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Full Inner House opinions published in prorogation case

13 September 2019

Full reasons have been published for the decision by the Inner House of the Court of Session that Prime Minister acted unlawfully in asking the Queen to grant the present prorogation of Parliament.

All three judges agreed in the outcome, while giving somewhat differing reasons for reaching their conclusion.

The Lord President, Lord Carloway, noted previous decisions holding that a prerogative decision may be the subject of a judicial review. Whether the issue was ultimately justiciable would depend on the subject matter; and "As a generality, decisions which are made on the basis of legitimate political considerations alone are not justiciable... If the reasons for the decision were based upon legitimate political considerations, including a desire to see that Brexit occurs, they would not be challengeable. However, that is not the contention".

Allegedly the real reason was to "stymie" parliamentary scrutiny of Government action, a central pillar of the good governance principle enshrined in the constitution. While there was "some force in the contention" that the court should leave it to Parliament to decide whether to challenge the prorogation, because the prorogation went to the root of Parliament’s ability to sit, and thus prevented Parliament from performing its central role in scrutinising Government action, the court had to have a concurrent jurisdiction. It was open to Parliament to legislate to override the court's decision; and it could decide not to sit.

Lord Carloway continued: "The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake." These included the "clandestine manner" in which prorogation was sought; trhe decision was taken against a background of prorogation being mooted specifically as a means to stymie any further legislation regulating Brexit; "remarkably little" was said in the Government's pleadings about the reasons for the prorogation, and under Scottish procedure the courts would expect such averments; and there was "no practical reason for a prorogation for what is, in modern times, an extraordinary length of time".

He concluded: "The fact that there will be some days in September and October during which Parliament will be sitting, and thus potentially some time to discuss Brexit, does not detract from the general position that the prorogation is intended unlawfully to restrict that time. The court is not dictating the days on which Parliament should sit. That is a matter for Parliament to decide. It is merely holding that a particular attempt to restrict the available days is unlawful."

However he rejected an argument that the issue was also justiciable on the basis of individuals' legal rights. The court chould grant a declarator that the advice to prorogue Parliament on a day between 9 and 12 September until 14 October, and hence any prorogation which followed thereon, was "unlawful and thus null and of no effect".

Lord Brodie noted that it was accepted that, as a matter of generality, the court had jurisdiction to review an exercise of power derived from the royal prerogative. He saw a question as justiciable "if it is capable of practical determination by reference to legal principles in a court of law". The first ground of challenge gave rise to two issues: "whether this court can reduce the order; and second, whether it should. Both involve a question of justiciability".

As matters stood at the end of July when the petition was first presented, Lord Brodie inclined to the view that the petitioners were not in a position to frame a justiciable question: the court would not have had the necessary materials to conclude that the petitioners had a reasonable apprehension of unlawful prorogation. "The landscape changed, however, with the making of the order".

When regard was had to all the material now before the court, the petitioners were "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". They were also entitled to ask the court to infer, as Lord Brodie inferred, that "the principal reason for the advice to the Queen 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".

Just because a Government had resorted to a procedural manoeuvre in order to achieve its purpose does not mean that there was necessarily scope for judicial review. "Procedural manoeuvres are the stuff of politics, whether conducted in Parliament or in lesser bodies. However, when the manoeuvre is quite so blatantly designed 'to frustrate Parliament' at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful."

He added: "What has led me to conclude that the court is entitled to find the making of the order unlawful is the extreme nature of the case." Quoting an English judge and textbook writer, he said this was one of those "egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities... At all events, I consider the order to be unlawful and that making it was contrary to the rule of law".

For Lord Drummond Young, prorogation raised "in an acute form" the relationship between the executive and the legislature. "Prorogation has the effect of suspending the operation of the democratically elected body, leaving the executive for the time being free of political (as against legal) control. In this connection there is an important distinction between prorogation and Parliament’s going into recess."

In considering whether the exercise of the power to prorogue Parliament had been properly exercised, three features of the constitutional system of the United Kingdom were of central importance: the sovereignty of Parliament, the accountability of the executive to Parliament, and the rule of law. The rule of law required that "any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised".

He stated: "The proroguing of Parliament suspends the operation of the body that is responsible for subjecting the executive to critical scrutiny... This in my opinion makes it particularly important that the courts should ensure that the power to prorogue Parliament is only used in a proper manner and for proper purposes. The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so."

In the present situation, when regard is had both to the circumstances at the time of prorogation and its duration, Lord Drummond Young was of opinion "that it is incumbent on the Government to show that it has a valid reason for proroguing Parliament in that manner. In reaching that conclusion, I have particular regard to the fundamental constitutional importance of parliamentary scrutiny of executive action". 

He added: "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."

Nothing in the documents produced provided any such explanation, and "the only inference that can properly be drawn on an objective basis is that the Government, and the Prime Minister in particular, wished to restrict debate in Parliament for as long as possible".

He concluded: "In my opinion that is not a proper purpose for proroguing Parliament. I accordingly conclude that the decision to prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of the prerogative power. It follows that the prorogation was ultra vires."

Click here to view the opinions.

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