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In this article, UKSC Blog editor, Emma Boffey, an associate at CMS based in Scotland, writes on the legal challenge to the prorogation of the UK Parliament, which will be heard by the UK Supreme Court from Tuesday 17 September 2019.  The UKSC Blog will be live blogging from the appeals this week. 

Widely dubbed the constitutional case of the century, on Tuesday 17 September 2019 the UK Supreme Court will hear three appeals – one from each of the legal jurisdictions making up the United Kingdom – concerning the lawfulness of the current prorogation of the UK Parliament.

Given the constitutional importance of the questions posed in this matter, eleven Justices will hear the appeals, being Lady Hale, President of the Supreme Court; Lord Reed, Deputy President of the Supreme Court; Lord Kerr; Lord Wilson; Lord Carnwath; Lord Hodge; Lady Black; Lord Lloyd-Jones; Lady Arden; Lord Kitchin; and Lord Sales.

In this briefing, we address: what has happened so far and what can we expect of the UK Supreme Court hearing tomorrow?  The UKSC Blog will be live blogging the proceedings from tomorrow.

The story so far: the Cherry case

The Court of Session in Edinburgh has recently found itself in the headlines, as a petition for judicial review – often referred to as the “Cherry case” – has been urgently progressed before it.

In July 2019, a petition for judicial review was raised in Scotland, brought at the instance of a group of MPs, including Joanna Cherry QC MP, the Justice and Home Affairs spokesperson for the SNP at Westminster.  The petition concerned the lawfulness of any steps to be taken by the Government to prorogue the UK Parliament in advance of the UK’s impending exit from the EU on 31 October 2019.

Political events overtook the case’s planned trajectory.  On 28 August 2019, following advice from her Ministers, the Queen signed an Order in Council authorising the prorogation of Parliament.  An urgent motion was brought for interim interdict against any Minister of the Crown taking any steps to implement the Order in Council and for interim suspension of that Order: a hearing was convened before the Court of Session within 24 hours of the Order being signed.  That motion was refused and the petition itself was also refused by a judge in the Outer House.  The UKSC Blog’s Live Blog from the first instance proceedings is available here.

However, on appeal, the Inner House of the Court of Session overturned the decision of the Outer House.  The UKSC Blog’s Live Blog from that appeal hearing is available here. The Lord President (Lord Carloway), Lord Brodie and Lord Drummond Young unanimously concluded that the Prime Minister’s advice to the Queen was a justiciable matter i.e. a matter which the Court could review, that the advice was motivated by the “improper purpose… of stymying” the UK Parliament and that the advice and, therefore, the prorogation of the UK Parliament with effect from 10 September 2019 were unlawful.

The Millar & McCord cases

Alongside the Cherry case, the UK Supreme Court will also hear two further related appeals, which arise from proceedings before each of England & Wales and Northern Ireland’s courts.

In England & Wales, Gina Millar (the businesswoman who brought the UK Supreme Court appeal of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5) also raised proceedings, following the Queen’s signing of the Order in Council.  The former Prime Minister, Sir John Major, the Shadow Attorney General, Baroness Chakrabarti, the Welsh Government and the Scottish Government have all intervened in these proceedings, which were heard on Thursday 5 September 2019 before a specially convened bench comprised of the Lord Chief Justice of England & Wales, Sir Terence Etherton (The Master of the Rolls) and Dame Victoria Sharp, the President of the Queen’s Bench Division. Ms Millar’s judicial review was refused.

In Northern Ireland, Raymond McCord, a high-profile victims’ rights campaigner, launched proceedings before the High Court in Belfast. Alongside the challenge to prorogation, his proceedings also argued the Government’s Brexit strategy will damage the Northern Ireland peace process, undermining agreements struck between the UK and Ireland which support cross-border co-operation between the two nations.  His case was heard at first instance by Lord Justice Bernard McCloskey, but has also been refused.

A “once in a generation” case

Described as a “once in a generation case”, for which there is no direct legal precedent, the UK Government will seek on Tuesday to persuade the UK Supreme Court to overturn the decision of the Inner House of the Court of Session, while meanwhile seeking to defend the decisions issued in England & Wales, and Northern Ireland.

The two key issues the UK Supreme Court will require to consider are:

  1. Whether as a matter of law, the prorogation can be judicially reviewed in circumstances in which it is alleged that it has been requested for what is said to be an improper motive; and
  2. Whether that improper motive – being the alleged stymying of the UK Parliament – has been demonstrated or can be inferred from the evidence made available.

Follow the case this week

As the UK Supreme Court tackles these significant issues this week, there will be many opportunities to engage with the proceedings.

The UK Supreme Court is streaming proceedings live here: https://www.supremecourt.uk/

The UKSC Blog will also be live blogging the proceedings from tomorrow.  Please follow and subscribe to the UKSC Blog here: https://ukscblog.com/