Government Legal Politics

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.

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


Court of Session rejects petition to prevent Prorogation

A judge from the Court of Session in Scotland has rejected the petition to prevent Prime Minister Boris Johnson closing Parliament for 5 Weeks from the week commencing 9 Sep 2019.

The petition was presented by a number of MPs led by Joanna Cherry. It was a Judicial Review seeking a ruling that the Prime Minister has acted illegally by proroguing Parliament prior to the UK leaving the EU at the end of October.

Lord Doherty rejected the petition stating:

“It is not for the courts to decide further restraints on prorogation which go beyond those which parliament provides”

The legal team representing the petitioners have launched an appeal to the ruling.

Details of the judgement can be found at

and a copy is available at

Full Judgement (pdf)

Legal Politics

Can Boris Johnson can legally suspend Parliament ?

In more legal shenanigans, MPs determined to thwart Brexit have asked a Scottish Court to decide whether Boris Johnson can suspend Parliament to force through Brexit.

The Court of Session, in Scotland, has agreed to a fast-tracked hearing on whether Boris Johnson can legally suspend (prorogue) Parliament.

At a preliminary hearing Lord Doherty agreed to expedite the timetable for the legal challenge to take place, setting the date for the substantive hearing as Friday 6 September 2019.

A petition which has signatures from 70 MPs from the House of Commons and 5 members of the House of Lords was presented to the court requesting a

Judicial review on the vires of Ministers of the Crown to advise the Queen to prorogue the Westminster Parliament

A copy of the original petition to the court is available:

Petition for Judicial Review (pdf)

It will be interesting to see the outcome of this case and whether/how it will affect further proceedings in the House of Commons.


Prorogation of Parliament

Prorogation is the means (otherwise than by dissolution) by which a Parliamentary session is brought to an end.

It is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to.

More information can be found in a House of Commons Library Briefing Paper at


CBP-8589 (pdf)