The Progogation Litigation — Some Doctrinal Niceties: Cherry v Advocate General [2019] CSIH 49

In a bombshell judgment last week, the Inner House of the Court of Session unanimously held in Cherry v Advocate General [2019] CSIH 49 that Prime Minister Johnson’s advice to prorogue Parliament was unlawful. Eleven judges of the UK Supreme Court will begin hearing the prorogation litigation tomorrow, with submissions to be spread over three days. The Inner House’s analysis of justiciability is much more robust and convincing than the Divisional Court’s (discussed here), but its conclusion on the substance of whether the Prime Minister did indeed act unlawfully fails to consider some important doctrinal niceties.

As to justiciability, as Mark Elliott has persuasively argued, the scope of a prerogative power is pre-eminently a legal question, not a political one. Coke CJ held long ago in the Case of Proclamations that “the King hath no prerogative, but that which the law of the land allows him”. Stating the law of the land — including the scope of the prerogative power to prorogue Parliament — is an uncontroversial part of the judicial function in the United Kingdom. Lord Drummond Young put the point forcefully in Cherry:

The boundaries of any legal power are necessarily a matter for the courts, and the courts must have jurisdiction to determine what those boundaries are and whether they have been exceeded. That jurisdiction is constitutionally important, and in my opinion the courts should not shrink from exercising it (at para. 102. See also here for an important Canadian case on justiciability of prerogative powers).

Whether Prime Minister Johnson violated the law, however, is a more difficult question. As I emphasized in an earlier post, the claimants must make out a ground of review. The judges of the Inner House reasoned in slightly different ways to the conclusion that the prorogation advice was unlawful. The length of the prorogation — five weeks, much longer than prorogations in recent decades, with the clock ticking down towards a No-Deal Brexit on October 31 — was a particular concern for each of the judges.

For Lord Carloway:

The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for Parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake. This is in the context of an anticipated no deal Brexit, in which case no further consideration of matters by Parliament is required. The Article 50 period, as extended, will have expired and withdrawal will occur automatically (at para. 53).

In support of this conclusion, Lord Carloway pointed to the “clandestine manner” in which the prorogation was sought; that prorogation was “mooted specifically as a means to stymie any further legislation regulating Brexit”; the fact that the respondent had provided “remarkably little” justification for the prorogation in the materials before the court; and the absence of any “practical reason” for the “extraordinary length of time” of the prorogation (at paras. 54-56).

In Lord Brodie’s view, based on the material in the record (and, indeed, in the public record), the petitioners were:

…entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference (at para. 89. See also at para. 117, per Lord Drummond Young).

This contributed to Lord Brodie’s conclusion that the prorogation decision in the instant case was so outrageous as to be unlawful as a matter of public law (based, ultimately, on impropriety of purpose):

I can see that just because a government has resorted to a procedural manoeuvre in order to achieve its purpose does not mean that there is necessarily scope for judicial review. Procedural manoeuvres are the stuff of politics, whether conducted in Parliament or in lesser bodies. However, when the manoeuvre is quite so blatantly designed “to frustrate Parliament” at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful… What has led me to conclude that the court is entitled to find the making of the Order unlawful is the extreme nature of the case. A formulation to which I have been attracted is found inchapter 14, Crown Powers, the Royal Prerogative and Fundamental Rights, in Wilberg & Elliott, The Scope and Intensity of Substantive Review(Hart, 2015) at p 374 where the author of the chapter, Sales LJ, as he then was, refers to a group of authorities where the courts had been prepared to review exercises of the Crown’s common law and prerogative powers. The formulation is: “these are egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities”. I see this as an egregious case. Mr O’Neill came to submit that the essence of the illegality here was irrationality (as had been the caseswith the cases referred to by Sales LJ). Mr O’Neill may be right about that, although I would see it as having to do with improper purpose. At all events, I consider the Order to be unlawful and that making it was contrary to the rule of law (at para. 91).

Finally, Lord Drummond Young closely scrutinized the reasons provided for the prorogation. As I have observed before, even though there is no general duty to give reasons at common law (in most jurisdictions), when reasons have been provided courts find it irresistible to scrutinize them closely. Of particular importance for Lord Drummond Young was the absence of any reason in the documents provided to the court which was capable of justifying the length of this particular prorogation (see especially at paras. 120-122):

In my opinion nothing in these documents can be said to provide any rational explanation as to whyParliament must be prorogued as early as 9 September for a period of five weeks. Nor has any other explanation been provided for the length of the prorogation, beyond references to the need to begin a new session of Parliament to promote a new legislative programme. That, of course, does not explain the length of the prorogation; merely the fact that prorogation is required. In these circumstances I have come to the conclusion that the only inference that can properly be drawn on an objective basis is that the government, and the Prime Minister in particular, wished to restrict debate in Parliament for as long as possible during the period leading up to the European Council meeting on 17-18 October and the scheduled date of Britain’s departure from the European Union… The effect of the prorogation under consideration, in particular its length, is that proper Parliamentary scrutiny is rendered all but impossible. As I have noted, I consider that the inference must inevitably be drawn, on a strictly objective basis, that that was the purpose of the prorogation. In my opinion that is not a proper purpose for proroguing Parliament (at paras. 123-124).

Given the impressive speed at which these fully reasoned judgments were produced it might seem churlish to insist on doctrinal niceties. Nonetheless, even where matters of high constitutional principle are at stake, they should be addressed in the relevant doctrinal framework. Such intense focus on justiciability and identifying an objective reason for judicial intervention to declare this prorogation unlawful, has perhaps caused several uncontroversial doctrinal propositions to slip out of view:

1. As the Supreme Court emphasized just last year in R (Gallaher Group) v Competition and Markets Authority [2019] AC 96, reversing the Court of Appeal, language such as “abuse of power” “adds nothing to the ordinary principles of judicial review”, such as rationality, which are the criteria against which the lawfulness of administrative action must be addressed (at para. 41 per Lord Carnwath). Indeed, “[l]egal rights and remedies are not usually defined by reference to the visibility of the misconduct” (at para. 31 per Lord Carnwath).
2. A claimant for judicial review must make out her case, on the balance of probabilities; there is no free-standing burden on administrative officials to justify the lawfulness (including rationality or proportionality) of their actions (see e.g. R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 at p. 113 per Lord Diplock and pp. 122-123 per Lord Scarman. Rossminster was doubted in Haralambous v Crown Court at St Alban’s [2018] AC 236 but not on this point).
3. Where improper purpose is claimed, it is important to identify the dominant purpose: “If the dominant purpose of those concerned is unlawful, then the act done is invalid, and it is not to be cured by saying that they had some other purpose in mind which was lawful” (Earl Fitzwilliam’s Wentworth Estates Co v Minister of Town and Country Planning [1951] 2 KB 284, at p. 307 per Denning LJ. But see Westminster Corporation v London and North Western Railway Company [1905] AC 426, at p. 432, per Lord Macnaughten).
4. Courts will not lightly impute impropriety to executive officials (CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at p. 200 per Cooke J (on irrelevant considerations); see also R (Bancoult) v Foreign and Commonwealth Secretary (No. 3) [2018] 1 WLR 973).
5. Where matters involving political judgement are justiciable, administrative decision-makers benefit from a wide margin of appreciation (see e.g. R (Lord Carlile) v Home Secretary [2015] AC 945, at para. 32 per Lord Sumption).

These principles are not necessarily insurmountable hurdles for the claimants. There is particular force in the contention that a longer prorogation attracts a heavier burden of justification, which the Prime Minister might not be capable of discharging in the present case (see Lord Drummond Young at para. 91). But for the Supreme Court to accept this contention, it will have to be carefully couched in the doctrinal framework of substantive review.

This content has been updated on September 16, 2019 at 16:40.