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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.

Getting ready for Brexit campaign

If you think that the UK will ever leave the EU you may want to take a look at a new Government initiative, launched on 1 Sep 2019.

The Government has launched a new public information campaign, “Get Ready for Brexit“, that will be available across TV, Social Media Billboards and other platforms.

Government research shows that only 50% of the population think it’s likely the UK will leave the EU on 31 October, 42% of small-to-medium sized businesses are unsure of how they can get ready and just 31% of the British public have looked for information on how to prepare for Brexit.

The campaign will tackle this head on by setting out what all members of the public and business owners might need to do, if anything, to get ready to leave the EU on 31 October.

Audiences including UK citizens intending to travel to Europe and all exporters to the EU will be targeted, alongside groups requiring particular information such as the equine industry and legal professions.

Some of the key actions audiences need to take include:

  • Acquiring an Economic Operator Registration and Identification number to export to the EU. Businesses that are VAT registered will automatically issued an EORI number, but micro businesses still need to register themselves.
  • Obtaining the correct documents to transport goods at the border.
  • Applying for the vital support packages available for businesses, such as grants.
  • Chancellor of the Duchy of Lancaster Michael Gove said:

    Ensuring an orderly Brexit is not only a matter of national importance, but a shared responsibility.

    This campaign will encourage the country to come together to Get Ready for Brexit on 31 October.

    Advertising accompanied with targeted road shows and events will drive people to GOV.UK, which has a new checker tool so audiences can identify what they need to do to get ready for Brexit quickly.

    https://www.gov.uk/brexit

    https://www.gov.uk/get-ready-brexit-check

    There will be how to videos and step by step guides – so whether you are a small business owner, haulier or EU citizen residing in the UK – the actions you need to take to prepare will be clear and simple.

    https://www.gov.uk/government/news/get-ready-for-brexit-campaign-launched

    Parliament is Suspended

    by Politicker 0 Comments

    Parliament has been prorogued, meaning that Parliament has been suspended, for 5 weeks until the 14 October. The formal process took place during the early hours of Tuesday 10 September 2019 amid visible protests from MPs and the Speaker (who is shortly due to retire from his position).

    A number of MPs protesting against the prorogation of Parliamment, holding signs reading “silenced”, attempted to stop the Speaker leaving the House of Commons for the House of Lords and the Speaker said:

    Black Rod, I treat you and what you have to say with respect, and I recognise that our presence is desired by our Majesty the Queen’s Commissioners. They are doing what they believe to be right and I recognise my role in this matter.

    I’m perfectly happy to play my part, but I do want to make the point that this is not a standard or normal prorogation.

    This is not, however, a normal Prorogation. It is not typical. It is not standard. It is one of the longest for decades, and it represents, not just in the minds of many colleagues but for huge numbers of people outside an act of Executive fiat.

    What does “executive fiat” mean ?

    It can probably be interpreted to mean “the enforcement of a rule by people who have absolute power to do so, regardless of democratic process

    The Speaker then led MPs towards the House of Lords for the formal prorogation ceremony. Only MPs from the Government took part in the ceremony leaving Opposition MPs in the House of Commons heckling as MPs left the chamber. Those remaining in the Commons held a “sing-song” in the chamber while the prorogation took place in the House of Lords.

    Remember these are your elected representatives.

    Opposition benches in the House of Lords were empty as Labour and Liberal Democrat peers boycotted the ceremony apparently in protest at the suspension of Parliament.

    The Prorogation of Parliament proceeded to its conclusion with the Lord President winding up:

    “My Lords and Members of the House of Commons:

    By virtue of Her Majesty’s Commission which has now been read, we do, in Her Majesty’s name, and in obedience to Her Majesty’s Commands, prorogue this Parliament to Monday the fourteenth day of this October to be then here holden, and this Parliament is accordingly prorogued to Monday the fourteenth day of October.”

    The Speaker returned to the House of Commons to report back to MPs, but this time Conservative MPs did not return in order to register their protest at the behaviour of other MPs.

    Thus ended this first session of the Fifty-Seventh Parliament that was opened on 13 June 2017.

    Early Parliamentary General Election (No. 2)

    by Politicker 0 Comments

    The Prime Minister moved a motion, on 9 Sep 2019, calling for a early parliamentary general election under the Fixed-term Parliaments Act 2011.

    The motion was put to a vote after 90 minutes of debate with the result 293 votes in favour and 46 votes against.

    Most of the Labour MPs abstained together with members of the SNP party, thus rejecting the possibility of an early General Election.

    The Government lost because it didn’t reach the majority required under the Fixed-term Parliaments Act 2011.

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