Court of Session
Copyright: Scottish Legal News

A judge in the Court of Session in Edinburgh refused a motion for interim suspension of the an order setting out the intended prorogation of the UK Parliament prior to 31 October 2019 or such other date to which “exit day” may be moved, and to interdict UK Government Ministers from acting meantime on the basis of that order.

Lord Doherty heard that the petitioners Joanna Cherry QC MP and others had raised judicial review proceedings seeking a declarator that it was “ultra vires” et separatim “unconstitutional” for any Minister of the Crown, including the Prime Minister, to purport to advise the Queen to prorogue the Union Parliament with the aim of denying before exit day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union.

They were also seeking interdict and interim interdict against the Ministers from advising the Queen to prorogue Parliament.

But the court was told that the petition had been “overtaken by events” by an Order in Council made on 28 August 2019 at Balmoral, where Her Majesty the Queen ordered that Parliament be prorogued on a day no earlier than Monday 9 September 2019 and no later than 12 September 2019, until Monday 14 October 2019, having accepted the advice of the Prime Minister and the UK Government.

‘Unlawful and unconstitutional’

The petitioners invoked the “constitutional jurisdiction” of the court to argue that the advice given was “unlawful” and that it was the duty of the court to provide and “effective remedy” in order to ensure that the “rule of law” was maintained.

The essence of the petitioners’ argument was that the advice which Ministers gave Her Majesty was “unlawful and unconstitutional” because it was motivated by a desire to “restrict” Parliament’s ability to hold the Government to account; and that that matter was “justiciable”; and because the advice “frustrated the will of Parliament” as expressed in a number of statutes, including the European Union (Withdrawal) Act 2018, the Northern Ireland (Executive Formation) Act 2019, and the Fixed-term Parliaments Act 2011.

On behalf of the petitioners, Aidan O’Neill QC submitted that the power of prorogation should not be used to prevent Parliament from carrying out its constitutional duties, including the duty to hold the Government to account.

The court was “entitled” to review the lawfulness of the advice given, as a result of which it was argued that the resulting decision of the Queen could also fall as “unlawful, unwarranted and unconstitutional”.

Whether or not it was competent for UK Ministers to advice the Queen to prorogue Parliament in the present circumstances, a matter of weeks before the UK was due to leave the EU, was said to be a question of law and constitutional interpretation, and therefore properly a matter for the court to consider.

The lawfulness of advice to the Sovereign by Ministers or Privy Counsellors, which resulted in the passing of legal measures by the Sovereign, was “justiciable”, it was argued.

It was submitted that if the court was satisfied that the advice to prorogue Parliament amounted to an “abuse of power”, then there was an “obligation” on the Sovereign to recall the resulting order of prorogation.

Mr O’Neill maintained that the petitioners had a “prima facie” case and that the “balance of convenience” favoured the grant of interim orders.

‘Not justiciable’

However, the Advocate General for Scotland on behalf of the UK Ministers submitted that the motions should be refused.

Counsel for the respondent, Roddy Dunlop QC, argued that the petitioners had raised matters of the “highest constitutional importance”, involving real questions relating to the “separation of powers”, which were “manifestly unsuited” for determination on an interim basis.

In any event, the contested matter of prorogation had already taken place, and was “not justiciable”.

It was an act of the Sovereign herself, exercising a privilege that was hers alone – separate from the giving of advice in respect of which the petitioners had been granted permission to proceed – with which the court simply would not interfere.

There was a “clear convention” that the Sovereign would follow the advice of her Government in proroguing Parliament, and parliamentary convention was something long recognised as not justiciable.

In any event, the advice tendered to the Queen, and the motivation behind it, were both covered by “parliamentary privilege” and could not be the subject of enquiry anywhere other than in parliament; the reasons for the advice were all “intensely political” and not ones upon which the court was qualified to adjudicate.

Accordingly, it was argued that the petitioners had failed to demonstrate the necessary prima facie case and in any event had failed to justify the need for interim orders prior to the full hearing of the case next week, prior to prorogation coming into effect.

‘Balance of convenience’

Refusing the motion, the judge held that the petitioner had failed to demonstrate that there was a “cogent need” for interim orders to be made.

In a written opinion, Lord Doherty said: “The grant of interim interdict and interim suspension is a matter in relation to which the court possesses a broad discretion.

“Normally a party seeking such interim orders requires to show that there is a cogent need for the orders to be made.

“I am not satisfied that it has been demonstrated that there is a cogent need for interim suspension or interim interdict to be granted at this stage.”

The judge noted that a substantive hearing has been set down to take place on Friday 6 September, before the first possible date on which Parliament could be prorogued, but the petitioners had also enrolled a motion to move that hearing to an earlier date next week.

Lord Doherty said: “In light of the making of the Order in Council my provisional view (but I shall have to hear parties on this) is that the substantive hearing ought to be moved forward to Tuesday or at latest Wednesday of next week. That would facilitate an earlier decision and it would provide greater opportunity for a reclaiming motion (appeal) to be heard before 9 September.”

He continued: “At the substantive hearing the court will hear full argument on the issues raised in the petition and answers, and the question will be whether or not the petition is well founded, rather than whether a case for interim orders has been made out.

“If the petitioners are in the right they will be able to ask the court to grant appropriate remedies at that hearing. It seems to me that even if the petitioners are correct that they have a prima facie case (it was not submitted that it was a strong prima facie case), the balance of convenience does not favour granting interim orders.”

The judge concluded: “Since I am not satisfied that there is a cogent need for interim orders, and the balance of convenience does not favour the petitioners, I do not propose to decide whether the petitioners have a prima facie case. 

“I appreciate that that is an unusual course to take, but in the whole circumstances, and bearing in mind the imminent substantive hearing where fuller argument will be possible, I think it is preferable that I do not say more at this stage than is strictly necessary.

“The motion for interim suspension and interim interdict is refused at this stage.”

After Lord Doherty had delivered his decision orally, Mr O’Neill moved for the substantive hearing to be brought forward to Monday 2 September 2019, failing which Tuesday 3 September 2019. 

Mr Dunlop recognised that there was a case for bringing the hearing forward, but asked that it be scheduled for Wednesday 4 September 2019.

However, Lord Doherty considered that it was in the “public interest” that the case be heard sooner, and fixed the substantive hearing to take place on Tuesday 3 September.