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This is a live blog of the substantive hearing in the challenge brought by Joanna Cherry QC MP and others for judicial review of the Government’s ability to prorogue the UK Parliament.  Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Kenneth Rose, Rory Thomson, Shona McCusker and Emma Boffey, all from CMS Scotland. 

Update on Thursday 4 September 2019, 1024: Lord Doherty has handed down his decision this morning.  He holds that the power to prorogue Parliament is justiciable in some circumstances, but not in others. He says that the court cannot measure “high policy and political matters” against legal standards: that is up to the electorate and Parliament. He holds there has been no contravention of the rule of law. He notes that it is highly likely his decision will now be appealed to the Inner House of the Court of Session.  Written reasons for the decision are available here.

1556: Aidan O’Neill QC renews his motion and concludes his reply.  Lord Doherty thanks Counsel for their efforts to assist him.  His Lordship says he will attempt to reach a decision overnight and continues the case until 10am tomorrow.

1553: Aidan O’Neill QC submits that the reasons given for prorogation do not stack up. He reiterates that the European Union (Withdrawal) Act 2018 does not provide authorisation for withdrawal; that Parliament has not passed any enabling law.

1549: Aidan O’Neill QC says that the respondent must accept that there are limits on prorogation, and submits that those limits have been breached in the present case.

1540: Aidan O’Neill QC submits that the prorogation is a direct attack on the petitioners’ ability to perform their constitutional duties, and that it is a fundamentally unconstitutional and undemocratic act.

1536: David Johnston QC concludes his submissions.  Aidan O’Neill QC is replying. He submits that this case is about this prorogation in these circumstances, and not simply a more general point about prorogation.

1534: David Johnston QC submits that it cannot realistically be said that it would be unlawful for Parliament to be prorogued for any period. It cannot be the role of the Court to specify the sittings that Parliament should hold. These are political questions whose resolution must be found in the political arena.

1530: David Johnston QC states the Respondent’s position is that the court should not scrutinise the reason for the advice to Her Majesty because it is “non-justiciable”. His secondary position is that the advice was “lawful” and “relevant“. He submits there is nothing unlawful on the Prime Minister advising Her Majesty to prorogue Parliament.

1527: David Johnston QC states Parliament has been proceeding on the basis that with or without a deal, exit is going to take place and the necessary measures are, or have been, put in place to allow for that.

1524: David Johnston QC refers to the Petitioners’ argument that it is not lawful for the UK to leave the EU without further legislation. David Johnston QC does not agree with that analysis. He states this argument is wholly inconsistent with the Petitioners’ previous position and he submits the Petitioners’ argument here is irrelevant.

1521: David Johnston QC refers to the Petitioners’ position that court should apply and “anxious scrutiny”. He submits that the fact that Parliament may not sit for 5 weeks has no direct effect on individual EU law rights.  

1520: David Johnston QC submits there is no prima facie case for interdict and his Lordship does not require to consider balance of convenience. Lord Doherty clarifies that it is a final interdict sought. David Johnston QC then accepts his previous points do not matter.

1519: David Johnston QC submits there is no basis for reduction advanced by the Petitioners that withstands scrutiny.

1513: David Johnston QC considers the Petitioners’  second head of claim. He refers to the Fixed Term Parliaments Act 2011. He notes the key point is that a challenge to the duty of the Prime Minister under that 2011 Act where Parliament is resolved early, would be “non-justiciable“. He states it would involve “inherently political factors” and there are no judicial standards against which the court could scrutinise.

1507: David Johnston QC considers the Petitioners’ first head of claim. First is it is “non-justiciable”. There is no legal standard against which to judge prorogation, this is up to Parliament. He states this is supported by Parliament passing legislation to regulate its sessions. He submits there has never been any general legislative provision about Parliament sitting and there is no need for the court to impose that. Secondly David Johnston QC considers that, even if there were a legal standard, there is nothing to support any breach of that. Thirdly, David Johnston QC states that any prospective prorogation before end of October must comply with the Northern Ireland legislation.  In respect of soveriegnty, he submits it means there are constraints on the executive and the court.

1505: David Johnston QC  turns to his second strand of argument that the claim is “academic“. He says this is firstly the case because of the Northern Ireland legislation. Secondly, it is known that parliament will be sitting and this renders the claim academic. He submits that we are not presented with an “out of control executive“, we are faced with 5 weeks of prorogation. He states that the claim should be viewed in this context.

1459: David Johnston QC  to consider any difference between the Scottish and English approach. He refers to Burmah Oil v LA [1964] UKHL 6 noting there appeared to be no difference between the Scottish and English position on prorogation. He notes it would be highly unlikely that a different approach between Scotland and England would make “any kind of sense“. He suggests a difference in approach in present circumstance would result in an “absurdity“.

1456:  David Johnston QC submits that the court is not equipped to deal with the matter as the subject matter is not appropriate for the court to intervene. He submits that previous case law recognises that the political forum is the proper forum for issues such as dissolution of Parliament to be considered and those that make decisions that do not go down well in Parliament will be held to account. He refers to R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, noting it is consistent with the UK Government position.

1449: David Johnston QC refers to the Fixed Term Parliaments Act 2011 in accordance with which dissolution must take place. He submits s.6 leaves the power to prorogue for the executive.  

1447: David Johnston QC refers to Northern Ireland legislation. He notes that the Petitioners’ concerns that Parliament must be able to sit is addressed by this legislation. He notes that when Parliament wishes to control prerogative, it does so expressly and it has done so in the Northern Ireland legislation. He submits this is important to demonstrate the way you control the constitution is through legislation, not through application to the courts. Finally he observes that the restrictions in the Northern Ireland legislation on when Parliament sits result from a political and not legal process.

1442: David Johnston QC refers to the distinction between jurisdiction and justiciability.  He states he is not arguing tha the Court of Session does not have jurisdiction, he is arguing that this is one case in which that jurisdiction should not be exercised. He says, in other words, this is a “non-justiciable matter”.

1435: David Johnston QC submits that the case law cited involved issues of high policy and political judgement and judges at the highest level have recognised that these are not things with which they are equipped to deal. They cannot be measured against e.g. rationality. He refers to the Sandyford case specifically: he states it shows there are important differences between statutory and perogative powers.

1425: David Johnston QC refers to case law regarding non justiciability in which political matters have been regarded as “non-justiciable“.  He draws similarities with present circumstances and submits that the court is not the correct place for resolution of the issues at hand.

1421: David Johnston QC submits there are no mandatory periods during which Parliament must sit.

1416: David Johnston QC states his second point is that the claim is “academic”. The complaint is that Parliament will be denied the chance to scrutinise BREXIT legislation however, David Johnston QC refers to the Northern Ireland legislation which he submits allows Parliament to set up to the end of October.

1416: David Johnston QC, on behalf of the UK Government invites the court to refuse the Petition. He submits this is something that should not be in the courts at all. He notes the claim is “non-justiciable”. It is high politics and not law, Parliament and not Court is the right place for these matters to be sorted out.

1415: Lord Doherty has returned to the bench and proceedings have resumed.

1301: Court has adjourned for lunch. Proceedings will resume at 1400.

1300: Aidan O’Neill QC says that the prorogation is simply a “power-grab” by the UK Government.  He says that nothing will stop the UK Government – not honour, duty, respect, tradition or convention –  except constitutional law and this court.

1259: Aidan O’Neill QC submits that the court must stop the UK Government removing Parliament’s ability to consider matters in the run-up to Brexit day.

1258: Aidan O’Neill QC says that this matter is too important to be squeezed into five parliamentary days.

1257: Aidan O’Neill QC submits the UK Government are in error of law, insofar as they think they have the power to create a “no deal” Brexit.

1256: Aidan O’Neill QC says it is clear that the prorogation is an unconstitutional attempt to withdraw altogether the possibility of parliamentary scrutiny on the executive’s actions.

1255: Aidan O’Neill QC submits that the purpose of the prorogation is to try to stop the constitution from working as it should do. He says that it is for the courts to determine this fundamental constitutional question raised by this case.

1254: Aidan O’Neill QC says that is no reason for the court to shy away from using its jurisdiction.  He says that this case is fundamentally about the balance of power between the three arms of the state.  He says that prorogation is an illicit attempt by the UK Government to upset that balance, to bring itself above and over the legislature.  The courts as guardians of the rule of law are here to guard against that kind of unconstitutional appropriation of power, in his submission.

1252: Aidan O’Neill QC says that the respondents will say that this matter is too “political” and that the court should not intervene.

1251: Aidan O’Neill QC is starting to conclude and summarise his submission on behalf of the petitioners.

1250: Aidan O’Neill QC says that the UK constitution requires the prorogation power not be used before there has been clear statutory authority, given by Parliament to the UK Government, as to how to proceed in the face of “Brexit day”. Parliament will then decide whether to seek a further extension to Brexit day, revoke Article 50 or to expressly allow for a “no deal” Brexit.  For Parliament to decide, Parliament must sit, says Aidan O’Neill QC.  For that reason, the use of prorogation is unlawful.

1249: Aidan O’Neill QC submits that Parliament should be allowed to carry out its role and hold the UK Government to account, keeping it within its lawful and constitutional bounds.

1248: Aidan O’Neill QC is submitting that this court knows what the law is, knows what the limits of the power of the executive is, and knows that any attempt to push a “no deal” Brexit is unlawful and not in accordance with the UK constitution.

1247: Aidan O’Neill QC says there has been no parliamentary authorisation for a “no deal” Brexit, so the reality of the situation is that the UK Government is in “error of law” when it thinks it can use prorogation to achieve this aim.

1244: Aidan O’Neill QC says that the executive has no power to allow a “no deal” Brexit, without parliamentary approval. A “no deal” Brexit would result in a catastrophic change in individual rights, which Millar says can only be authorised by express parliamentary primary legislation, in his submission.

1242: Aidan O’Neill QC says that the notification under Article 50 can be revoked at any time. There was nothing “inevitable” in the giving of the notification, which was all that Parliament has authorised.

1240: Lord Doherty and Aidan O’Neill QC are discussing what the notification under Article 50 means and permits.

1238: Aidan O’Neill QC says that the UK Supreme Court went wrong in Millar by concluding that the notification of the Article 50 withdrawal notice was “inevitable” and could not be revoked.

1236: Aidan O’Neill QC is addressing the Court, once more, on the meaning of the UK Supreme Court’s decision in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 (“Millar“).

1232: Lord Doherty is asking whether this is truly what the respondents say in defence.  The respondents, say the Court, submit Parliament had in mind a power to restrain and limit the power of prorogation.  Aidan O’Neill QC disagrees.  He says they have “gamed the system“.

1230 Aidan O’Neill QC says that the effect of the prorogation means Parliament will only return for five days before “Brexit day” on 31 October 2019.

1228: Aidan O’Neill QC is addressing part of the respondents’ defence which relates to legislation passed in relation to Northern Ireland.

1227: Aidan O’Neill QC says the court must ask itself why were the specific dates for prorogation chosen in the way they were?  He says that the Prime Minister is “gaming the system“.

1225: Aidan O’Neill QC is addressing the Court on what the decision of the UK Supreme Court in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 means.  He says it did not authorise a “no deal” Brexit, without parliamentary scrutiny.

1220: Aidan O’Neill QC submits that the prorogation is intended to silence Parliament and that this is unlawful.

1219: Aidan O’Neill QC says that the prorogation impedes parliamentary scrutiny in the run-up to 31 October 2019 and the UK leaving the EU.

1218: Aidan O’Neill QC submits that a “no-deal” Brexit is the true purpose of the prorogation and is accordingly, improper and an abuse of executive power.

1217: Aidan O’Neill QC is addressing the Court on a blog post written by Professor Paul Craig of Oxford University on the subject of prorogation.  The blog post is available here.

1215: Aidan O’Neill QC says that the prorogation is not just a way to avoid the sovereignty of Parliament, but is intended to result in a “no-deal” Brexit and consequently, the abolition of individual rights.

1214: Aidan O’Neill QC submits that this court is able, and is no fool.  It is able to draw inferences and should not accept at face value that which is claimed by the Prime Minister in a letter, drafted for him by his special advisers, in which he signs off “carefully crafted” words.

1212: Aidan O’Neill QC says that the court can, and should, draw adverse inference from the lack of affidavit evidence from the Prime Minister. He says that the Prime Minister is characterised by an “unwillingness to speak the truth“.

1211: Aidan O’Neill QC says that the Prime Minister knew of this litigation; he knew about the request for a sworn affidavit; and that invitation has been declined.  He asks, what can the court do about it?

1210: Aidan O’Neill QC is submitting that a sworn affidavit (a statement of evidence) should have been provided. The Prime Minister has not lodged an affidavit in these proceedings.

1208: Aidan O’Neill QC says this is a matter of settled law.

1207: Aidan O’Neill QC says that the royal prerogative can only be used lawfully, for a proper purpose and can be reviewed by the courts through judicial review.

1203: Aidan O’Neill QC says that the power of prorogation has been misused before. Parliament cannot be ignored.

1202: Aidan O’Neill QC says that the government must obey the law as a matter of obligation, not because “it feels like it”.  That obligation is not lessened just because the Order was signed by the Queen.  The fact that advice was given by the Queen to sign is enough to render the act unlawful.  He says the fundamental role of the court is to provide effective remedies against constitutional violations.

1200: The petitioners’ senior counsel, Aidan O’Neill QC, says that advice of the Privy Council has previously been held justiciable.  He says that the UK Government do not deal with this point, because it is against them.

1158: Aidan O’Neill QC says the prorogation is an example of a government abusively seeking to entrench its power, contrary to our constitutional norms.  In those circumstances, he says that the court can declare such action unlawful.

1157: Lord Doherty resumes his position on the bench and invites Aidan O’Neill QC for the petitioners to continue his submissions.

1151: Counsel, media and interested members of the public are assembling in Court 9 once more.

1137: The court has taken a short break for the court transcribers, who are recording these proceedings live.  The proceedings will recommence in around 15 minutes.

1136: Aidan O’Neill QC says that there is no mandate for a “no-deal” Brexit.

1134: Aidan O’Neill QC says that leaving the EU without a deal marks a fundamental and radical change in individual rights.

1132: Aidan O’Neill QC is addressing Lord Doherty on a number of the legal authorities which, he says, demonstrate that the prorogation is a justiciable matter appropriate for the court to consider. He says that we live in a state governed by the rule of law and not by the exercise of arbitrary power.

1129: Aidan O’Neill QC says that the role of the court is to protect this fundamental pillar of the constitution.

1124: Aidan O’Neill QC says that the prorogation attacks parliament sovereignty.

1123: Aidan O’Neill QC says that the court can draw adverse inference from the lack of sworn evidence from the UK Government.

1122: Aidan O’Neill QC says that the court will require to apply Scots law.  He says that this is not a “royal” court; it is the Court of Session.  This highlights that the Court of Session is not subject to the Crown.  Respect is owed by the UK Government to this court.  He says that the manner in which the litigation has been conducted to date shows a certain lack of respect for the court and its jurisdiction.

1118: Aidan O’Neill QC says that the the documents show the prorogation was a decision of the Prime Minister, which is ultra vires and unconstitutional.

1116: Aidan O’Neill QC says that reference to the Queen and sovereign really just means the UK Government: that is the reality of the situation.

1111: In their late adjustments, Aidan O’Neill QC says the UK Government have fundamentally shifted their position on some important points.

1109: Aidan O’Neill QC is now addressing the UK Government’s late adjustments to their pleadings.  He says it is all part of a general disregard for the law and the rules on the part of the UK Government.

1107: Lord Doherty says that it is unfortunate that the documents come late. But the documents do address issues the Court requires to consider.  Lord Doherty says it is regrettable that the documents were not produced before last night, but it would be highly artificial to proceed differently from the basis on which the High Court in London will be asked to consider matters. The regard and weight, if any, the Court should give to the documents is a matter for submissions, says Lord Doherty.  If the petitioners say no regard should be had, then that is open to them to seek to persuade the Court that is the course it should follow.  Lord Doherty allows the documents to be received.

1104: David Johnston QC explains that the documents will be before the English courts in Gina Miller’s case on Thursday, whatever their fate in the Scottish proceedings.  He says they are disclosed because the UK Government takes its duty of candour seriously.  He says it is a matter for Lord Doherty on what to do with them.

1103: David Johnston QC, on behalf of the UK Government, apologises for the lateness of the documents.  He says that the context of this litigation is unusual.  It is a fast-moving political situation, which explains why it was not possible to produce the documents sooner.

1102: Aidan O’Neill QC says that the only sworn evidence before the Court is from the petitioners.  This evidence says that there is not necessary time for Parliament to deal with all business required relating to Brexit before 31 October 2019.  Aidan O’Neill QC says that the respondents’ documents should not be allowed.

1101: Aidan O’Neill QC says that the documents are late, without explanation or apology for the lateness. They are dated in August 2019; he says they could and should have been produced earlier.

1059: Aidan O’Neill QC says that the documents demonstrate the decision was made by the Prime Minister himself, who has refused to give an affidavit on oath on his reasons for the prorogation.

1057: Aidan O’Neill QC says the petitioners do not question the integrity of the respondent’s legal team, but they question the honesty and integrity of the respondent (the UK Government) itself.

1056: Aidan O’Neill QC says it is important to know what the documents say to understand the prejudice caused.  He says they have no attestation of the truth.

1055: Lord Doherty asks Aidan O’Neill QC to focus on what prejudice the documents cause the petitioners, rather than their meaning and content, at this stage.  Aidan O’Neill QC says the prejudice is caused by the documents coming in this form, at this stage, without sworn evidence.

1053: Aidan O’Neill QC says that the Prime Minister has not produced an affidavit, in response to the petitioners’ request last week.

1050: Aidan O’Neill QC, on behalf of the petitioners, is addressing what the documents tell the Court about the UK Government’s motives. He says that the petitioners were being actively misled by the UK Government about the prorogation from 15 August 2019.

1047: Aidan O’Neill QC says this is important.  He says these documents will be spoken to by counsel, in accordance with their instructions.  But had they been appended to an affidavit (a sworn statement of evidence), it would be for the witness to speak to the documents on oath i.e. the duty to tell the truth, the whole truth and nothing but the truth.  He says this is an attempt to produce evidence to the court, not subject to the requirement of telling the truth.

1043: Aidan O’Neill QC is addressing the court on the respondent’s Supplementary Note of Argument and Schedule of Documents.  He says this is an attempt to bring documents in late by UK Government.  He says the documents were sent to the petitioners at 10.50pm last night.

1027: Lord Doherty is on the bench. His Lordship deals first with the Lord Advocate’s application to intervene.  Aidan O’Neill QC, for the petitioners, does not object to the application. David Johnston QC, for the respondent, is neutral on the matter.  Lord Doherty allows the application.

1000: There is a short delay to the start of this morning’s proceedings.

0852: Proceedings are due to commence in Court 9, around 10am.

0847: News overnight suggests that the Lord Advocate, James Wolffe QC, the senior Scottish law officer, will apply to intervene today in the Cherry case on behalf of the Scottish Government.  Readers of the UKSC Blog may recall that the Lord Advocate previously intervened in the matter of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.

0841: Good morning from Edinburgh, as the substantive hearing in the Cherry judicial review gets underway today before Lord Doherty, sitting in the Court of Session.  Although the proceedings today are at first instance, the UKSC Blog will be covering this matter live, given its constitutional importance and in anticipation that it may come before the UK Supreme Court in the coming weeks.

To recap, Joanna Cherry QC MP and others seek judicial review of the UK Government’s ability to prorogue the UK Parliament.  Last week, an urgent application for interim orders was brought, following the Queen’s signing of an Order in Council authorising the prorogation.  Although the motion for interim orders was refused by Lord Doherty last week, the judicial review was accelerated and now proceeds to a full hearing today.

Separate challenges in the other jurisdictions of the UK have now also been launched. Raymond McCord, a high-profile victims’ rights campaigner, has brought proceedings before the Courts of Northern Ireland, with a hearing fixed for Friday 6 September 2019. 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 has also commenced proceedings, with a hearing fixed for Thursday 5 September 2019. Applications to intervene in the Millar English proceedings are pending from both John Major, the former Prime Minister of the UK, and the shadow Attorney General, Shami Chakrabarti. Observers might wonder whether, by the time these three cases might reach the UK Supreme Court, they will be conjoined as one.

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