Reclaiming Motion By Joanna Cherry Qc Mp And Others Against The Advocate General

JudgeLord Drummond Young,Lord Brodie,Lord President
Neutral Citation[2019] CSIH 49
Date11 September 2019
Docket NumberP680/19
CourtCourt of Session
Published date12 September 2019
[2019] CSIH 49
Lord President
Lord Brodie
Lord Drummond Young
in the reclaiming motion by
Petitioners and Reclaimers
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
[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
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.
[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
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

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