Three National Views on the Prorogation of Parliament

Author Cnbrb
Licence CC NY-SA 4.0
Source Wikipedia Countries of the United Kingdon

Jane Lambert

Applications for judicial review of the prorogation of Parliament have been made to the Queen's Bench Divisional Courts of England and Wales and Northern Ireland and the Outer House of the Court of Session.  All three applications failed at first instance but an appeal to the Inner House of the Court of Session - equivalent to the Courts of Appeal of England and Wales and of Northern Ireland - has succeeded.

The decisions of Lord Doherty - the first instance judge in Scotland - on whether to restrain the prorogation and on the substantive application were published on 30 Aug 2019 and 4 Sept 2019 respectively (see  Cherry and others v Lord Advocate [2019] ScotCS  CSOH 68 and  Cherry and Others v Lord Advocate [2019] ScotCS CSOH_70).  I discussed those judgments in Cherry and Others v Lord Advocate 9 Sept 2019 NIPC Brexit. The decisions of the Inner House and the Divisional Courts of England and Wales and of Northern Ireland have been published today (see Cherry and Others v Advocate General  [2019] ScotCS CSOH_70, Miller, R (on the Application of) v The Prime Minister [2019] EWHC 2381 (QB) (11 Sept 2019) and R (McCord and another) v Prime Minister and others [2019] NIQB 78).

The applications in England and Northern Ireland failed for more or less the same reason as the first instance application in Scotland.  The judges in those jurisdictions considered that the decision to prorogue Parliament was a political decision which was not justiciable by the courts. As I said in my case note on the first instance decision:

"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."

The reason why the appeal succeeded in Scotland is that the Inner House was prepared to look at the history of the decision to prorogue and consider whether the government's intention was to make time for the preparation of a queen's speech as alleged by the administration or to stymie Parliament thereby making it easier for the UK to fall out of the EU by operation of art 50 (3) of the Treaty on European Union.

I have not analysed the three judgments in any detail in this article because none of them will stand for very long.   The Supreme Court will hear appeals from all three jurisdictions on Tuesday (see the

Brexit-related judicial review case(s) web page on the Supreme Court website). The following judges will hear those appeals:

• Lady Hale, President of the Supreme Court
• Lord Reed, Deputy President of the Supreme Court
• Lord Kerr
• Lord Wilson
• Lord Carnwath
• Lord Hodge
• Lady Black
• Lord Lloyd-Jones
• Lady Arden
• Lord Kitchin
• Lord Sales

The hearing will be open to the public on a first-come, first-served basis in the usual way, The proceedings will also be live-streamed and available to watch online as usual via the Court's website. Once a decision has been published I shall write about it here.

Anyone wishing to discuss this article or brexit generally may call me on 020 7404 5252 during office hours or send me a message through my contact page.