making which cannot be measured against
legal standards, but rather only by political judgments. The law does not superimpose on
political considerations additional legal standards. That would make the political process
Lords Neuberger, Sumption and Hodge at para 40; Council of the Civil Service Unions v
Secretary of State for Northern Ireland [2002] UKHL 32, per Lord Bingham at para 12 and Lord
Hoffmann at para 33. The petitioners seek to rely on a denial of “sufficient” time for
“proper” consideration of the withdrawal of the UK from the EU. There are no judicial or
manageable standards by reference to which the court could determine that claim. The
courts are not the right place for matters of high policy and political judgement to be sorted
11
out. Accountability for such matters is to Parliament and the electorate. The very fact that
the court is faced with trying to weigh political judgments and the reasons for which they
were reached suggests that the claim here is outside the territory where legal standards can
helpfully be deployed.
[14] A more specific point which follows on from that is that Parliament has recently, in
the Northern Ireland (Executive Formation etc) Act 2019, s 3, made its own clear and express
provision about when it wishes to sit. It provides in the period covered by that Act (which
goes to the end of this calendar year) that Parliament may be prorogued at some point; and
it makes provision for it to be recalled if that is necessary for a report to be laid about
progress in formation of the Northern Ireland Executive. Where Parliament wishes to lay
down the law about when it should be in session and not prorogued, it has a means of doing
that, and it has recently used that means. Parliament has occupied this area for itself.
[15] Wider constitutional considerations also confirm that decisions about prorogation or
advice about prorogation are not matters for the courts.
[16] Parliament is the master of its own proceedings, rules and privileges and has
exclusive control over its own affairs. The separation of powers entails that the courts will
not interfere. It is for Parliament to decide when it will sit and it routinely does so. It is not
for the courts to devise further restraints on prorogation which go beyond the limits which
Parliament has chosen to provide.
[17] The exercise by the Sovereign of the power to prorogue upon receipt of advice from
the prime Minister is governed by constitutional convention alone. The courts cannot
enforce a political convention. The sanction for non-observance of a convention is political,
not legal.
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[18] There is no material difference between Scots law and English law as regards any of
the issues in the case. The petitioners do not actually identify anything that points to a
difference in result or approach between Scots law and English law.
[19] Second, the claim is academic. The complaint is that Parliament is going to be
denied the opportunity to sit and to call the executive to account. However, provision has
already been made to enable Parliament to sit for certain periods up to the end of October -
in the Northern Ireland (Executive Formation etc) Act 2019, s 3 and in the Order in Council.
That being so, Parliament will be sitting. That renders the claim an academic one.
[20] Third, the claim that the Claim of Right Act 1689 is breached by the Order in Council
is non-justiciable. The words "Parliaments be frequently called and allowed to sit" provides
no legal limit or standard by which the court can judge the legality of any prorogation. Even
if there were some legal standard, there is nothing to support any breach of this provision,
because the words "Parliaments be frequently called and allowed to sit" contemplate
Parliament being adjourned, prorogued, dissolved - certainly not sitting in permanent
session. Any prorogation before the end of October must comply with section 3 of the
Northern Ireland (Executive Formation etc) Act 2019. Any prorogation that cut across the
dates set out there would need to be interrupted.
[21] Prorogation does not frustrate the will of Parliament as expressed in the primary
legislation relied upon by the petitioners. It is not the purpose of prorogation to frustrate
s 13 of the European Union (Withdrawal) Act 2018. In any case, s 13 doesn’t apply to exit
without a deal. Neither does prorogation cut across s 20, or the provisions of s 3 of the
Northern Ireland (Executive Formation etc) Act 2019.
[22] The application is not concerned with the legal requirements of exiting the EU under
Art 50 of the Treaty on European Union. It is concerned with prorogation of Parliament.
13
The fact Parliament may not be sitting for five weeks does not of itself have any direct effect
on individuals' EU law rights. It is not correct to say that it is unlawful for the United
Kingdom to leave the EU with no deal unless there is further legislation. Section 1(1) of the
European Union (Notification of Withdrawal) Act 2017 provided the requisite legislative
authority for the Prime Minister to notify the intention of the UK to withdraw from the EU
under Article 50(2). On 29 March 2017 the Prime Minister formally notified the EU of the
UK’s intention to withdraw under Article 50(2), and the European Council accepted that
notification. Withdrawal from the EU has therefore been approved by Parliament in the
unconditional form of the 2017 Act, enacted in the knowledge and understanding of the
meaning and effect of Article 50 TEU, that with or without an agreement the UK would exit
the EU upon the expiry of the Article 50 period. Withdrawal from the EU without an
agreement would not, in those circumstances, be contrary to Miller and would not, as the
petitioners maintain, require further primary legislation.
[23] While in accordance with the duty of candour the respondent had disclosed
the documents showing reasons for the advice, the respondent's position is that
the advice is non-justiciable and the courts should not enquire into the reasons
or scrutinise their adequacy. However, the reasons are lawful, relevant and legitimate.
Decision and reasons
Introduction
[24] This part of my opinion is shorter than it would have been had I had the advantage
of greater time to prepare it. Nevertheless, I have endeavored to outline briefly my views on
the material issues. I have sought to explain why it is that the parties have won or lost.
Once again, I am grateful to counsel and those instructing them for all that they have done
14
to facilitate the presentation of arguments at the hearing yesterday. That has been of
considerable assistance to me.
Is the issue raised justiciable?
[25] In my opinion the authorities discussed during the submissions vouch the following
propositions. The exercise of some prerogative powers in some circumstances is justiciable,
in other cases it is not. The court's role in relation to prerogative powers is dependent on the
nature and the subject matter of the power or its exercise, particularly on whether the subject
matter is justiciable. Whether the exercise of a prerogative power is reviewable depends on
the subject-matter 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 court does 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 judgments. The courts will not seek to
superimpose legal controls on such matters. Rather, the accountability for them is to
Parliament and the electorate.
[26] I am not persuaded that any of the matters relied upon by the petitioners or the Lord
Advocate result in the claim being justiciable. In my view the advice given in relation to the
prorogation decision is a matter involving high policy and political judgement. This is
political territory and decision-making which cannot be measured against legal standards,
but only by political judgements. Accountability for the advice is to Parliament and,
ultimately, the electorate, and not to the courts.
[27] I do not accept the submission that the prorogation contravenes the rule of law, and
that the claim is justiciable because of that. In my opinion there has been no contravention
15
of the rule of law. The power to prorogue is a prerogative power and the Prime Minister
had the vires to advise the sovereign as to its exercise. The executive is accountable to
Parliament and the electorate for the advice to prorogue.
[28] Parliament is the master of its own proceedings, rules and privileges and has
exclusive control over its own affairs. The separation of powers entails that the courts will
not interfere. It is for Parliament to decide when it will sit and it routinely does so. It is not
for the courts to devise further restraints on prorogation which go beyond the limits which
Parliament has chosen to provide. Parliament can sit before and after the prorogation. It
has recently, in the Northern Ireland (Executive Formation etc) Act 2019, s 3, exercised its
legislative power to make provision about periods when it should sit.
[29] That is sufficient to dispose of the petition. However, since the matter may go
further I shall also provide my views on other issues which were raised.
Breach of the Claim of Right Act 1689?
[30] I see some force in Mr Johnston’s submission that the claim that the Claim of Right
Act 1689 is breached by the Order in Council is non-justiciable. However, I prefer to decide
this issue on the more straightforward ground that there is nothing to support any breach of
the provisions of the Act. I accept Mr Johnston’s submissions on that point.
Does prorogation frustrate the will of Parliament by rendering existing legislation futile?
[31] In my opinion Mr Johnston’s legal analysis of the legislative provisions upon which
Mr O’Neill relied is also correct. Prorogation does not render those provisions futile.
The other matters discussed
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[32] Given that the two bulwarks of the petitioners’ argument that prorogation is
unlawful are not made out (ie because it was said to be in breach of the Claim of Right Act
1689 and that it rendered some existing legislation futile), I do not think it necessary to say
much about any of the other matters which were discussed. None of the matters founded
upon by the petitioners or the Lord Advocate cause me to conclude that prorogation is
unlawful if, contrary to my view, the claim is justiciable.
[33] I am not much attracted to Mr Johnston’s submission that the petitioners’ claim is
academic. However, I am inclined to agree with him that the application is concerned with
prorogation, not with the legal requirements of exiting the EU under Art 50 of the Treaty on
European Union; and that the fact Parliament may not be sitting for five weeks does not of
itself have any direct effect on individuals' EU law rights. I am also inclined to agree with
his analysis of Miller and the consequences of the subsequent legislation.
[34] Finally, I should say something about the reasons for the prorogation given by the
respondent. Even if, contrary to my view, the claim is justiciable, in my opinion the context
in which those reasons would fall to be assessed would be that political judgements may be
relevant and legitimate considerations. On the basis of the material which I have seen I am
not persuaded that the reasons for the advice were unlawful.
Disposal
[35] I shall refuse the petition.