Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General: SCS 11 Sep 2019

(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer that the reason for the prorogation was unlawful.
‘It was the role of the courts to protect Parliament. It would be odd if the court disqualified itself just because political judgement is involved. Merely because a question is in the political sphere does not mean that it is not justiciable. The real issue was how the courts should carry out their review, in other words what is the appropriate standard and intensity of review. The structure of analysis that the intervener invites the court to apply is a familiar one. It involves the court assessing the impact of the decision under review on a recognised legal interest, here the constitutional principle of responsible government; in applying scrutiny to the justification advanced by the UK Government; and in addressing whether the interference is rationally connected to the justification; and whether that impact is proportionate to the justification advanced. These are all questions which are apt for judicial determination. The constitutional right of Parliament to sit is so important that it requires enforcement in the court. ‘
‘The contention is that the reasons which have been proffered by the PM in public (to prepare for a new legislative programme and to cover the period of the party conferences) are not the true ones. The real reason, it is said, is to stymie Parliamentary scrutiny of Government action. Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying ‘the principles of democracy and the rule of law’ . . The terms of the Claim of Right are not breached simply because Parliament does not sit for a month or so. Parliament has, throughout the year, been allowed to sit.’
‘The Executive’s exercise of the power of prorogation of Parliament is accordingly not unlimited or unfettered. Exercise of the power is lawful only if it is consistent with constitutional principle. The power can only be exercised for a proper purpose. Even if it is exercised for a proper purpose, it is subject to review on the ordinary principles of legality, rationality and procedural propriety. In the present case the Prime Minister has declined to give a proper and complete account of the Executive’s true reasons for exercising the prerogative to prorogue Parliament for the period specified in the Order. This refusal by the Prime Minister to explain the decision-making and reasoning underlying the exercise of the power at the present time mean that the court should draw inferences of fact against the respondent.’
Lord Brodie: ‘It is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference. My reasons for inferring that are as follows. The Prime Minister has made it very clear that his principal policy objective is to achieve a withdrawal of the United Kingdom from the European Union on 31 October 2019 irrespective of the consequences of such a withdrawal and therefore irrespective of the making of a withdrawal agreement with the European Union with a view to ameliorating some of the adverse effects of withdrawal (that there will be adverse effects would seem to be accepted by the Prime Minister, given his expressed wish to negotiate an agreement). If withdrawal by 31 October 2019 means a no deal Brexit then the Prime Minister is prepared to accept that. He would prefer to be ‘dead in a ditch’ to not achieving that objective. However, the Prime Minister does not command a majority in Parliament for this policy objective if it comes at the price of no deal. A sitting Parliament, carrying out its constitutional functions including the passing of legislation, therefore presents the potential to interfere with the Prime Minister’s policy objective. As it happens, this was to be demonstrated during the two days of the hearing of the reclaiming motion, but it had been anticipated for some time before that. What was also anticipated, not just by the petitioners but in public statements by at least one member of the present cabinet, that a means of preventing such interference would be to prorogue Parliament (and the speaker said he was willing to procure that). It is now known that a prorogation of some five weeks between 9 September and 14 October was being planned at least as early as 15 August. That planning would seem to have been conducted in conditions of some secrecy. That Parliament was to be prorogued was only announced after the Order was made, on 28 August. That was so, as your Lordship in the chair observes, despite the fact that the petitioners’ application with its averments of apprehension of a prorogation had been initiated on 31 July without any subsequent acknowledgement in the respondent’s pleadings that the apprehension was well founded. As your Lordship observes, it would appear to have been thought appropriate to keep the respondent’s legal advisers in the dark about what was planned. Of significance is the length of the prorogation.’
‘Prorogation is an act of the executive acting through the Crown. Parliament has no power to revoke it. This should be contrasted with Parliament’s going into recess. That is a decision of Parliament itself, and a recess can be revoked by Parliament at any time. Recesses take place regularly, for example, during the summer and over the party conference season in the autumn. The power to reconvene Parliament at any time provides important flexibility. This is absent from prorogation. This explains in part why prorogation is in practice normally only used for very short periods, generally to begin a new Parliamentary session.’
‘it is apparent that the United Kingdom’s withdrawal from the EU and its future relationship with the EU are the subject of vigorous debate and controversy. The controversy goes beyond the terms of any withdrawal agreement or the lack of it. It extends to the arrangements that will be put in place in the United Kingdom either to implement a future withdrawal agreement or to address the consequences of withdrawal on a ‘no-deal’ basis. These are themselves complex matters, and preparations for a ‘no-deal’ withdrawal are widely reported as involving a great deal of work by the civil service. At such a time Parliament’s second essential constitutional function, the scrutiny of the executive, is of paramount importance.’
‘Prorogation has the effect of bringing Parliamentary scrutiny to an end, and thus in the event of challenge any reason for proroguing must be supplied to the court. If no reason is given, in the present circumstances I am of opinion that the decision to prorogue Parliament for five weeks out of the seven remaining before the United Kingdom is scheduled to leave the European Union leads inevitably to the conclusion that the reason for prorogation was to prevent Parliamentary scrutiny of the government. I find it impossible to see that it could serve any other rational purpose. The respondent’s pleadings say almost nothing about the reason for the prorogation, and the court was not provided with any other formal statement of the reasons.’
‘The critical complaint about the prorogation is not the fact that it occurred; short prorogation is regularly used to start new Parliamentary sessions. The complaint rather relates to the length of the period during which Parliament is to be prorogued, without any power to resume sitting during that period.’

Lord President, Lord Brodie, Lord Drummond Young
[2019] ScotCS CSIH – 49
European Union (Notification of Withdrawal) Act 2017 1, Prorogation Act 1867 1, European Union (Withdrawal) (No 2) Act 2019, Northern Ireland (ExecutiveFormation etc) Act 2019, Claim of Right Act 1689, Act of Settlement 1700
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Cited by:
1st Div Inner HouseMiller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.


Updated: 11 November 2021; Ref: scu.641198