PROROGATION PART TWO

When we last left you our readers, you were breathlessly following the legal maneuverings of the UK courts dealing with HRH's order Prorogating Parliament until October 14. The High Court of England declined to intervene, ruling the issue political and non-justiciable. There were, however, two cases proceeding simultaneously, and the second case was in Scotland. 

The High Court of Westminster's ruling was hardly unexpected. The lower court in Scotland, The Lord Ordinary,  dismissed the original petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment and thus  non-justiciable. 

Rare is the Scottish barrister who takes "no" for an answer.  A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia 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 (Brexit).

Three Judges heard the appeal, just like at the 3rd DCA, but the court is a bit older (by two hundred years or so). 

The Chief Judge, The Lord President, Lord Carloway, decided that although advice to HRH the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution. 

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. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young  (the liberal of the three) determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. 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. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament from stopping the PM’s hard Brexit plans.

The court held the Prorogation order null and void. According to Scottish court, Parliament was still in session.

COMING NEXT PROROGATION PART THREE: THE SUPREME COURT OF ENGLAND RULES