Prorogation cases head to court

Judges at Scotland’s Court of Session heard argument today (Tuesday) that the plan to shut Parliament was unconstitutional and ultra vires, in a judicial review brought by SNP MSP Joanna Cherry QC and others. Counsel for the petitioners, Aidan O’Neill QC read from a handwritten note from the Prime Minister describing the September session of Parliament as a ‘rigmarole’ to show the public MPs were ‘earning their crust’ and from an internal document showing plans were being made for prorogation at a time the government was telling the court the matter was academic and hypothetical.

O'Neill stated the Court of Session is not a Royal Court as in England but one created by an Act of Parliament, and that the Scottish tradition of a narrower limit on prerogative powers should be preferred. Turning to the 2017 Supreme Court ruling in Miller, he said prerogative power cannot be used to reduce or remove the rights of individuals. He said the 1689 Claim of Right applies in this court, which limits executive power more than the English 1688 Claim of Right does.

The proceedings were broadcast live online.

An earlier attempt to secure an interim interdict―a court order similar to a temporary injunction―was rejected last week by Lord Doherty.

The Lord Chief Justice, Lord Burnett will decide later in the week whether a judicial review of the government’s decision to ask the Queen to prorogue, brought by businesswoman and activist Gina Miller, can proceed. If the court agrees it can then the full hearing will take place immediately.

In a Guardian newspaper article this week, Miller wrote: ‘The effect of a prorogation of this length will be to prevent parliament from fulfilling its statutory duty to scrutinise any agreement between the UK and the EU.

‘When you add to this the fact that the government must exercise its prerogative powers in good faith, I believe there is a legal principle at stake that qualifies for judicial review.’

Lawyers for the government are likely to argue that Miller’s case would subvert the will of the people.

Writing for NLJ online, Michael Zander QC, Emeritus Professor of Law, LSE, considered whether Miller’s legal challenge could succeed. He notes the Supreme Court’s statements in the 2017 case brought by Gina Miller, R (Miller and another) v Secretary of State for Exiting the EU [2017]UKSC 5, that ‘it is well established that the courts of law cannot enforce a political convention’, as well as retired Supreme Court judge Lord Sumption’s recent statements on BBC Newsnight that the decision is lawful. Zander writes: ‘The consequence of breaking a political convention for bad reasons was political, not legal.’