(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.’
and
‘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.’
and
‘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
Bailii
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
Scotland
Citing:
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Appeal from – Cherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
Cited – Macleod v Lewis Justices of Peace SCS 20-Dec-1892
. .
Cited – Glasgow Corporation v Central Land Board HL 12-Dec-1955
The House asked how far the public interest is allowed to outweigh the interest of the individual so that, though the appellants’ challenge of the respondents’ actings can only be satisfactorily disposed of after it is known what the respondents in . .
Cited – The Admiralty v Blair’s Trustee SCS 10-Dec-1915
Bankruptcy – Sequestration – Crown – Claims – Preference – Damages for Breach of Contract Payable to Admiralty – Prerogative Right of Crown to Preferential Ranking
In a sequestration the Lords Commissioners of the Admiralty claimed a . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Cited – The British Broadcasting Corporation for Access To Crown Productions In The Cases of Her Majesty’s Advocate v Hainey HCJ 12-Jan-2012
. .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
Cited – Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) SC 29-Jul-2019
The court was asked as to the making public of papers filed by the parties during litigation.
Held: The appeal failed, and the cross-appeal succeeded. the Court of Appeal had jurisdiction under CPR r 5.4C(2) to make the order which it had . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Edwards v Cruickshank 1840
Lord President Hope described the jurisdiction of supreme courts: ‘With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every . .
Cited – The Cheng Poh Alias Char Mer v The Public Prosecutor of Malaysia PC 11-Dec-1978
(Malaysia) . .
Cited – Wightman, Reclaiming Motion By Andy Wightman MSP and Others v Secretary of State for Exiting The European Union SCS 21-Sep-2018
(First Division, Inner House) . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment Belize Electric Company Limited PC 29-Jan-2004
PC (Belize) Lord Walker said: ‘It is now clear that proceedings for judicial review should not be conducted in the same manner as hard fought commercial litigation. A Respondent authority owes a duty to the court . .
Cited – The King v Wilde 1793
The Court ex officio ought to take notice of the beginning and end of prorogations and sessions of Parliament. . .
Cited – Her Majesty’s Advocate v Coulson HCJ 3-Jun-2015
. .
Cited – Adegbenro v Chief S L Akintola and Sir Adesoji Aderemi PC 27-May-1963
Nigeria – removal of premier of Western Region from office . .
Cited – Gibson v Lord Advocate SCS 7-Mar-1975
. .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Adams, MP v Guardian Newspapers Limited SCS 7-May-2003
Whether statements attributed were defamatory – accusation of leaking email, but email said not to be confidential . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) PC 13-Aug-2003
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim . .
Cited – McGeoch, Re Judicial Review SCS 15-Jan-2013
(Outer House, Court of Session) Challenge to refusal of legal aid. . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Lord Gray’s Motion HL 12-Nov-1999
(Committee for Privileges) The proposed House of Lords Bill which would have the effect of removing the right of Scottish hereditary Lords to sit in the House of Lords was not a breach of the Treaty of Union between England and Scotland. Such Lords . .
Cited by:
1st Div Inner House – Miller, 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.
Constitutional
Updated: 11 November 2021; Ref: scu.641198