Cherry and others v Lord Advocate

Parliament Square, Edinburgh

Author Kim Traynor

Licence CC BY-SA 3.0 

Source Parliament House Edinburgh

Jane Lambert

Court of Session, Outer House (Lord Doherty) Joanna Cherry QC MP and others v Lord Advocate  [2019] ScotCS CSOH_70 (4 Sept 2019)

By a petition lodged on 30 July 2019, Joanna Cherry QC, MP, the Scottish National Party's spokesperson for Justice and Home Affairs and a large number of other petitioners including other Members of the UK Parliament, petitioned the Court of Session in Edinburgh for the following relief:

“(1) A declarator that it is ultra vires et separatim unconstitutional for any Minister of the Crown, including the Prime Minister, with the intention and aim of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to purport to advise the Queen to prorogue the Union Parliament.
(2) Interdict against Ministers of the Crown from advising the Queen, with the view or intention of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to prorogue the Union Parliament, and for interdict ad interim.
(3) Such further orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case.”

The petition came on before Lord Doherty who gave two judgments, the first on 30 Aug 2019 in Cherry and others v Lord Advocate  : [2019] ScotCS CSOH_68 in which he refused to restrain the government from proroguing Parliament in the terms of the Order in Council of 28 Aug 2019 which I mentioned in my Brexit Briefing for August 2019 or set aside the order and the second in Cherry and Others v Lord Advocate [2019] ScotCS CSOH_70.

At paragraph [9] of his first decision, Lord Doherty explained that he refused the order because he was not satisfied that there was a cogent need for interim orders, and the balance of convenience did not favour the petitioners, He, therefore, did not propose to decide whether the petitioners had a prima facie case which is apparently an unusual course to take in Scotland, but was justified in the circumstances, and bearing by the imminence of substantive hearing where further argument would be possible.

In his second decision on the substantive hearing, Lord Doherty dismissed the petition.   His short judgment set out in full each party's arguments and his finding between paragraphs [24] and [34].  The key reason appears in paragraph [25]:

"In my opinion the authorities discussed during the submissions vouch the following propositions. The exercise of some prerogative powers in some circumstances is justiciable, in other cases it is not. The court's role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise, particularly on whether the subject matter is justiciable. Whether the exercise of a prerogative power is reviewable depends on the subject-matter and the context of the power and of the challenge. Some functions exercised or decisions taken are non-justiciable. Among them are matters of high policy and political judgement. The court does not have the tools or standards to assess the legality of such matters. That is political territory and decision-making which cannot be measured against legal standards, but rather only by political judgments. The courts will not seek to superimpose legal controls on such matters. Rather, the accountability for them is to Parliament and the electorate."

The decision disappoints but does not surprise me.  Although our unwritten constitution lacks the clear delineations between judicial, executive and legislative powers that exist in the written constitutions of other countries there are boundaries and none of the arms of government like to trespass on the territory of the other.  It is believed that this case together with Gina Miller's unsuccessful action for similar relief will be considered by the Supreme Court on 17 Sept 2019.  If the boundaries have shifted that is the court best placed to declare such shifts.

Anyone wishing to discuss this case note or brexit generally should call me on 020 7404 5252 or send me a message through my contact form.