The highest courts in England and Wales, and in Scotland, considered prorogation in principle, and the decision to prorogue on 9 September 2019 in practice, before coming to a different, reasoned judgment and opinion, respectively.
Permission to appeal to the highest court in the land was granted from both. Judgment of the Supreme Court is awaited.
Prorogation is the means by which the government, through exercise of prerogative power, can bring a parliamentary session to an end. Once prorogued, Members of Parliament cannot debate government policy or legislation, submit parliamentary questions for response by government departments, scrutinise government activity through parliamentary committees, or introduce their own legislation. Typically, the duration of prorogation in recent times has been very short. Rarely more than a couple of weeks. The Prime Minister’s plan to prorogue Parliament for five weeks is not.
In R (on the application of Miller) v Prime Minister  EWHC 2381 (QB), the Lord Chief Justice of England and Wales, the Master of the Rolls, and the President of the Queen’s Bench Division concurred that:
“The main issue we [had] to decide is whether the decision of the Prime Minister to seek the prorogation of Parliament is justiciable (is capable of challenge) in Her Majesty’s courts or whether it is an exclusively political matter.”
The claim failed. The High Court of England and Wales concluded that prorogation is an exclusively political matter.
There remains common law, prerogative powers which are immune from judicial review. In other words, “non-justiciable”. Many judicial statements that bind the High Court of England and Wales prescribe that whether the subject matter of the power is non-justiciable is the first question when considering the court’s power to review the exercise of prerogative powers.
The test for the courts is whether it involves matters of “high policy”, or it is otherwise “political”.Absence of judicial, or other legal standards by which to assess the legality of the executive’s decision, or other action, indicates that it is “political”.
The decision to prorogue, the date, and the duration of prorogation are inherently political in nature. There are no legal standards against which to judge legitimacy. Accordingly, it is impossible to assess, in law, whether the duration of prorogation is excessive.
The Court of Session is Scotland’s supreme civil court. It has been since 1532. The presiding judge, the Lord President is Scotland’s most senior judge.
The Inner House is the primary appeal court. It reviews decisions, mostly from the Outer House. Cases in the Inner House usually have three judges. Each with an equal vote. There is no casting vote.
The Lord President, Lord Brodie, and Lord Drummond Young heard the reclaiming motion by Joanna Cherry QC MP and others. The issue was when the prorogation of parliament can be the subject of judicial review.
In Cherry QC MP & Ors v Advocate General  CSIH 49, the first plea-in-law was for declarator that it is ultra vires, and unconstitutional for the government to advise the Queen to prorogue parliament with the intention of preventing sufficient time for proper consideration of Brexit. At first instance, the Lord Ordinary refused the prayer, principally because the provision of advice to the Queen on the prorogation of Parliament was non-justiciable.
There were two central questions. One of law. The other of fact. First, whether prorogation can be judicially reviewed where it is alleged that it has been requested for what is said to be an improper motive. Second, whether improper motive has been demonstrated.
There were two subsidiary questions. First, whether the press should have access to documents in the court process, produced in obedience of the duty of candour. Second, whether the court should call for unredacted copies of the same.
The reclaiming motion was allowed. On the two central questions, as a matter of law, a prerogative decision may be the subject of judicial review. As a matter of fact, an improper motive was demonstrated:
“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.”
Accordingly, the court was unanimous that both the advice to prorogue, and the prorogation in fact was unlawful, null, and of no effect. The court produced a declarator to that effect.
On the two, subsidiary questions, there is no difficulty in the press having access to pleadings. In the absence of special circumstances, written notes of argument in a reclaiming motion – intended to be a concise summary of the submissions to be developed – are open for inspection.
If production of an unredacted version of a document to the petitioners is necessary for fairly disposing of the proceedings, the court could override objections from the government based upon public interest considerations. In the instant case, however, redactions were justified.
In both R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) and Cherry & Ors (Respondents) v Advocate General for Scotland (Appellant) (Scotland), the essential question is whether a challenge to the decision of the Prime Minister to advise the Queen to prorogue Parliament is justiciable.
It appears that the decision for the Supreme Court is binary: no, and by doing so, appear to endorse the judgment of the High Court of England and Wales; or yes, and by doing so, appear to endorse the opinion of the Inner House of the Court of Session. The President of the Supreme Court has indicated that judgment will be handed down early this week. It is eagerly awaited.
Dominic Bright / 24th Sep 2019
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