To prorogue or not to prorogue? (That indeed is the question)

Photo by Hugo Sousa on Unsplash

It was all meant to be so different from Theresa May’s chaotic time in Downing Street, but the last few weeks have not been kind to current UK Prime Minister, Boris Johnson.

He has been attacked for seeking the prorogation (suspension) of Parliament for 5 weeks; he has lost several (critical) parliamentary votes; he also lost his majority in the Commons; and he has been denied the General Election (which many of his critics believe that he secretly craves – despite official statements to the contrary). This last problem having arisen as a result of the restrictions imposed by the Fixed Term Parliaments Act 2011 – passed ironically with the votes of Conservative MPs in the more peaceful days of the UK Coalition Government (2010-15). The law of unintended consequences many of the Prime Minister’s supporters will no doubt lament.

The Prime Minister might have felt some relief last week when both the Queen’s Bench Division of the English High Court and the Outer House of the Court of Session ruled in two separate, but connected, cases that his decision to advise the Queen to prorogue Parliament (by using the Royal Prerogative) was not unlawful (see Gina Miller v the Prime Minister & Others; and Joanna Cherry MP and Others, Petition for Judicial Review both 2019).

That was until 11 September 2019), when the Inner House of the Court of Session (Scotland’s Supreme Civil Court) landed nothing less than a bombshell on the UK Government. Lords Carloway, Brodie and Drummond Young issued an opinion that the circumstances which surrounded the proroguing of Parliament was unlawful:

All three First Division judges have decided that the PM’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 Court will accordingly make 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.

This decision clearly reverses Lord Doherty’s Opinion in the Outer House of the Court of Session which was issued on 4 September 2019.

Professor Stephen Tierney of Edinburgh University’s Law School referred to the judgement as “remarkable”.

In essence, the prorogation of Parliament was a tactical (underhand?) manoeuvre by the UK Government to make it more difficult for the UK Parliament to scrutinise and block it’s attempt to pursue a no deal Brexit by 31 October 2019. For now, the objective of the Government in this regard have been stopped in tracks.

The UK Government has been given leave to appeal against the decision of the Inner House and the matter will be now be determined by the UK Supreme Court at Guildhall, London.

A link to the full Opinion of the Inner House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih49.pdf?sfvrsn=0

Copyright Seán J Crossan, 11 & 13 September 2019

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sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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