Thursday 15 August 2019

The Remain Alliance Strikes Back? Background to the legal challenge to the prorogation of Parliament

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at

(Update: since this blog post was published, Parliament has been prorogued. The blog post explains the background to the Scottish challenge to prorogation, but this first para will be regularly updated as regards this and other legal challenges to prorogation. August 30: a request for interim measures in the Scottish challenge (Cherry and others) was dismissed (although the ruling did not determine the merits of the case). A hearing in this case will be held Tuesday Sept 3rd. In addition, a hearing will be held before Friday Sept 6th in a Northern Ireland case brought by Raymond McCord. A hearing will be held Thurs Sept 5th in a case brought by Gina Miller. John Major has requested to be added as an intervener to this case. August 31: for documentation on the Cherry case, see the Good Law Project blog. September 2: the note of argument for the Cherry case. The Welsh government has intervened in the Miller case. September 4: the Cherry case was unsuccessful at first instance. An appeal has been requested. September 6: the Miller case was unsuccessful at first instance. See the skeleton arguments of Miller and the government.) September 7th: the appeal in the Cherry case was heard on the 5th and 6th September. The judgment will be delivered on Sep 11th. See the summary of the appeal hearing.) September 11: the appeal judgment in the Cherry case found that prorogation was unlawful (see the summary of the judgment). The High Court judgment ruling against Miller's challenge to prorogration was published. September 12: the Scottish appeal ruling in the Cherry case was published. The McCord ruling (which deals with issues other than prorogation) was released; the challengers lost. September 16: An appeal in the McCord case was heard in the Northern Ireland Court of Appeal. The Supreme Court will hear the appeals in Cherry and Miller, with McCord intervening, from Tuesday 17th September to Thursday 19th September. The cases of some of the parties in the Supreme Court appeal are available.)

In 2018, Scots law was thrust four square into the legal maelstrom that is Brexit. The Court of Session in Edinburgh, and latterly the European Court of Justice, were the scene of intense legal wrangling over the intricacies of the UK's departure from the EU. The Wightman case (discussed here), ultimately resolved that Article 50 TEU, the lex specialis for a member State of the European Union to extricate itself from the EU, was unilaterally revocable at the suit of the withdrawing member State. Contemporaneously, the UK's Supreme Court also had to grapple with the Scots law and rest of the UK legal implications of the UK's exit from the EU in the snappily titled case of The UK Withdrawal From the European Union (Legal Continuity) (Scotland) Bill -  A Reference by the Attorney General and the Advocate General for Scotland ([2018] UKSC 64)(discussed here).

The first half of 2019 was a more sedate legal period, with limited Scots law pronouncements on Brexit. The second half of 2019 looks set to be as entertaining as the latter half of 2018. Now that Boris Johnson is fully ensconced in Number 10 Downing Street as the UK's Prime Minister, the likelihood of a No-Deal Brexit appears a near certainty, particularly with the installation of the Brexit clock in No. 10 and hard-line pronouncements emanating from the No. 10 Press Office. 

For Remainers, the coronation of Boris Johnson is of grave concern. The primary reason for their nervousness is the limited time left available to arrange for a managed exit of the UK from the EU. The economic impact of No-Deal Brexit may be extreme. The Office for Budget Responsibility considers a No-Deal Brexit at Halloween to be economically catastrophic, with a forecasted resultant 2% reduction in the economy, a 5% rise in unemployment and a 10% drop in house prices by 2020. Thus, the Remain Alliance is looking to prevent No-Deal Brexit at all costs.

As things stand, the UK will leave the EU, 'come what may', on Halloween, by automatic operation of both UK law (European Union (Withdrawal) Act 2018) and EU law (Article 50(3) TEU). The only way to avoid a No-Deal Brexit is to arrange for Theresa May's Withdrawal Agreement to be approved by both the UK and EU Parliaments, for the UK to seek, and the EU-27 to agree, to a further extension of the Article 50 TEU process or to unilaterally revoke the Article 50 TEU notification, as confirmed by the ECJ in Wightman. An extension of the time period available under the Article 50 TEU process, could then be used to hold a Second Referendum on UK membership of the EU (which Remainers would hope would reverse the original slim majority to leave), to hold a General Election, which would (hopefully for the Remainers but by no means certain) return enough MPs to Parliament who would definitively want to hold a second referendum, revoke Article 50 TEU or seek a managed softer Brexit with the EU. In a similar vein, Remainers hope that a vote of no confidence under the Fixed Term Parliaments Act 2011 would allow a unity government to be installed, appointed to ensure at the least, a softer Brexit with an agreement in place between the UK and the EU.

The one thing that unites all these various permutations is that they would all take time to achieve. The UK Parliament is in recess until the Autumn. Once Parliament returns on the 3rd of September 2019, there are only 10 days until the Conference Season starts with the Lib Dems Conference in Bournemouth, and then Parliament is again suspended.

Prime Minister Johnson, buoyed by positive affirmation from various ERG members, is seriously contemplating proroguing Parliament as a mechanism to ensure that the UK exits the European Union, come what may, on Halloween. Under this scenario, Parliament could be prorogued, meaning that virtually all Parliamentary business ceases, in mid-October just before the Brexit Doomsday clock counts down to zero. Thus, Parliament would be unable to make any Brexit pronouncements or laws until the State Opening of a new Parliament, perhaps on the 1st of November 2019.

This stance is legally uncertain, hence the need for legal clarification, clarification which can be provided by the eminent Senators of the College of Justice of the Court of Session, in Edinburgh.

Thus, the complexities and intricacies of Brexit have led to yet another Scots law conundrum.

The legal team behind the successful Wightman case, have been called back into service. A large cross-party group of MPs and Peers have joined forces to seek a declarator from the Court of Session that proroguing Parliament to simply ensure that Parliament cannot sit, and thus deliberate and enact laws concerning Brexit, would be unlawful.

The legal action is an attempt to delineate the exact legal contours of the scope of the UK Prime Minister's executive prerogative power to prorogue Parliament.

Proroguing Parliament is a well-established feature of the UK constitutional landscape. In the annals of history, proroguing of Parliament, for reasons other than the ending of a session of Parliament or for the holding of a General Election, has taken place only sporadically and in response to various affronts against democracy and constitutional norms.  The choice of Scotland and Scots law for another legal determination is by design, not by accident. First, the most practical reason for electing to go to the Court of Session in Edinburgh, is that that court is in session throughout the summer, in contrast to the position of the courts south of the Border, which are now past the Trinity term, the final term of the judicial calendar. Indeed, the English courts are not due to be back in session before the 1st of October 2019, at Michaelmas.

Lord Doherty, sitting in the Outer House of the Court of Session on Tuesday the 13th of August 2019, has agreed to hear the substantive case on the 6th of September 2019.

Secondly, the Scottish courts may generally be more receptive to the claims pronounced by the pursuers. The system of judicial review furth of the Forth is rather different to that of England. In particular, the judicial review procedure in Scotland is often less formalistic than its English counterpart. Indeed, judicial review in Scotland is often quoted as being generally available as of right (Eba v Advocate General for Scotland (2010 [CSIH] 78)) rather than as a discretionary option in the gift of the English court. However, given this significant legal distinction and the obvious danger of the floodgates argument, Scottish rules as to standing were traditionally rather restrictive, with the pursuer needing to prove both title and interest to sue. Such rules thus limited access to the courts (D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 and Swanson v Manson 1907 SC 426). However, this limitation on access to justice was swept away by the Supreme Court in AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 and given statutory backing via the Courts Reform (Scotland) Act 2014, thus now making Scotland an attractive jurisdictional choice, albeit with the anglicised innovation that leave must be granted by the court.

Additionally, the procedure and remedies available to the Scottish courts under judicial review are commonly agreed to be less formalistic than those pertaining south of the border. One unique feature relied on in the current case is the remedy of declarator.  

A declaratory action is a unique Scots law action before the Scottish courts which simply seeks a declaration from the court that the pursuer has a right (or does not have a right). In the case, the pursuer is simply seeking clarification as to the legal position. As such, the type of legal questions apt for a declaratory action are multifarious (Macnaughton v Macnaughton's Trustees 1953 SLT 240, at p. 244). The main bar to the Scottish courts entertaining a declaratory action is that there would be no legal consequence's flowing from the court's pronouncement (Aberdeen Development Co. v Mackie, Ramsay & Taylor 1977 SLY 177). Thus, the admissibility criterion for the action is that there is a clear, pressing need for the court's decision and that the ruling will have real consequences for the parties. For Continental lawyers, an analogy could realistically be made between this Scottish action and the Article 267 TFEU Preliminary Ruling Procedure, whereby the European Court of Justice will refuse to determine questions of EU law unless the dispute is a real and genuine one between the parties (Foglia v Novello; Wightman). 

The remedy of declarator is a routine request in judicial review cases north of the border.

The present action will seek a declarator that it would be ultra vires for any Minister of the Crown to seek to advise Her Majesty to prorogue Parliament just before the intended date of departure of the UK from the EU, with the sole purpose of ensuring that there is no Parliamentary consideration of No-Deal Brexit. The argument that such an action by Prime Minister Johnson or members of his cabinet would be ultra vires rests on two propositions. First, that in doing so, proroguing Parliament would frustrate both the government's political accountability to Parliament and its legal accountability to the courts and secondly, that the will of Parliament, as expressed in sections 13 and 20 of the European Union (Withdrawal) Act 2018 and the desire to resurrect devolution in Northern Ireland via the passing of the Northern Ireland (Executive Formation) Bill, would be frustrated. As regards the withdrawal legislation, it is argued that the law requires that Parliament needs to approve a deal between the UK and the EU (section 13 of the 2018 Act). 

The main issue facing the pursuers in September may well be the justiciability or otherwise of the question posed. When the substantive arguments are duly aired in court, the UK Government's legal representatives will undoubtedly argue that the exercise of prorogation is a prerogative power unsuitable for judicial pronouncement, as classically set out in de Freitas v Benny [1976] AC 239. In response a number of arguments will no doubt be raised by the pursuers. First, the pursuers will argue that this traditionalist view of the non-justiciability of exercise of Crown prerogative is inappropriate, ever since the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9) created inroads to the absolutist approach to the immunity of Crown decision making (R (Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35). Indeed, the pursuers may make much of the fact that the process of prorogation is now set out in statutory terms, namely the Prorogation Act 1867, and might argue that the process has been affected by virtue of the Fixed Term Parliaments Act 2011. As such, once a prerogative power is placed on a statutory footing, or at least reference to a prerogative power is made in statute, then that power is, in principle, amenable to be judicially reviewed.

It can reasonably be argued that the prerogative power to prorogue Parliament is a two-stage process. First, the Prime Minister and members of the Privy Council provide advice to the Queen on the need to prorogue Parliament and then the Queen formally accedes to that request. It would of course be entirely within the gift of the Queen to refuse to prorogue Parliament, even where the advice of the Privy Council has been to prorogue. To do so, would of course trigger a constitutional crisis, the likes of which the UK has never witnessed for over three centuries. This is a highly remote possibility, however the former aspect of the process is much more likely.

Since prorogation is a two-stage process, it is entirely possible that the courts could hold that one, both or none of the sections of the process could be judicially reviewable. That is, the prorogation process is legally divisible.

The actions of the Queen in the process of prorogation are a classic non-justiciable example of the exercise of the Royal Prerogative. However, the real issue of concern in the present case is the first limb of the process, namely the proferring of advice by Ministers of the Crown, including the Prime Minister. That aspect of prorogation may well be capable of being judicially reviewed, and, fortuitously for the pursuers, the remedy of declarator may well be apposite for just such a claim for they are seeking in essence a simple statement from the court that the Prime Minister can (or cannot) advise the Queen to prorogue Parliament.

However, as stated above, the biggest problem for Remainers is the effluxion of time. Even if the Court of Session were to adjudicate in favour of the pursuers, the judgment may well become a Pyrrhic victory. The UK Government would invariably appeal such a judgment to the Outer House and then to the Supreme Court, freeing the Prime Minister to prorogue Parliament when he sees fit. Additionally, other political events may conspire against Remainers, such that prorogation is the least of their worries.

Barnard & Peers: chapter 27
Photo credit: BBC