Prime Minister’s advice to Queen to prorogue Parliament ‘not unlawful’, judge rules

A judge in the Court of Session ruled that the advice given by Prime Minister Boris Johnson to Her Majesty The Queen to prorogue Parliament in advance of “exit day” was “non-justiciable”.

‘Prorogation unlawful’

Lord Doherty heard that the petitioners Joanna Cherry QC MP and 74 other MPs and Lords had raised judicial review proceedings seeking a declarator that it was “ultra vires” et separatim “unconstitutional” for any Minister of the Crown, including the Prime Minister, to purport to advise the Queen to prorogue the Union Parliament with the aim of denying before exit day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union.

On behalf of the petitioners, Aidan O’Neill QC submitted that the case was, fundamentally, about accountability – the political accountability of Government to Parliament, and the legal accountability of Government to the Court.

It was argued that, in reality – as highlighted by the documents lodged by the respondent – the Prime Minister was seeking to hold office without accountability, which was not a situation which the court could permit.

The primary notion of the UK constitution was the preservation of the rule of law and the Government was subject to the law, whether it acted by prerogative power or otherwise. The rule of law protected the sovereignty of Parliament, not the assertion of power by the Executive over the Legislature.

The prorogation of Parliament in the circumstances of the present case was precisely an example of the Government abusively seeking to entrench its power “contrary to constitutional norms”. In those circumstances, the court could declare it to be “unlawful”.

The plain words of the Claim of Right 1689 could not be ignored: the prerogative power could not be exercised contrary to the laws and liberties of the kingdom, and any claim that executive power is unlimited or unfettered was ”untenable”.

It was peculiarly the province of the court to specify those limits, and it was “settled law” that the exercise of power was subject to review according to the ordinary principles of legality, rationality and procedural impropriety.

If Parliament was prorogued, not only was it prevented from holding the Government to account politically, but it was unable to pass the necessary legislation to authorise even a “no deal” Brexit – which would mark a fundamental change in domestic rights created under the European Communities Act 1972, including EU law and derived rights – in which case the court was the only constitutional actor left standing and required to set down the limits of the power of the Executive in the circumstances.

‘Non-justiciable’

However, counsel for the respondent David Johnston QC submitted that the claim was non-justiciable, as there were no judicial tools or standards by which the court could decide whether the ministerial advice at issue was lawful.

It was politics or “high policy”, not law, and for that reason, the courts were not the right place for these matters to be resolved; rather, they could be discussed and resolved in Parliament.

Parliament had made its own clear provisions as to when it wished to sit, which expressly provided for Parliament to be prorogued at some points and recalled if necessary.

The respondent rejected the suggestion that the Government had acted unconstitutionally.

First, it was argued the court did not have the necessary tools to assess the legality of political decisions, and Parliament had occupied this area for itself anyway.

Secondly, the petitioners’ claim was “academic”, in the sense that provision had already been made to enable Parliament to sit for certain periods to the end of October.

Thirdly, the Claim of Right 1689 did not set out mandatory periods during which Parliament was required to sit, nor when or for how long; nor did it provide a legal standard by which to measure whether or not a decision to advise HM Queen to prorogue Parliament was lawful.

Neither the European Union (Withdrawal) Act 2018, nor the Northern Ireland (Executive Formation) Act 2018 altered that position, and none interfered with or frustrated in any way the constitutional position.

It was submitted that the case concerned an “inherently political decision” and the courts were “not equipped” to measure political judgements against legal standards.

‘No contravention of the rule of law’

Refusing the petition, the judge ruled that the Prime Minister was within his power to advise the Queen to prorogue Parliament.

In a written opinion, Lord Doherty said: “I am not persuaded that any of the matters relied upon by the petitioners or the Lord Advocate result in the claim being justiciable. In my view the advice given in relation to the prorogation decision is a matter involving high policy and political judgement. This is political territory and decision-making which cannot be measured against legal standards, but only by political judgements. Accountability for the advice is to Parliament and, ultimately, the electorate, and not to the courts.

“I do not accept the submission that the prorogation contravenes the rule of law, and that the claim is justiciable because of that. In my opinion there has been no contravention of the rule of law. The power to prorogue is a prerogative power and the Prime Minister had the vires to advise the sovereign as to its exercise. The executive is accountable to Parliament and the electorate for the advice to prorogue.

“Parliament is the master of its own proceedings, rules and privileges and has exclusive control over its own affairs. The separation of powers entails that the courts will not interfere. It is for Parliament to decide when it will sit and it routinely does so. It is not for the courts to devise further restraints on prorogation which go beyond the limits which Parliament has chosen to provide.”