On 3 September 2019, the Lord Ordinary (Lord Doherty), sitting in the Outer House of the Court of Session at first instance, heard a petition for judicial review in which the petitioners, 75 MPs and Lords, sought a declarator that it was ultra vires and unconstitutional for the Prime Minister, or any Minister for that matter, to provide advice to the Queen to prorogue Parliament in order to deny Parliament the opportunity to properly consider the UK’s withdrawal from the European Union before the current exit day of 31 October 2019. On 4 September 2019, Lord Doherty issued his decision in which he refused the petition on the basis that the advice given to the Queen by the Prime Minister was ‘non-justiciable’.
What are the practical implications of this decision?
There are potentially both political and legal implications that flow from this decision.
Politically, the UK government can ostensibly now proceed with its plans to prorogue Parliament on the basis that it has been found to be legal. For Parliament, this means that the opportunities for it to pass legislation against a no deal Brexit are limited. However, as always, events have somewhat overtaken matters in the courts. The government has been defeated on a number of bills and is now facing the prospect of being required by Parliament to seek an extension to Article 50, and, thereafter, to call a general election. On this basis, it would seem that the political implications of the decision may have been, somewhat, ameliorated. However, given that the Prime Minister promised to leave the European Union on 31 October 2019, ‘do or die’, being obliged to request an extension to Article 50 from the European Union may be somewhat embarrassing, but may also galvanize the support of Brexit supporters in any election to follow.
Legally, the decision may have some potential implications as it relates to the concept of parliamentary sovereignty (ie the notion that Parliament is the ultimate legislator in terms of the UK’s constitution). Recent court decisions have sought to protect the notion of parliamentary sovereignty, particularly against the use of executive power. For instance, in R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5,  All ER (D) 70 (Jan) the courts intervened to hold that the executive was not entitled to exercise prerogative powers in order to circumvent Parliament and to invoke Article 50 without proper debate and legislation. However, one could argue that, in this case, the Prime Minister is similarly seeking to thwart the ability of Parliament to pass new legislation against a no deal Brexit by the use of a prerogative power—yet the court has chosen not to intervene. On that basis, it is possible that such non-intervention will be perceived as representing an erosion of the sovereignty of Parliament.
What was the background?
In July 2019, a judicial review was raised at the Court of Session by Joanna Cherry QC MP and others, seeking a declarator from the court that it is not within the power of the executive, and is unconstitutional, for the executive to seek to suspend Parliament in order to deny Parliament the opportunity to properly debate and address the possibility of the UK exiting the European Union on 31 October 2019 without a deal. The petitioners were granted permission to proceed with the petition on 8 August 2019. A substantive hearing on the petition was fixed for 6 September 2019.
On 28 August 2019, before the hearing on the petition was due to take place, the Prime Minister advised the Queen to prorogue Parliament from 9 September 2019 in order to allow for a Queen’s speech, and a new session of Parliament to begin, on 14 October 2019. Following on from that announcement—and given that the petition had somewhat been overtaken by events—the petitioners sought interim suspension of the Order in Council approving the prorogation of Parliament, and interim interdict (interim injunction) of the Prime Minister, or any other Minister or person, from acting on the Order in Council.
That motion was heard on 29 August 2019, and was refused on the basis that there was no ‘cogent need’ for interim suspension and interim interdict as the full hearing on the petition was due to take place before the earliest date on which Parliament could be prorogued.
Lord Doherty also further accelerated the timetable to allow for the full hearing on the petition to take place on 3 September 2019.
What did the court decide?
The Lord Ordinary found that the issue of advice given to the Queen by the Prime Minister to prorogue Parliament was a political one and was ‘non-justiciable’ (ie that it was not a question that the courts were entitled to determine).
The petitioners had argued that the main issue in the case was one of accountability. They had put forward the premise that the executive was accountable to Parliament politically, but that it was also legally accountable to the courts. They submitted that the Prime Minister was attempting to abuse the power of the executive and circumvent such accountability by suspending Parliament in order to press ahead with a no deal Brexit that it knew Parliament did not support. The petitioners cited the Claim of Right of 1689 in support of the notion that executive power was limited and could not be exercised in a way that impinged on the other branches of government. They argued that the courts should not tolerate the abuse of executive power and should step in to stop it, and to ensure that the government remained subject to the rule of law.
The government argued that the issue was simply non-justiciable on the basis that there were no legal standards by which the courts could judge the exercise of a political power. The advice given to the Queen by the Prime Minister was not law, but rather ‘high policy’. On that basis, the government submitted that Parliament, and not the courts, was the correct forum for such disputes to be resolved. In any event, the government also argued that the question was academic as Parliament was already due to sit in October 2019 before the present date of exit from the European Union, and had time to debate the issue if it chose to do so.
In the circumstances, the court held that none of the matters on which the petitioners relied led to the claim being a justiciable one. Lord Doherty was of the view that prorogation involved matters of ‘high policy’ and ‘political judgment’, which was political territory that could not be judged against legal standards.
Further, Lord Doherty held that prorogation did not contravene the rule of law as the power to prorogue Parliament is a prerogative power, and that it is within the power of the Prime Minister to advise the Queen on the exercise of that power. Ultimately, the court held that the executive is accountable to Parliament and the electorate for advice that is provided to the Queen, and that those bodies are the appropriate ones to hold the executive to account should it be felt that any advice that was given was improper.
What happens next?
Quickly following on from the release of the decision by Lord Doherty, the petitioners marked an appeal to the Inner House of the Court of Session, the highest court for civil appeals in Scotland. An appeal hearing was expedited and is being heard on 5 September 2019, with a decision expected to follow quickly thereafter.