CHERRY, RECLAIMING MOTION BY JOANNA CHERRY QC MP AND OTHERS AGAINST THE ADVOCATE GENERAL [2019] ScotCS CSIH_49 (11 September 2019)

CHERRY, RECLAIMING MOTION BY JOANNA CHERRY QC MP AND OTHERS AGAINST THE ADVOCATE GENERAL [2019] ScotCS CSIH_49 (11 September 2019)

The advice to prorogue Parliament was unlawful because its true purpose was to restrict Parliamentary scrutiny of Government action regarding Brexit, which is a central pillar of the constitution. The decision was not justified by legitimate political considerations and was intended to stymie Parliament at a critical time. The court has jurisdiction to review and prevent such abuse of power, and the prorogation was therefore null and of no effect.

Citation
[2019] ScotCS CSIH_49
Parties
Petitioners and Reclaimers: Joanna Cherry QC MP and Others; Respondent: The Advocate General; Intervener: The Lord Advocate; Applicants: BBC and Others
Jurisdiction
Scotland
Judgment Date
11 September 2019
Procedural Posture
Judicial Review (reclaiming Motion) / Appeal From Lord Ordinary to Inner House
Outcome
Reclaiming motion allowed; declarator granted; prorogation advice and Order in Council declared unlawful, null and of no effect.
Legal Topics
Prerogative Powers, Parliamentary Sovereignty, Judicial Review, Separation of Powers, Parliamentary Prorogation, Rule of Law
Constitutional Law Administrative Law Public Law Prerogative Powers Parliamentary Sovereignty Judicial Review Separation of Powers Parliamentary Prorogation +1 more

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Parties

Joanna Cherry QC MP and Others

Petitioners and Reclaimers

The Advocate General

Respondent

The Lord Advocate

Intervener

BBC and Others

Applicants

Procedural Posture

Judicial Review (reclaiming Motion) / Appeal From Lord Ordinary to Inner House

Legal Issues

  1. 1 Is the advice to prorogue Parliament justiciable?
  2. 2 Was the advice to prorogue Parliament given for an improper purpose (to stymie Parliamentary scrutiny of Brexit)?
  3. 3 Does the prorogation breach constitutional principles or statutory requirements?

Ratio Decidendi

The advice to prorogue Parliament was unlawful because its true purpose was to restrict Parliamentary scrutiny of Government action regarding Brexit, which is a central pillar of the constitution. The decision was not justified by legitimate political considerations and was intended to stymie Parliament at a critical time. The court has jurisdiction to review and prevent such abuse of power, and the prorogation was therefore null and of no effect.

Court Disposition

Reclaiming motion allowed; declarator granted; prorogation advice and Order in Council declared unlawful, null and of no effect.

Orders

  • Declarator that advice to prorogue Parliament between 9 and 12 September until 14 October is unlawful and null.
  • Order in Council for prorogation declared null and of no effect.