Prorogation – Dead in a Ditch?

Gilson Gray’s Head of Litigation, Rosie Walker, and colleague, Iain Grant, discuss the recent Scottish prorogation case. 

What was the Court Action?

A Court of Session petition was raised by parliamentarians from the SNP, the Liberal Democrats and Labour on 31 July 2019.  The petitioners sought declarator that it was unconstitutional for the Government to advise the Queen to prorogue Parliament with the intention of preventing sufficient time for proper consideration of Brexit. They also sought interdict (injunction) preventing prorogation.

Given the fast-moving events in politics, events somewhat overtook the petition.  On 28 August the Queen, on the advice of the Privy Council, pronounced an order that Parliament is prorogued.  Reacting to this development, the petitioners sought interim interdict preventing prorogation.  This was refused by Lord Doherty on 30 August 2019.

Following a full hearing on 3 September, Lord Doherty also refused the petition itself on the basis that advice to the Queen on the prorogation of Parliament was not justiciable. In other words, the power to advise the Queen on prorogation was a political one and so should not be reviewed by the courts.  Lord Doherty also found that, if the matter was justiciable, the reasons for the advice as disclosed in the Government’s documents were lawful.

The petitioners then appealed to the Inner House (appeal court).  There the Lord President, Lord Brodie and Lord Drummond Young allowed the appeal, declaring that the Order to prorogue Parliament and the subsequent prorogation was illegal and null.

What was being decided?

The main issue raised in the petition was when the prorogation of Parliament by an Order in Council, at the instance of Her Majesty the Queen on the advice of the UK Government, could be subject to review by the court.

The Inner House recognised this involved two questions:-

1. whether prorogation can be judicially reviewed where it is alleged that it has been requested for improper reasons?: and

2. whether an improper motive had been demonstrated in this case?

What was the Petitioners’ case?

These can be summarised as:-

1. Parliamentary sovereignty is fundamental.

2. Prerogative power is limited.

3. Government is politically accountable to Parliament and legally accountable to the courts.

4. The Government has to obey the law as declared by the courts.

5. The rule of law is the ultimate control upon which the constitution is based. The court has to provide an effective remedy against breaches of the constitution.

Interestingly the Petitioners also pointed to the differing constitutional position in Scots and English law, arguing that under Scots law the Government was subordinate to the law, a concept they traced back to the 16th century ie before the Act of Union.

Since the Scottish and English cases are heading to the Supreme Court next week, it will be interesting to see how these differences are dealt with there.

The Lord Advocate’s position

The Lord Advocate is the senior Scottish law officer and principal legal advisor to the Scottish Government.  Not originally a party to the petition, he was granted permission to intervene on 3 September.

Not surprisingly given the Scottish Government’s position on Brexit, he too challenged the legality of prorogation, arguing, “It was a cardinal principle of the constitution that the Government was accountable to Parliament.”

The UK Government’s Arguments

The Government argued:-

1. that the decision to prorogue was not justiciable i.e. not open to the courts to review;
2. in any event, the purpose was legitimate, is to prepare for a new legislative programme and Queen’s Speech and to cover the party conferences.
3. It maintained the issue was one of high policy and politics and not of law.  It maintained that only the Queen could prorogue Parliament and it pointed to wider political considerations, which it said meant the courts should not interfere with Parliamentary proceedings.  It contended that its timetable would afford time both before and after the Queen’s Speech to debate Brexit.

What did the Inner House say?

Each Judge issued an opinion with the lead opinion coming from the Lord President.  The decision was unanimous although the judges all approached matters slightly differently.

The Lord President

The Lord President set out the nature, use and effects of prorogation.  The latter included preventing MPs from debating policy and scrutinising government activity.  He detailed the background from the passing of the European Union (Notification of Withdrawal) Act 2017 through Theresa May’s withdrawal agreement to the recent change of Government.  Finally, he addressed the emergence of the idea of prorogation in the context of the Brexit, which was first discussed in March 2019.

The Lord President held that prerogative decisions may be subject to judicial review.  He recognised that decisions made on the basis of legitimate political considerations alone are not justiciable but the present circumstances differed because the Prime Minister had stated in public that prorogation was for specific reasons i.e. the new legislative programme while the petitioners argued that the true reason was, “to stymie Parliamentary scrutiny of Government action”.  The Lord President held that, “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.”

The Lord President held that “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.”

In reaching this conclusion, the Lord President relied upon the fact that:-

1. “prorogation was sought in a clandestine manner”.
2. “prorogation was being mooted specifically as a means to stymie any further legislation regulating Brexit.”
3. “there is remarkably little said about the reason for the prorogation in the respondent’s ”  
4. “There was, and is, no practical reason for a prorogation for what is, in modern times, an extraordinary length of time.”
5. “At the Cabinet meeting, the tenor of the PM’s remarks, and the discussion around them, point to the various factors being used publicly to deflect from the real reason for the prorogation.”

Lord Brodie’s Opinion

Lord Brodie approached matters from the starting point that, to grant the petition, the court must be satisfied that the advice given to the Queen by the Privy Council was in some way unlawful.    Having considered the documents before the court, Lord Brodie took the view 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.”

He continued, “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.”

In other words, where the decision to prorogue is a “tactic to frustrate Parliament”, the court could consider it to be for an improper purpose and hence unlawful.

Lord Drummond Young’s opinion

For Lord Drummond Young, the critical question was whether the Government’s decision to prorogue Parliament was a proper exercise of the executive’s power.  Lord Drummond Young analysed matters with reference to the sovereignty of Parliament, the accountability of the executive to Parliament and the rule of law.

He took the view that, “The effect of proroguing Parliament is to prevent, or at least to limit severely, the ability of Parliament to perform its essential function of holding the executive to account. During a vital period of five weeks Parliament will be prevented from performing that function. Seven weeks after Parliament is prorogued the United Kingdom is scheduled to leave the European Union, with or without a withdrawal agreement. Such lack of scrutiny may be convenient for the government.  Nevertheless, it is taking place at a time when matters of great national importance fall to be decided.”

Having reviewed the documents disclosed, Lord Drummond Young could find no reason why Parliament should be prorogued for 5 weeks and noted no other explanation had been provided.  He therefore concluded,  “In these circumstances I have come to the conclusion that 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.”

Conclusion

Events since the Brexit referendum have frequently been described as extraordinary but this decision certainly deserves such a description.  For the first time a Scottish court has reviewed the prerogative power to advise the Sovereign to prorogue Parliament and has found it justiciable.  More remarkably, it has found that the power was exercised by the UK Government illegally for an improper purpose.  Most extraordinary of all, that improper purpose was to effectively silence Parliament at a time of national importance.  Stripped back to basics, this is a remarkable judgment.

Of course the case now goes to the Supreme Court.  There it will likely be joined by the English and Northern Irish cases.  The differing constitutional principles applying in the constituent nations will have to be grappled with.  The outcome is hard to predict.  Regardless of the outcome, however, this decision shows the Scottish Inner House is willing to review decisions made under prerogative powers even where the political consequences may be significant.  They have been willing to declare null the Orders arising from such actions.  The implications of this will be far reaching for Scots Constitutional law. There may be an increased likelihood that future executive decisions will be challenged.  The Court will not review legitimate political decisions but will review those where the true purpose is concealed even where this may have far reaching political consequences.  Constitutional law is certainly a more interesting – and less predictable – field than ever before.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.