A Tale of Two Judgments: Scottish Court of Session rules prorogation of Parliament unlawful, but High Court of England and Wales begs to differ
11 September 2019
The Scottish Court of Session (Inner House) today ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. The High Court of England and Wales today handed down its judgment on the same issue – and came to the opposite conclusion.
How can these two conflicting judgments be resolved? They can’t, so it’s off to the Supreme Court on 17 September.
Before we delve into the decisions of both courts, a reminder of some of the key issues:
Prorogation: The act of discontinuing a parliamentary session, until the State Opening of Parliament which commences the next session. It is unlike recess, which is a break in the parliamentary session when parliamentary business is merely suspended, and MPs can be more easily recalled if required. It is also unlike dissolution, which occurs before an election and mean that every MP must re-stand for election.
When Parliament is prorogued, all business comes to an end. Bills which remain in progress (i.e which have not become law) lapse and must be restarted when Parliament is re-opened.
The Prime Minister decided on 28 August 2019 to advise the Queen to prorogue Parliament. An Order in Council was made that day by the Queen, effecting the Prorogation. Parliament was prorogued on 9 September 2019, and – as it stands – will not sit again until 14 October 2019.
Justiciability: The concept of a matter being susceptible to, and capable of, review by the courts. ‘Non-justiciability’ encompasses a number of principles. In Shergill v Khaira,  UKSC 33 the Supreme Court has distinguished two categories of non-justiciability, (1) issues with no basis in domestic law and (2) issues in respect of which judicial restraint will be exercised, due to the separation of powers and judicial competence. The latter is in issue in these cases. Political questions, and certain matters involving the exercise of the Royal Prerogative, are often argued (and held) to be beyond the reach of judicial review. Recent decisions show that the concept is not absolute, even with regard to prerogative powers.
The High Court – Miller (No. 2)
The High Court heard a challenge to prorogation brought by Gina Miller on 5 September 2019, supported by a number of interveners. The matter was heard by a heavyweight bench, comprising the Lord Chief Justice Lord Burnett, Sir Terence Etherton, Master of the Rolls, and Dame Victoria Sharp, President of the Queen’s Bench Division.
Ms Miller’s challenge was to the advice given by the Prime Minister to the Queen to prorogue Parliament, said to be an abuse of power and contrary to the principle of Parliamentary Sovereignty. The claimant noted the unusually long period of prorogation and its timing, occurring shortly before the UK is scheduled to leave the EU, with no terms of withdrawal.
It was argued that prorogation would seriously impede Parliament’s power, and that this could not be justified, even given the Prime Minister’s broad discretion in such matters. Further, the PM’s decision was said to have been “substantially influenced by a wholly extraneous and improper consideration”: the desire to hinder Parliament in enacting legislation to prevent a ‘no deal’ Brexit.
As to justiciability, the Claimant argued that the fact that the source of a power is the prerogative does not exclude judicial scrutiny, rather the question is whether there are appropriate legal or judicial standards for the court to apply. It was submitted that in any event, an otherwise well-founded claim should only fail for lack of justiciability in exceptional circumstances, and that this was not such a case.
The Prime Minster, represented by Sir James Eadie QC, responded by first asserting that the issue was not justiciable. While acknowledging that prerogative acts have been subject to judicial review (see Miller No. 1), that case impinged on individual rights. As the prorogation of Parliament is inherently political, it is not justiciable – there are no judicial or manageable standards to test its lawfulness and it would not be constitutionally appropriate for the courts to intervene.
The Defendant referred to the ‘Benn bill’ (the European Union (Withdrawal) (No. 6) Bill), which passed through both Houses in three days, to undermine the Claimant’s argument that Parliament had been disabled from legislating on Brexit.
For those of you who were not watching from the public gallery, Joshua Rozenberg’s thread covers the day’s arguments in admirable detail and concision: https://threadreaderapp.com/thread/1169535078646595584.html
The High Court’s decision
The Divisional Court delivered a single judgment. The claim fell at the first hurdle, with the Court concluding that the claim was not justiciable.
While recognising that actions of the Executive carried by out by way of the exercise of the prerogative are not inherently non-justiciable, the judgment also recalls the courts’ well-established refusal to review political decisions [§§43-50]. The decision to prorogue Parliament and the advice accordingly given
were inherently political in nature and there are no legal standards against which to judge their legitimacy [§51].
The Claimant had sought to argue that the duration of prorogation was excessive, and that it can be reasonably inferred that it was motivated or influenced by a desire to prevent or frustrate Parliament from passing legislation to prevent a No-deal Brexit [§52]. The former Prime Minister, Sir John Major, intervening, observed the distinction between prorogation and recess, the latter allowing legislation to continue and MPs to be recalled [§53].
The Court could not accept these arguments due to the lack of any measure by which to assess the lawfulness of the length of a prorogation (§54, 56). Moreover, the submission that Parliament would not have time to hold the Government to account was rejected. The Court could not assess any measurable standard for how much time is required to do so. Further, the passage of the Benn bill highlighted the speed with which Parliament can sometimes act:
The ability of Parliament to move with speed when it chooses to do so was illustrated with clarity and at the same time undermined the underlying premise of the cases advanced by both the claimant and the interveners, namely that the prorogation would deny Parliament the opportunity to do precisely what it has just done. [§57]
Finally, the Court declined to accept the Claimant’s broad description of Parliamentary Sovereignty.
In the first place, alongside the principle of Parliamentary Sovereignty, the separation of powers, reflecting the different constitutional areas of responsibility of the courts, the Executive and Parliament, is also a fundamental principle of our unwritten constitution [§60].
The decision to prorogue was political, prorogation has a number of purposes, and there are in any event no measurable standards by which a court can assess the decisions in question [§60]. Standing Orders elaborate the procedural relationship between two branches of the state: the Executive and Parliament, and this is
a territory into which the courts should be slow indeed to intrude by recognising an expanded concept of Parliamentary Sovereignty [§64].
The claim for judicial review was accordingly dismissed, but with permission granted to appeal directly to the Supreme Court.
The Inner House of the Court of Session — Cherry and Ors
Joanna Cherry QC MP and others for Judicial Review
Like Miller (No. 2), the Scottish case was a challenge to the Prime Minister’s advice to the Queen that Parliament should be prorogued from a day between 9 and 12 September until 14 October.
Unlike Miller however, the Scottish case was itself an appeal from a decision of the Outer House, which on 4 September 2019 had refused permission for judicial review. The Lord Ordinary dismissed the petition, finding that the PM’s advice on prorogation was, as a matter of high policy and political judgement, non-justiciable [§26]. There were no legal standards by which the courts could assess the decision [§26]. Even if this was wrong, Lord Doherty added, he was not persuaded, on what he had seen, that the reasons for the advice were unlawful [§34].
The appeal was heard on 5-6 September. The full judgment is not due to be handed down until midday on 13 September, but not wanting to leave us in suspense the Court of Session has now published a helpful summary of the decision.
The Inner House ruled that the PM’s advice to the Queen was unlawful because it had the purpose of stymying Parliament.
The Inner House unanimously decided that the advice was justiciable. While noting that advice given under the royal prerogative is not justiciable under the normal grounds for judicial review, Lord Carloway decided that where the purpose of the advice was to impede parliamentary scrutiny (a central tenant of democracy and the rule of law), the courts were permitted to declare it unlawful. Lord Brodie agreed that where the purpose was the frustration of Parliament, it was open to the courts to assess lawfulness. The summary suggests that Lord Drummond Young went even further, determining that
the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. (emphasis added)
As to the lawfulness of the advice itself, all three First Division judges agreed that the prorogation was unlawful. The circumstances of the advice (presumably, the timing and length of the prorogation and the issues before Parliament at the time), as well as certain documents produced by the Prime Minister, showed that the true reason for prorogation was interfering with parliamentary scrutiny of the executive. Lord Brodie (it is summarised) described this as an
egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.
Regarding the documents before the Court which led to its conclusion on the true reasons for prorogation, readers may be interested in David Allen Green’s article ‘The curious incident of the missing witness statement’, cited in Parliament by Joanna Cherry QC MP herself on 9 September.
The spectacle of three senior Scottish judges effectively finding that the Prime Minister misled the Queen about the purposes of prorogation is an extraordinary event, whatever the decision of the Supreme Court. What this means remain to be seen.
The Court accordingly made an Order declaring that the Prime Minister’s advice to the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.
Both decisions will be appealed to the Supreme Court, which is to hear both appeals in one go on 17 September 2019.
The hearing will be live streamed on www.supremecourt.uk, perhaps a welcome tonic for those readers already missing binge-watching BBC Parliament.
In the meantime, in light of the Scottish court ruling that prorogation was unlawful, Nicola Sturgeon, First Minister of Scotland, has tweeted that “Parliament must be recalled immediately to allow the essential work of scrutiny to continue.” Meanwhile, a spokesperson for the Speaker of the House of Commons has apparently declared that “Any decision to accelerate the meeting of Parliament during prorogation is a matter for the government.”
For readers wanting a more detailed history of Justiciability, I commend Lord Mance’s speech given at Middle Temple Hall on 27 November 2017.