Prorogation ‘unlawful’ because power was used for ‘improper purpose’ of ‘stymying parliament’

The Inner House of the Court of Session has published its full reasons for allowing an appeal by a cross-party group of parliamentarians against the prorogation of the UK Parliament.

All three First Division judges decided that Prime Minister Boris Johnson’s advice to the HM The Queen is “justiciable”, that it was motivated by the “improper purpose” of “stymying” Parliament and that it, and what has followed from it, is “unlawful”.

The Lord President, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that a petition for judicial review was raised on 31 July 2019 by Joanna Cherry QC MP and 77 other parliamentarians at Westminster, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM The Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union on 31 October.

Following the substantive hearing on Tuesday 3 September, the Lord Ordinary dismissed the petition. 

The reclaiming motion was heard by the First Division of the Court of Session over 5 and 6 September. 

Parliament was prorogued in the early hours of Tuesday 10 September.

Lord Doherty had found that the PM’s advice to HM The Queen on prorogation was, as a matter of “high policy” and political judgment, “non-justiciable”; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

However, the petitioners argued that the Government was politically accountable to Parliament in the exercise of its powers, and that the Government would be acting unlawfully if it curtailed political accountability.

It was submitted that the Lord Ordinary had “abrogated his constitutional function” in determining that, in relation to prorogation, the Government was above the law. 

The court was the “only umpire available to ensure a balance of power”, as Parliament had no power to stop itself being suspended. 

If the Lord Ordinary was right and the court had no power, the only option to prevent tyranny would be to “take to the street”.

The Lord President, Lord Carloway, decided that although advice to HM The Queen on the exercise of the royal prerogative of proroguing Parliament was not justiciable on the normal grounds of judicial review, that was not the petitioners’ case.

The Lord President’s opinion states: “If the reasons for the decision were based upon legitimate political considerations, including a desire to see that Brexit occurs, they would not be challengeable. However, that is not the contention.

“The contention is that the reasons which have been proffered by the PM in public (to prepare for a new legislative programme and to cover the period of the party conferences) are not the true ones. The real reason, it is said, is to stymie Parliamentary scrutiny of Government action. 

“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. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying ‘the principles of democracy and the rule of law’ (Moohan v Lord Advocate 2015 SC (UKSC) 1, Lord Hodge at para [35]).”

The circumstances in which the advice was proffered and the content of the documents produced by the respondent, in particular the “clandestine manner” in which the prorogation was sought and the fact that no reasons were given in the pleadings, demonstrated that the “true reason” for the prorogation was “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”.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as “a tactic to frustrate Parliament”, could legitimately be established as unlawful. 

With reference to the dictum of Lord Sumption in the case of Pham v Secretary of State [2015] UKSC 19, there is “a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference”.

This was an “egregious case” of “a clear failure to comply with generally accepted standards of behaviour of public authorities”. 

Lord Brodie’s opinion states: “I can see that just because a government has resorted to a procedural manoeuvre in order to achieve its purpose does not mean that there is necessarily scope for judicial review. Procedural manoeuvres are the stuff of politics, whether conducted in Parliament or in lesser bodies. 

“However, when the manoeuvre is quite so blatantly designed ‘to frustrate Parliament’ at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful.”

It was to be inferred that the principal reason for the prorogation was the “improper purpose” of preventing Parliament holding the Executive to account and legislating with regard to Brexit, and to allow the Government to pursue a policy of a no deal Brexit without further Parliamentary interference, which was “contrary to the rule of law”.

In his opinion, Lord Drummond Young held that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. 

He said: “The primary submission for the respondent was that the petitioners’ challenge to the exercise of the power to prorogue Parliament was non-justiciable. In my opinion this contention must be rejected. 

“The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised. The boundaries of any legal power are necessarily a matter for the courts, and the courts must have jurisdiction to determine what those boundaries are and whether they have been exceeded. That jurisdiction is constitutionally important, and in my opinion the courts should not shrink from exercising it. 

“Consequently, if the expression ‘non-justiciable’ means that the courts have no jurisdiction to consider whether a power has been lawfully exercised, it is a concept that is incompatible with the rule of law and contrary to fundamental features of the constitution of the United Kingdom.”

It was incumbent on the UK Government to show a “valid reason” for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action.

The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny, and the documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

“In my opinion,” he concluded, “that is not a proper purpose for proroguing Parliament. I accordingly conclude that the decision to prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of the prerogative power. It follows that the prorogation was ultra vires.”

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court accordingly made an Order declaring that the Prime Minister’s advice to HM The Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.