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, [2014] 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)
R (Miller) and others v The Prime Minister [2019] EWHC 2381 (QB)
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.
The Arguments
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 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.
What next?
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.”
Further reading
For readers wanting a more detailed history of Justiciability, I commend Lord Mance’s speech given at Middle Temple Hall on 27 November 2017.
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I would like to know why the courts, knowing that the case was already being reviewed by another courts, did not order a stay of proceedings. In particular, the English Court went ahead when an appeal had been made to the Scottish Court of Session. Should the English High Court have not ordered a stay of proceedings and let the higher Court of Session make its determination?
One would expect, where the case is basically the same, that the Court where the first case is brought to continue with the case?
In matters of crime could the police/prosecution for exemple bring proceedings in three or four different courts simultaneously (if the crime was national in scope)?
Thanks for this educative piece that has helped me to grasp the issue of prorogation and its lawfulness.
I agree with what you say, Jonathan Eewards. But there remains a real problem if courts in Scotland or Northern Ireland feel free to depart from previous decisions of the courts of England & Wales on the same issue concerning the consitutionality of UK govt affairs (here, Miller #2). And, you might say, vice versa. Perhaps principles of res judicata and issue estoppel do not quite do the work, but conflicting decisions on the same point are surely very unsatisfactory. As indeed is forum shopping on such issues.That is much to be said for Lord Sumption’s view that the courts in (all UK jurisdictions) should in any event stay out of politics.
Since writing the query on the possible relevance of article 11 of the ECHR I have noticed the exception in s.6(3) for “a person exercising functions in connection with proceedings in Parliament”. At first sight this looks fatal to an argument under the Act (as opposed to the Convention itself) but might it be argued that a person who is fraudulently suspending Parliament for an improper purpose, giving a false reason, is not exercising functions in connection with proceedings in Parliament but simply abusing power for his or her own purposes? A bank manager would not be exercising functions in connection with bank proceedings when fraudulently transferring money into his or her own account. In interpreting any legal rule an exception for fraud should readily be implied. If it is possible to interpret s.6 in this way then could it be argued that s.3 (so ar as possible legislation to be interpreted in a way which is compatible with the Convention rights) requires it to be interpreted in this way? Maybe all this is a bit far fetched but, on the other hand, an improper suspension of Parliament by the Executive does look just like the sort of abuse of power the Convention was designed to prevent.
Thanks @JonathanEdwards & @Brexhausted for your thoughts – I do indeed seem to have answered my own question. To be clear, I am no way saying English courts are somehow ‘better’ than Scottish ones, or that Brexit doesn’t have a significant impact on all the constituent nations of the United Kingdom. My question was purely procedural. Arguably, you could say the matter originated in Scotland, as it was Jacob Rees-Mogg who was sent up to Balmoral, to give the prorogation advice to the Queen. However, whatever your views on the merits of this case, it does seem to be somewhat duplicative to have needed to have brought the action in four separate nations, given that they would all end up in the UK Supreme Court anyway. But there we go, another example of Brexit consuming intellectual and economic resources, and testing the foundations of our unwritten constitution!
How does prorogation secure a general election?
Could it not be argued that article 11 of the ECHR, incorporated into UK laws by the Human Rights Act 1998, is relevant here? It guarantees freedom of assembly. There is no more important assembly in a democratic country than the elected Parliament and there can be no more flagrant abuse by the Executive of the right to freedom of assembly than closing down Parliament because it is being or might be a nuisance to the Executive.
Thanks for the comments everyone. Thomas, I think that the most recent two comments are correct, it’s just as much an issue for Scotland as England and Wales, so why not.
Just to respond to one comment you made: “Those pursuing the action seem to have adopted a ‘throw the kitchen sink at it’ approach” – the claimants in the two cases are not the same people. If you were to try to bring parallel proceedings in E/W and Scotland – you would I imagine be liable to be struck out of one of the two as an abuse of process.
Jonathan, thanks for the Welsh perspective! Hope you noticed I managed to avoid referring to the EWHC decision as “the English judgment” 😊
Thanks to Jo Moore and COR for this, especially the link to lecture by Lord Mance. The answer for Thomas Mason is that we are not talking ‘devolved’ here. We are talking about a UK problem involving the UK Parliament and UK citizens, the leading ones being Scots. The law on Judicial Review of the UK parliament is (pretty much) not devolved. A Scot who wants JR in Scotland goes to a Scottish Court. It is not necessary to say the Scot “you can only do this in the Royal Courts in the Strand” because you can seek a JR in any UK Court. It just depends on which ones do JRs. Could be the RCJ or Manchester, or Cardiff for us Welsh. It helped that the Scottish Court was actually open for business in August. I admit, you are likely to get a different mood in Edinburgh because our fellow UK citizens in Scotland voted Remain. Though this didn’t work at first instance in Edinburgh, did it. As a Welsh lawyer, I have to warn people in England about treating Scottish (or Welsh) Courts as somehow on a lower level, as you are in danger of doing, TM. They are not in law. You may think they’re rubbish in non-legal ways, but we can sort that out at Twickenham!
@Thomas Mason – I would say that you are correct that there is no UK-wide court of first instance (although there are specialist tribunals which operate across the UK) and that is the reason that the claims were brought in the courts of England and Wales, Scotland and Northern Ireland respectively.
In response to your question ‘why Scotland?’ – why not? Brexit, and the prorogation of the British Parliament, is as much a Scottish issue as an English (and indeed a NI) issue. Just because Parliament sits in England doesn’t make it solely English…
This is a very good dissection of judicial review of political decisions in general, and it would appear to make sense that quite a high bar has to be met (but that in this case it conceivably might have been). However, what no analysis has so far told me is why is this case justiciable IN SCOTLAND? It’s not a devolved matter, and indeed is about whether advice given by a UK prime minister deliberately stymied the Westminster Parliament.
I can understand why this case would ultimately end up in the UK Supreme Court, but assuming the decision is justiciable, where is the appropriate place to commence an action? Those pursuing the action seem to have adopted a ‘throw the kitchen sink at it’ approach by commencing simultaneous cases in any many places as possible. But I am still puzzled why it’s specifically the initial concern of a Scottish court… perhaps because there’s no such thing as a UK-wide court of first instance??
An answer would be much appreciated, many thanks!
Parliament, refusing to correct matters with a General Election, is no longer properly (explained below) representative of the people as claimed in their challenge.
A group of Conservative Party Members now oppose the Government and, going against the Party Manifesto upon which they were elected, and together with the House Opposition, dictate to a now impotent Government which can no longer effectively exercise the peoples rightful expectation of properly constituted cross bench Government control.
Indeed, they seek the absolute and unfettered power of being both Parliament and the Government, which I consider to be an exceptionally “egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”
Did the Scottish Court not consider that Prorogation, following repeated requests for a General Election, was perhaps the only way left for this minority Government to do the generally accepted right thing and secure a proper and constitutional General election?