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Joanna Cherry Judicial Review Appeal

At an initial hearing in the Scottish Court of Session held on 3 Sep 2019, a petition for Judicial Review was dismissed by Lord Doherty finding that the PM’s advice on prorogation was, as a matter of high policy and political judgement, non-justiciable. There were no legal standards by which the courts could assess the decision. Even if this was wrong, Lord Doherty added, he was not persuaded, on what he had seen, that the reasons for the advice were unlawful.

The appeal to this decision was heard on 5-6 September and a summary of the appeal was released on 11 September.

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

This is a summary of the opinions of the court, which have been issued in draft form to the parties in light of the urgency of the case. This summary is provided to assist in understanding the court’s judgment. It does not form part of the reasons for the decision. The full opinion of the court is the only authoritative document.

The full opinions will be available on the Scottish Courts and Tribunals website at 12 noon on Friday 13 September 2019.

http://www.scotland-judiciary.org.uk/9/2261/Joanna-Cherry-QC-MP-and-others-for-Judicial-Review

The Lord President, Lord Carloway, decided that although advice to HM 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; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

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 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 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.

The decision has been appealed by the Government to the Supreme Court which is due to be heard on 17 September 2019, together with an appeal by Miller et al on the decision in the case of Miller v The Prime Minister held on 5 September.

Associated articles

https://ukhumanrightsblog.com/2019/09/11/a-tale-of-two-judgments-scottish-court-of-session-rules-prorogation-of-parliament-unlawful-but-high-court-of-england-and-wales-begs-to-differ/

https://theweeflea.com/2019/09/12/heroes-of-the-people-the-politicisation-of-the-judiciary/

R (Gina Miller) v The Prime Minister

by Politicker 0 Comments

An application for a judicial review of the decision to prorogue Parliament was made by Gina Miller and heard at the High Court in London on 6 September 2019. The judgement was published on 11 September 2019.

R (Gina Miller) v The Prime Minister [2019] EWHC 2381

https://www.judiciary.uk/judgments/press-statement-gina-miller-v-the-prime-minister-others/

The court concluded that the claim, that the advice given was unlawful and an abuse of power, is not capable of being determined by the courts (i.e.the claim is non justiciable).

The court also certified pursuant to section 12(3A)(c) of the Administration of Justice Act 1969 that a sufficient case for an appeal to the Supreme Court has been made out to justify an application for leave to bring such an appeal.

The appeal has been scheduled for a hearing in the Supreme Court next Tuesday, 17 Sep 2019.

Ministers’ obligation to comply with the law

Jeremy Corbyn raised a motion in Parliament, on the 9 September, in an attempt to get the Prime Minister to state that he would comply with the law as just passed in the European Union (Withdrawal) (No. 6) Bill.

“That this House has considered the welcome completion of all parliamentary stages of the European Union (Withdrawal) (No. 6) Bill and has considered the matter of the importance of the rule of law and Ministers’ obligation to comply with the law.”

The motion was put agreed without a vote.

European Union (Withdrawal) (No. 6) Bill update

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European Union (Withdrawal) (No. 6) Bill has passed all stages in the House of Lords and is due to receive Royal Assent sometime today (9 September 2019)

Once a bill has completed all the parliamentary stages in both Houses, it is ready to receive royal assent. This is when the Queen formally agrees to make the bill into an Act of Parliament (law).

https://www.parliament.uk/business/news/2019/september/european-union-withdrawal-no6-bill-proceeds-to-royal-assent/

Read more details about this bill and its fast-track through Parliament at

https://services.parliament.uk/Bills/2017-19/europeanunionwithdrawalno6/stages.html

Brexit Secretary signs order to scrap 1972 Brussels Act

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The Government has signed into law legislation to repeal the Act of Parliament which set in stone Britain’s EU (EEC) membership in 1972.

https://www.gov.uk/government/news/brexit-secretary-signs-order-to-scrap-1972-brussels-act-ending-all-eu-law-in-the-uk

The 1972 Act is the vehicle that sees regulations flow into UK law directly from the EU’s lawmaking bodies in Brussels.

The announcement of the Act’s repeal marks a historic step in returning lawmaking powers from Brussels to the UK. We are taking back control of our laws, as the public voted for in 2016.

The repeal of the European Communities Act 1972 will take effect when Britain formally leaves the EU on October 31.

Speaking after signing the legislation that will crystallise in law the upcoming repeal of the ECA, the Secretary of State for Exiting the EU Steve Barclay said:

This is a clear signal to the people of this country that there is no turning back – we are leaving the EU as promised on October 31, whatever the circumstances – delivering on the instructions given to us in 2016.

The votes of 17.4 million people deciding to leave the EU is the greatest democratic mandate ever given to any UK Government. Politicians cannot choose which public votes they wish to respect. Parliament has already voted to leave on 31 October. The signing of this legislation ensures that the EU Withdrawal Act will repeal the European Communities Act 1972 on exit day.

The ECA saw countless EU regulations flowing directly into UK law for decades, and any government serious about leaving on October 31 should show their commitment to repealing it.

That is what we are doing by setting in motion that repeal. This is a landmark moment in taking back control of our laws from Brussels.

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