Cherry and Others v Advocate General for Scotland

JurisdictionScotland
JudgeLord Doherty
Judgment Date04 September 2019
Neutral Citation[2019] CSOH 70
Docket NumberNo 2
CourtCourt of Session (Outer House)
Date04 September 2019

[2019] CSOH 70

Outer House

Lord Doherty

No 2
Cherry and Others
and
Advocate General for Scotland
Cases referred to:

A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68; [2005] 2 WLR 87; [2005] 3 All ER 169; [2005] HRLR 1; [2005] UKHRR 175; 17 BHRC 496; [2005] Imm AR 103; 155 NLJ 23; 149 SJLB 28; The Times, 17 December 2004; The Independent, 21 December 2004

Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6; [2004] Env LR 38

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174; [1984] 3 All ER 935; [1985] ICR 14; [1985] IRLR 28; 82 LSG 437; (1984) 128 SJ 837

Moohan v Lord Advocate [2014] UKSC 67; 2015 SC (UKSC) 1; 2015 SLT 2; [2015] AC 901; [2015] 2 WLR 141; [2015] 2 All ER 361

R v Ministry of Defence, ex p Smith [1996] QB 517; [1996] 2 WLR 305; [1996] 1 All ER 257; [1996] ICR 740; [1996] IRLR 100; 8 Admin LR 29; [1996] COD 237; (1995) 145 NLJ 1689; The Times, 6 November 1995; The Independent, 7 November 1995

R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453; [2008] 3 WLR 955; [2008] 4 All ER 1055; 105 (42) LSG 20; 158 NLJ 1530; 152 (41) SJLB 29; The Times, 23 October 2008

R (on the application of Barclay and anr) v Lord Chancellor and ors (No 2) [2014] UKSC 54; [2015] AC 276; [2014] 3 WLR 1142; [2015] 1 All ER 429; The Times, 27 October 2014

R (on the application of McClean) v First Secretary of State [2017] EWHC 3174; [2018] 1 Costs LO 37

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61; [2017] 2 WLR 583; [2017] 1 All ER 593; [2017] NI 141; [2017] 2 CMLR 15; [2017] HRLR 2; The Times, 25 January 2017

R (on the application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697; [2014] 4 All ER 843; [2014] HRLR 21; The Times, 25 July 2014

R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409; [2008] ACD 70; 105 (26) LSG 22

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32; [2002] NI 390; The Times, 26 July 2002; The Independent, 4 November 2002

Shergill v Khaira [2014] UKSC 33; [2015] AC 359; [2014] 3 WLR 1; [2014] 3 All ER 243; [2014] PTSR 907; [2014] WTLR 1729; 17 ITELR 700; The Times, 18 June 2014

Teh Cheng Poh v Public Prosecutor, Malaysia [1980] AC 458; [1979] 2 WLR 623; [1979] Crim LR 180; (1981) 125 SJ 16

Administrative law — Judicial review — Prorogation of Parliament — Advice by the Prime Minister to sovereign to prorogue Parliament for five weeks — Whether unlawfully curtailing the constitutional functions of Parliament — Whether justiciable

Joanna Cherry QC MP and 78 others presented a petition for judicial review, seeking remedies concerned with the potential prorogation of Parliament in terms of an Order in Council made by Her Majesty the Queen, on 28 August 2019, that Parliament be prorogued no earlier than 9 September 2019 and no later than 12 September 2019, until 14 October 2019.

On 30 August 2019, following an urgent hearing the previous day, the Lord Ordinary (Doherty) refused the petitioners' motion for interim suspension of the Order in Council, and interim interdict against implementing the Order or otherwise advising Her Majesty the Queen to prorogue Parliament before 31 October 2019 ([2019] CSOH 68).

An expedited substantive hearing on the petition took place on 3 September 2019. The Lord Advocate was permitted to intervene by way of written submission.

The European Union (Notification of Withdrawal) Act 2017 (cap 9), sec 1(1), provides that the Prime Minister may notify, under Art 50(2) of the Treaty on European Union (2012/C 326/01), the United Kingdom's intention to withdraw from the European Union.

The European Union (Withdrawal) Act 2018 (cap 16), sec 9(1), provides for the making of regulations on or before ‘exit day’ for the purposes of implementing a withdrawal agreement, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union. Section 13(1) further requires parliamentary approval of any withdrawal agreement by, inter alia, the passing of an Act of Parliament containing provision for the implementation of the withdrawal agreement.

The Northern Ireland (Executive Formation etc) Act 2019 (cap 22), sec 3, provides for the making of reports to Parliament on progress towards the formation of an executive in Northern Ireland, and for the meeting of Parliament in compliance with such requirements, notwithstanding that Parliament may stand prorogued at the relevant time.

The Treaty on European Union, Art 50(2), provides that the European Union shall negotiate and conclude an agreement with the withdrawing state concerning “arrangements for its withdrawal, taking account of the framework for its future relationship with” the European Union. Article 50(3) provides that the EU Treaties will cease to apply to the withdrawing state when such a withdrawal agreement enters into force, or two years (or such extended period) from the date of notification.

On 31 October 2019, the United Kingdom having notified its intention to withdraw from the European Union, and in the absence of a concluded withdrawal agreement or further extension of time, the EU Treaties would cease to apply to the United Kingdom.

On 28 August 2019, following the advice of the Prime Minister, Her Majesty the Queen ordered that Parliament be prorogued from a day no earlier than 9 September and no later than 12 September 2019, until 14 October 2019.

The petitioners challenged the lawfulness of the Order in Council, and the lawfulness of the Prime Minister's advice to the sovereign. They submitted that the Claim of Right 1689 (c 28) regulated the executive's power to prorogue Parliament, and outlawed its abusive use to avoid, impede or restrain Parliament from carrying out its constitutional function. The power could not be used to defeat or frustrate domestic rights created by Parliament, including rights under EU law, and its exercise was unlawful in so far as the purpose was to avoid political accountability to Parliament. The executive was legally accountable to the courts as an effective remedy against any such constitutional violations. The executive's exercise of the power of prorogation was subject to review on ordinary principles of legality, rationality and procedural impropriety. In the present case, the power had been exercised for an improper purpose, to silence and disempower Parliament during the crucial period towards the anticipated exit of the United Kingdom from the European Union, in pursuit of an executive policy of leaving without a withdrawal agreement with the European Union, contrary to the intention of Parliament. The exercise of the power was also vitiated by error of law, as the executive did not have the authority to cause or allow the United Kingdom to leave the European Union without a withdrawal agreement in the absence of express statutory authorisation.

The Lord Advocate, intervening in support of the petitioners, submitted that the effect of the prorogation was to insulate the executive entirely from accountability to Parliament during the period of prorogation. In the circumstances, having regard to its timing and duration, and the absence of any compelling justification, for the Prime Minister to advise and procure the prorogation of Parliament was an unlawful abuse of executive power which called for the intervention of the court. A prorogation of five weeks was disproportionate to a purpose of bringing the current session of Parliament to an end in order to pave the way for a Queen's Speech at the opening of the new session, and the Order in Council ought to be reduced.

The respondent submitted that the court's role in relation to prerogative powers depended on the nature and subject-matter of the power or its exercise, and whether the subject matter was justiciable. The petitioners' claim was non-justiciable, as no statute or source of law regulated prorogation or advice given to Her Majesty in relation thereto, and such advice involved high policy and political judgement, not law. There were no judicial or manageable standards by reference to which the court could determine whether Parliament had sufficient time for proper consideration of the withdrawal of the United Kingdom from the European Union. The accountability of the executive for political and policy matters was to Parliament and the electorate. More specifically, Parliament was the master of its own proceedings, and had made clear and express provision for when it wished to sit by virtue of the Northern Ireland (Executive Formation etc) Act 2019. For the same reason, the petitioners' claim was academic in so far as Parliament would be sitting during the specified periods. The separation of powers entailed that the courts ought not to devise further restraints on prorogation, which went beyond the limits provided by Parliament itself. Moreover, the exercise of the power to prorogue was governed by constitutional convention, which could not be enforced by the courts. In any event, the prorogation did not frustrate the will of Parliament and did not have any direct effect on individuals' EU law rights. Further, sec 1(1) of the European Union (Notification of Withdrawal) Act 2017 provided the requisite legislative authority for withdrawal, with or without an agreement, on expiry of the Art 50 period.

Held that: (1) while the exercise of some prerogative powers in some circumstances was justiciable, whether the exercise of a prerogative power was reviewable by the court was dependent upon...

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