The legal challenge to proroguing Parliament: what is happening in the Scottish Courts?

United Kingdom

The Court of Session in Edinburgh was in the headlines last week, as an urgent application for interim orders was brought in the court on Thursday 29 August 2019 concerning the UK Ministers’ advice to Her Majesty, the Queen, to prorogue the UK Parliament. This arose in relation to the ongoing judicial review of the Government’s ability to prorogue Parliament brought at the instance of a group of MPs, including Joanna Cherry QC MP, the Justice and Home Affairs spokesperson for the SNP at Westminster. Following the Queen’s signing of an Order in Council authorising the prorogation of Parliament, an urgent motion was brought seeking to suspend the prorogation. Although the motion for interim orders was refused by Lord Doherty last week, the judicial review has been accelerated and will now proceed to a full hearing on Tuesday 3 September 2019.

Given its constitutional importance, and in anticipation that this matter may swiftly proceed to appeal by the Inner House of the Court of Session and potentially also the UK Supreme Court, a team of Scottish solicitors from CMS will be live blogging the hearing on Tuesday 3 September 2019 for the UKSC Blog here.

Often referred to as the “Cherry case”, what is the case about and what might its effects be?

Background to the case

In July 2019, Cherry QC MP and others commenced a judicial review, invoking the constitutional jurisdiction of the Court to determine whether a prorogation of the UK Parliament, in the current circumstances of the UK’s impending exit from the EU on 31 October 2019, would be unlawful. A copy of the petition is available publicly here. The petition was however overtaken by political events last week; following advice tendered by the Government, the Queen signed the Order in Council allowing for the prorogation.

In response a motion was urgently lodged with the Court of Session for interim interdict against any Minister of the Crown taking any steps to implement the Order in Council and interim suspension of that Order: a hearing was convened before the court within 24 hours of the Order being signed.

The arguments heard

The petitioners submitted to Lord Doherty that the advice tendered to the Queen was unlawful and that it was the court’s duty to provide an effective remedy, in order to ensure that the rule of law was maintained. They argued that the ultimate purpose of the Order was motivated by a desire by the Government to constrain Parliament in its duties to hold the government to account so as to ensure that the UK leaves the EU on 31 October 2019, with or without a deal. As such, the decision of the Queen to follow the advice was “unlawful, unwarranted and unconstitutional”, was justiciable and capable of review by the court notwithstanding its political backdrop and motivation. It was further said that although the advice had been acted upon, this did not prevent the court’s intervention. The power of prorogation, it was submitted, cannot be used abusively and unconstitutionally.

Described as a “once in a generation case”, for which there is no direct legal precedent, the petitioners urged the court to review matters with an “anxious and profound degree of scrutiny”. It was submitted that there is a fundamental error in law to assume that the Government is permitted to leave the EU without a deal, and that the intention behind the prorogation was to subvert Parliament’s authority over this matter.

In response, the UK Government argued that the petitioners had failed to set out the necessary prima face case required for interim interdict and had also failed to discharge the balance of convenience test. It was argued that these fundamental questions, of the greatest constitutional importance, were also, in any event, unsuitable to be answered at this interim hearing, when a full substantive hearing was fixed for the following week. The order, having already been signed by the Queen, meant that the matter was not justiciable, and the privilege to sign the Order was that of the Queen alone, separate to the advice. As such, the Court was not able to intervene. An intensely political matter, it was one in which the court was ill-equipped to tread. It was submitted that never before has a court intervened in a prorogation of Parliament, even where it has been politically motivated. Ultimately, it was submitted that there was no good reason for granting interim remedies, when an early hearing had already been granted.

The decision of Lord Doherty

Following submissions, Lord Doherty considered matters overnight, before handing down his decision at 10am the following morning, on Friday 30 August 2019. A copy of the court’s reasons are available here.

Ultimately, the motion for interim orders was refused. The court noted its broad discretion in considering applications for interim orders. It required to consider whether there was a “cogent need” for such orders to be made. Having regard to the fact that a substantive hearing had already been fixed for the following week, on a date prior to the first available date for prorogation, there was no cogent need established at this time. In any event, the court also found that the balance of convenience did not favour the granting of interim orders at this time.

The court did not express any view on whether there was a prima facie case, in light of the impending hearing when the substantive merits of the case would be fully considered; if the petitioners were right in that regard, the court noted that appropriate remedies would follow at the next hearing.

Crucially, the court considered that in the interests of justice, and the public interest, the substantive hearing must be accelerated.

What happens next?

The substantive hearing will now take place on Tuesday 3 September 2019 before Lord Doherty, sitting in the Court of Session, Edinburgh: once more, the eyes of the world will be on Scotland and its justice system.

Separate challenges in the other jurisdictions of the UK have now also been launched. Raymond McCord, a high-profile victims’ rights campaigner, has brought proceedings before the Courts of Northern Ireland, with a hearing fixed for Friday 6 September 2019. In England & Wales, Gina Millar, the businesswoman who brought the UK Supreme Court appeal of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 has also commenced proceedings, with a hearing fixed for Thursday 5 September 2019. Applications to intervene in the Millar English proceedings are pending from both John Major, the former Prime Minister of the UK, and the shadow Attorney General, Shami Chakrabarti. Observers might wonder whether, by the time these three cases might reach the UK Supreme Court, they will be conjoined as one.

Meanwhile, the petitioners in the Scottish case have thrown down a gauntlet to the Government by inviting it to lodge an affidavit (a sworn statement of evidence) from the Prime Minister on why he advised Her Majesty to prorogue parliament, with the prospect of cross-examining the Prime Minister on that issue. While it remains to be seen what the Government’s response will be, one thing is certain: the coming week is set to mark a further watershed moment in the UK constitution, as it grapples with Brexit.