Cherry v Advocate General for Scotland
SUMMARY OF PROCEEDINGS ON 3 SEPTEMBER 2019
The following is a summary of the oral submissions at the hearing of Tuesday, 3 September 2019, prepared by a Reporter for Session Cases who was in attendance.
Preliminary matters
1. The court permitted the Lord Advocate to intervene by way of written submission.
2. A similar application by a party litigant was refused on the basis that it did not satisfy the procedural requirements of the relevant rule of court (RCS 58.19(4)) and would not be of assistance to the court.
3. Despite the petitioners’ objection, a supplementary note of argument together with additional productions was also received, although late. The court held that, whilst their lateness was ‘regrettable’, the matters raised in the documents were relevant and required to be considered, and it would be ‘highly artificial’ for the court to proceed on a basis different from that anticipated to be presented to the High Court in London at the hearing due to take place on Thursday this week. It would be a matter for parties to make submissions in respect of the weight to be given, and regard to be had, to those documents if they so wished. The petitioners’ objection to late adjustment of the respondent’s pleadings was also repelled, on the basis that the adjustments simply dealt with questions of law and did not cause any prejudice to the petitioners.
Submissions for the petitioners
5. The petitioners (represented by Aidan O’Neill QC and David Welsh, Advocate) submitted that the case was, fundamentally, about accountability – the political accountability of Government to Parliament, and the legal accountability of Government to the Court. In reality, the Prime Minister sought to hold office without accountability, as highlighted by the documents now lodged by the respondent. This was not a situation which the court could permit. The primary notion of the UK constitution was the preservation of the rule of law and the Government was subject to the law, whether it acted by prerogative power or otherwise. The rule of law protected the sovereignty of Parliament, not the assertion of power by the Executive over the Legislature.
6. Notwithstanding the ‘conventional pieties’ of the Queen acceding to the advice of the Privy Council, the reality was the Prime Minister’s assertion (noted in one of the additional productions recently lodged) that the sitting of Parliament was simply a ‘rigmarole’ intended to show that MPs were ‘earning their crust’. Counsel said that the Government’s approach displayed ‘breath-taking contempt’ for the constitution; the Government considered that constitutional conventions concerning the responsible exercise of powers could be broken because they were not legally enforceable. It was on that basis that the petitioners moved the court to pronounced declarator as sought in the petition, which concerned the unlawfulness of a decision of the Prime Minister, as to which the Cabinet was merely advised (a form of ‘autocracy’ albeit supported by special advisers). In those circumstances, the petitioners also sought reduction of the Order in Council of 28 August 2019 proroguing Parliament, interdict against the UK Ministers, including the Prime Minister, from acting on that Order, and the expenses of seeking to vindicate those rights and to protect the constitution.
7. Counsel for the petitioners submitted that any difference between Scots and English law as to the limitations upon executive power to prorogue Parliament was to be resolved in favour of preferring the more limiting constitutional tradition. The constitutional traditions of English law were not to be preferred ‘by default’ – the Scottish court ought to apply Scots law and tradition. There has never been any doubt that the Executive, even during times of unconstitutional monarchy, was subject to the law and could be called before the courts. The three pillars of state were of equal rank and dignity, and respect was owed by each. In particular, respect was owed by the Executive to this Court, albeit that the manner in which the litigation had been conducted by the respondent to date was said to show a certain lack of respect for the court and its jurisdiction. There was said to be a lack of ‘constitutionally required respect’ shown by the Executive for the legislature. It was not simply ‘politics as usual’ but an attempt to upset the traditional and necessary balance of power between the Executive and legislature in favour of some kind of ‘divine right’. If the power to prorogue Parliament was being used to avoid the political accountability built into our democratic constitution, and if Parliament was to be shut down and silenced, the principle of accountability still arose to be taken up by this Court. The court’s role in the preservation of the rule of law was to ensure accountability insofar as it was for the Executive to give an account of what it claimed to be doing. In the absence of sworn evidence, however, the court was entitled to draw adverse inferences about the reality of Executive action in the present case. There was no deference or presumption that what was being said on the part of the Executive was true. In the present case, the Executive’s action amounted to an attempt to dominate without due and proper regard to Parliament. The use of power in such a way amounted to an attack on, and diminished parliamentary sovereignty (see Prof Paul Craig, ‘Prorogation: Constitutional Principle and Law, Fact and Causation’, Oxford Human Rights Hub, 31 August 2019). The sovereignty of Parliament was a fundamental constitutional principle, and insofar as Parliament was not able to protect that principle, the court must exercise its constitutional duty to do so.
8. The power of prorogation had to be exercised for proper powers, it was necessary to be ‘always vigilant’ against abuse of that power, and it was the province of the court to determine its proper province. There was no inherent legislative power [outside Parliament], only those powers delegated by Parliament or permitted by Parliament to be retained. Accordingly, any purported exercise of powers, which contravened the fundamental purposes for which those powers were left or specifically granted, would be unlawful. This ran directly contrary to the respondent’s position that the exercise of prerogative power was not justiciable or subject to limitation by the courts – that it could be used in any way, and to political advantage if the Executive so wished, and the court could not do anything about it. This was not the case in a state governed by law, rather than ‘whim’ or ‘arbitrary power’. The prerogative was a source of power only available where the case was not regulated by statute, inherent and residual in nature, and it could never be used to defeat or frustrate domestic rights created by Parliament (Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964 SC (HL) 117, Lord Reid at 122, R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, 2018 AC 61). The issue of leaving the EU without any deal would mark a fundamental change in domestic rights created under the European Communities Act 1972, including EU law and derived rights. Those rights would change in a ‘particularly radical way’ should the UK leave the EU without the conclusion of any withdrawal agreement: the ‘no deal Brexit’. The Miller principle made it clear that the exercise of prerogative power could not lawfully be used in such a manner as to defeat, frustrate, limit or remove the rights of individuals, without express Parliamentary authority by way of primary legislation. That is what EU exit would do, and there was no authority for it.
9. The prorogation of Parliament in the circumstances of the present case was precisely an example of the Government abusively seeking to entrench its power contrary to constitutional norms. In those circumstances, the court could declare it to be unlawful (Moohan v Lord Advocate [2014] UKSC 67, 2015 SC (UKSC) 1, Lord Hodge at para 35). It was also a clear expression of the ‘overlapping’ political and legal accountability of the Executive to Parliament and the courts respectively (R (Barclay) v Lord Chancellor (No 2) [2014] UKSC 41, 2015 AC 276, Baroness Hale at para 57). The Government must obey the law as a matter of obligation, and the fact that advice was given and was unlawful was sufficient to render the resulting act of HM Queen unlawful and reducible by the court. Thus, UK Ministers, including the Prime Minister, could be called before the court, interdicted and, if necessary, found in contempt of court. The constitution was a legally limited monarchy, and abuse of the power of prorogation had happened before [in the 17th century], such that those in power were found to have forfeited office by breaching the limits of that power, and attempting to transform a limited power into an ‘arbitrary despotic power’. Parliament does not legislate in vain, and the plain words of the Claim of Right 1689 could not be ignored. The prerogative power could not be exercised contrary to the laws and liberties of the kingdom. Any claim that executive power is unlimited or unfettered was ‘untenable’. It was peculiarly the province of the court to specify those limits, and it was ‘settled law’ that the exercise of power was subject to review according to the ordinary principles of legality, rationality and procedural impropriety (Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, 2009 1 AC 453).
10. The Executive was subject to an obligation owed to the court to cooperate and make candid disclosure ‘by way of affidavit’ of the relevant facts and reasoning behind the decision challenged (Belize Alliance of Conservation v Department of Environment [2004] UKPC 6, 2004 Env LR 38, Lord Walker at 86). There was no sworn evidence in the present case as to the reasoning underlying the exercise of prorogation, at this time, and in this manner, and the petitioners had been subjected to ‘ambush’ by late documentation in the present case. In those circumstances, the court was entitled to draw adverse inferences against the decision maker who was not entitled to the benefit of any doubt. It was necessary to consider the record and determine the credibility and reliability of what was said against a background of an individual [the Prime Minister] whose personal, professional and political life was said to be characterised by ‘incontinent mendacity’ or an unwillingness or inability to acknowledge or speak the truth. The Prime Minister had chosen not to be accountable to this court and sought not to be accountable to Parliament. It was proper for this court critically to examine and sceptically to question the reasoning and justification given. The court ought not to take the documents produced by the respondent at face value, and was required to exercise ‘anxious scrutiny’ as to whether the ultimate intention was to achieve a ‘no deal Brexit’ to the deprivation, diminution and abolition of individual rights, which it was not entitled to do. These matters were governed by the principle of legality. The basic principles of the constitution could not be overridden by ambiguous words (Axa v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122). The reality was that causation was lacking, and the prorogation of Parliament would hamper the Prime Minister in efforts to ‘kick start’ the new legislative agenda (Craig, supra). The true purpose was to avoid accountability to Parliament in the improper exercise of power ‘entrusted’ to the Prime Minister and the Executive. If there was an abuse of power, there was a breach of trust, and those were purely legal concepts. The purported use of the power amounted to a deliberate and conscious abuse as a ‘pre-emptive strike’ intended to ‘silence and disempower’ Parliament in the crucial period in the run up to ‘Exit Day’, which was unlawful (R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513).
11. If Parliament passed the necessary statute, only then would the Executive have authority to effect the withdrawal of the UK from the EU in accordance with whatever terms so stipulated by Parliament. The European Union (Withdrawal) Act 2018, in the face of Government opposition, gave the role to Parliament effectively to scrutinise and make the final decision as to those terms. Parliament did not intend to write a ‘blank cheque’ allowing the UK to ‘crash out’ of the EU. Rather, Parliament intended that it be involved and give approval in statutory form in respect of the outcome of negotiations, and did not authorise the Government simply to give up or allow the passage of time to result in the UK leaving without a deal (R (Miller), supra). That was the obligation upon Parliament in the absence of any power on the part of the Crown itself in failing properly to conduct international negotiations, and nothing had been produced to counter the petitioners’ position that prorogation would leave insufficient time for Parliament to carry out its constitutional function. Notwithstanding that the specific dates did not contravene the Northern Ireland (Executive Formation) Act 2019, this did not allow the Government to ‘game the system’ and to use prorogation for another unlawful purpose.
12. Ultimately, the exercise of power was vitiated by error of law to the extent that the Prime Minister appeared to be of the view that he could push forward, if necessary, with a ‘no deal’ Brexit. There was no such power under law, no authority of Parliament authorising such a course by statute, and such a law was required. The UK Supreme Court had determined correctly (R (Miller), supra) that EU law could be regarded as a direct source of individuals’ rights, the Crown had no power to diminish those rights as a matter of UK constitutional law, and, if those rights were to be removed, altered or diminished by Crown action or inaction, then that could be done only with the express authority of Parliament by enactment to the effect that ‘you can go for no deal’. It was now recognised that the ‘article 50 notification’ was not irrevocable, and the analogy of pulling the trigger and the bullet inevitably reaching the target [discussed in R (Miller)] was incorrect (Case C-621/18 Wightman and others v Secretary of State for Exiting the European Union EU:C:2018:999, [2019] QB 199). On that basis, Parliament enacted the European Union (Notification of Withdrawal) Act 2017, but that authorised the Prime Minister merely to begin the process of withdrawal, and not to end it. There remained the sovereign right to withdraw the notification if it turned out that the negotiated deal, or no deal, turned out to be worse than remaining in the EU, which only Parliament could determine and legislate for in express terms. No such authorisation to end the process of withdrawal existed, nor was it a necessary implication from the 2018 Act (R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563).
13. If Parliament was prorogued, not only was it prevented from holding the Government to account politically, but it was unable to pass the necessary legislation to authorise even a ‘no deal’ Brexit, in which case the court was the only constitutional actor left standing and required to set down the limits of the power of the Executive in the circumstances. Those limits were known to the court from the cases of Miller and Wightman. Accordingly, the petitioners sought interdict against any attempt to ‘push a no deal’ in the absence of express statutory authorisation by Parliament. Whilst it would be preferable for Parliament to make that decision, the courts were forced to do so on the basis that the Executive had ‘shut down’ Parliament. Thereafter, it would be for Parliament to decide whether to mandate the Government to seek extension of ‘Exit Day’, to ‘revoke article 50’ altogether or expressly to allow a ‘no deal’ Brexit. For that to be done, however, Parliament needed to sit. Accordingly, in the circumstances of the present case, the use of the power of prorogation was unlawful.
14. It was accepted that the courts were not generally equipped to determine matters of public policy, but it was argued that the present case was not about public policy, nor did it raise political questions. Fundamentally, it concerned the balance of power amongst the three arms of state and an illicit attempt by the Government to upset that balance and to bring itself above the legislature. The court, as guardian of the constitution and rule of law, was required to guard against that kind of unconstitutional appropriation of power. The cases relied on by the respondent all presupposed the availability of alternative constitutional measures to ensure political accountability, whereas the use of prorogation in the present case was precisely intended to take away that accountability, and to ‘stop politics from working’. The court was required simply to ensure that the constitution worked as it should do, and to determine how far power extended to the Executive and how far it resided in the legislature. Whilst the Government argued that there were no standards by which the Government may be held to account, the fundamental standard was that it should not undermine parliamentary sovereignty by withdrawing altogether the possibility of Parliamentary action. It was not a question of the courts interfering with the dates when Parliament has chosen to sit, but that the Executive was not entitled to use its powers to prevent it from sitting in the circumstances of the present case. The use of the power went directly against parliamentary intention (and obligation) to sit and consider matters in the run up to ‘Exit Day’. The petitioners did not rely on constitutional conventions; the proposed ‘power grab’ by the Executive for its own purposes was simply not permitted by constitutional law.
Submissions for the respondent
16.The respondent (represented by David Johnston QC, and Andrew Webster QC) invited the court to refuse the petitioners’ application. It was submitted that the case raised large constitutional questions, which were highly unusual to come before the court. Ultimately, however, the issue taken by the respondent was that it simply was not something that should be before the court at all – it was non-justiciable.
17.In summary, it was submitted that the claim was non-justiciable insofar as there simply were no judicial tools or standards by which the court could decide whether the ministerial advice at issue was lawful. It was politics or ‘high policy’, not law, and for that reason, the courts were not the right place for these matters to be resolved. Rather, they could be discussed and perhaps resolved in Parliament. More specifically, Parliament had made its own clear provisions as to when it wished to sit, which expressly provided for Parliament to be prorogued at some points and recalled if necessary (Northern Ireland (Executive Formation) Act 2019, s. 3). It would be impossible for the Government lawfully to prevent that from taking place.
18. The respondent took ‘strong issue’ with the suggestion that the Government had acted unconstitutionally. First, the court did not have the necessary tools to assess the legality of political decisions, and Parliament had occupied this area for itself anyway. Secondly, the petitioners’ claim was academic, in the sense that provision had already been made to enable Parliament to sit for certain periods to the end of October. In that sense, the ‘constitutional fear’ which the petitioners raised had been addressed by Parliament itself deciding when it wished to sit. Thirdly, the Claim of Right 1689 did not set out mandatory periods during which Parliament was required to sit, nor when or for how long. Nor did it provide a legal standard by which to measure whether or not a decision to advise HM Queen to prorogue Parliament was lawful. Neither the European Union (Withdrawal) Act 2018, nor the Northern Ireland (Executive Formation) Act 2018 altered that position, and none interfered with or frustrated in any way the constitutional position. Therefore, the petitioners’ claims in that regard ought not to succeed.
19. The key to the issue of non-justiciability was that there was no statute or source of law that regulated prorogation or the advice given to HM Queen in relation thereto. In specific circumstances, Parliament has said ‘no prorogation at this time’ but beyond that prorogation remained a prerogative power. There was no dispute that statute replaced the prerogative that extent, but it had not done so in the present case and the relevant power remained intact.
20. There were no standards of the kind which courts use to control or scrutinise the legality of Executive action. This case concerned an inherently political decision and the courts were not equipped to measure political judgments against legal standards (Shergill v Khaira [2015] AC 359). This was political territory and decision making, which could not be measured by legal standards but only by political judgments which had to permit of a degree of flexibility according to circumstances (Council of Civil Service Unions v Minister for the Civil Service: re GCHQ [1985] AC 374; R (Wheeler) v Prime Minister [2008] EWHC 1409 (Admin)). There was a wide spectrum of opinion, all of which was entitled to expect, but the right forum for resolution of views was not in court (McCLean v First Secretary of State [2017] EWHC 3174 (Admin)). It was not appropriate to impose legal standards on matters of politics.
21. It was necessary to take a more nuanced approach to the rule of law than the petitioners had adopted, in order to understand the proper role of the court. The very fact that the court was faced with trying to weigh political judgments, and the reasons why they were reached, suggested that it was outwith the territory where legal standards could be deployed (Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390). The courts were not used to providing responses as to whether something, such as the dissolution of Parliament, was or was not on the right side of a line. These were cases of high policy and political judgment, with which judges at the highest level had recognised the courts were not equipped to deal. They could not be measured against the court’s normal standards, such as against a standard of rationality, and the law did not superimpose additional legal standards upon political considerations. The highest courts had repeatedly confirmed the lack of standards against which exercise of the prerogative could be assessed (R (Sandiford) v Foreign Secretary [2014] UKSC 44, [2014] 1 WLR 2697). There was a restriction on whether the court will exercise its jurisdiction, and there remained important differences between statutory and prerogative powers. The dissolution of Parliament was a notable example of something within the ‘forbidden area’, and prorogation ‘related to that’. There was also an important distinction between jurisdiction and justiciability. The respondent did not argue that the court did not have jurisdiction: the respondent’s argument was that it should not be exercised in the present case. In other words, this was a non-justiciable matter (R (Barclay), supra). It was ‘telling’ that the petitioners had ‘reshaped’ their case to protest about the denial of sufficient time for proper consideration of withdrawal from the EU, and it could hardly be clearer that there were no judicial standards to consider how much time or parliamentary consideration would be enough. In the absence of statutory regulation, this was purely a matter for Parliament acting as a body.
22. The petitioners’ concern that Parliament must be able to sit has been addressed by specific limits laid down by Parliament itself. Thus, when Parliament wishes to control the prerogative in any particular context, it does so expressly and has done so in relation to prorogation. That was the way, constitutionally, to exercise control of the prerogative – not by appealing to the courts. In essence, the present application invited the court to go beyond what Parliament thought appropriate and to superimpose additional legal requirements. That was not just interference with the political process but also the legislative one. It was not for the courts to devise additional controls, which would require Parliament to sit more often or for longer periods.
23. The respondent argued that the Government’s position was supported by consideration of wider constitutional matters. First, the respondent’s submissions on the petitioners’ particular claim ‘fitted’ with the wider notion of separation of powers, and parliamentary privilege (Coulson v HM Advocate 2015 SLT 438). This was a crucial constitutional principle, which the petitioners’ application clearly violated. The dissolution and prorogation of Parliament were matters that fell within its jurisdiction, not the court’s, because they were inherently political. This was reflected in the Fixed Term Parliaments Act 2011, which expressly preserved the Executive’s power to prorogue. Secondly, there was no dispute that the prerogative power was reviewable by the court but this depended on the subject matter and context in which it was exercised (Re GCHQ, supra). In essence, these points mirror those made about non-justiciability. The proper place for these matters to be scrutinised, of which the dissolution of Parliament was a striking example, was in the political forum, and those who made decisions that did not go down well there would be held to account by Parliament or by the electorate. Thirdly, courts of law did not enforce political conventions, the sanction for non-observance being political and not legal (R (Miller), supra). Such matters should not engage the attention of the courts. This underlined the fact that accountability was an important aspect on which the constitution relied, but accountability to the courts was not the only form of accountability. The courts had been clear in recognising that in some cases accountability had to be found or sought elsewhere, namely in the political process. Fourthly, it was not disputed that it was necessary to be clear about being in a Scottish court in Scotland but no difference as to the result of approach was identified as between Scots or English law. There appeared to be no difference in relation to the prerogative power at issue, and it would be odd if there were any such difference leading to different results in different parts of the UK. It was highly unlikely that a differential approach to the exercise of the prerogative in Scotland or England would make any kind of sense, rather it would be likely to lead to absurdity (Burmah Oil Co (Burma Trading) Ltd, supra). In any event, the need for a justiciable issue was a threshold requirement, and this had not been met where it was essentially a political matter at issue (Gibson v Lord Advocate 1975 SC 136).
24. The petitioners’ claim was academic to the extent of the legislative provisions already made (Northern Ireland (Executive Formation) Act 2019) and the terms of the Order in Council under challenge, which set out the dates when Parliament will sit before and after the period of prorogation. The court was not faced with an Executive that was ‘out of control’ and ‘seeking to close down Parliament’ or ‘remove the franchise’ (cf Moohan, supra). Rather, it was faced with five weeks of prorogation, against a background where statute and the relevant Order in Council had already regulated the sitting days available to parliamentarians.
25. As to the specific grounds of challenge advanced by the petitioners, it was accepted that the Claim of Right 1689 was a fundamental constitutional document, but its relevance was unclear. The key words were that Parliament was to be ‘frequently called’ and ‘allowed to sit’, and freedom of speech and debate secured to members, which the petitioners claim would be breached if the Order in Council were to stand. However, it was up to Parliament to decide what specifics attached to the word ‘frequently’, as to which there had never been any general legislative provision or other basis for the court to impose any such requirements. Even if there were some legal standard, there was nothing to support the proposition of any breach, standing that Parliament does not sit in permanent session, and so adjournment and prorogation were necessarily envisaged. Moreover, the prorogation at issue did not cut across the provisions of the Northern Ireland (Executive Formation) Act 2019, as already mentioned. The petitioners had to maintain that, notwithstanding the legislative requirements, there would be a breach of the Claim of Right unless there were additional sittings to those specified in the 2019 Act. There was nothing in the concept of parliamentary sovereignty that required the courts to decide, or could justify them in deciding, that legislative schemes set up by Parliament needed to be supplemented, such as by means of additional sitting days.
26.The provisions of the European Union (Withdrawal) Act 2018 had no application to an exit without a deal. In that event, there would be no withdrawal agreement to be ratified or approved, nor any reason to amend the definition of ‘Exit Day’ (2018 Act, ss 13 and 20). There was no clear argument as to how these provisions were frustrated and the respondent invited the court to reject that claim. Furthermore, insofar as the petitioners relied upon the terms of the Fixed Term Parliaments Act 2011, any challenge to a recommendation to HM Queen to fix a date for an early general election thereunder would also be non-justiciable for all the reasons already mentioned (2011 Act, s 2(7)).
27. As to remedies, there was no basis for reduction advanced that withstood scrutiny. No legislation beyond the Claim of Right 1689 was relied upon as inconsistent with the advice and Order in Council at issue. With regard to interdict, there was no wrong identified that the courts should seek to interdict.
28. The present application was not concerned with legal requirements for exiting the EU, but prorogation of Parliament and the dates upon which Parliament may stand prorogued or, as the petitioners would have it, not. That did not, of itself, have any direct effect on individuals’ EU law rights. Moreover, the respondent did not agree that it was unlawful to leave the EU with ‘no deal’ unless further legislation was enacted by Parliament. Parliament has proceeded on the basis that, with or without a deal, exit will take place and the necessary measures are being, or have been, put in place to allow for that (European Union (Notification of Withdrawal) Act 2017 and European Union (Withdrawal) Act 2018). In any event, that argument was wholly inconsistent with the basis of the petition.
29. Finally, the reasons for the advice which is the subject of challenge have been set out in the documents disclosed in accordance with the ‘duty of candour’. However, the respondent’s position is that the court should simply not enquire into the reasons for the advice or scrutinise their adequacy. In short, that advice was non-justiciable. If the court wished to do so, however, the respondent submitted that the reasons were lawful, relevant and legitimate. Parliament would be able to sit and consider such matters as it may wish in the period up to October. Parliament had already made provision in relation to a variety of matters which formed the subject of this claim. There was nothing unlawful in the Prime Minister advising HM Queen to prorogue Parliament in order to enable the new government to set out its legislative agenda, to end the very long previous parliamentary session leaving time to complete the few remaining matters, and the specific political considerations of the kind referred to in the relevant documents, having regard to the availability of parliamentary time and the anticipated EU Council on 17 and 18 October. It was not accepted that there was no proper evidence before the court. Moreover, the evidence of the petitioners [the affidavit of the first petitioner, Joanna Cherry QC MP] was untested and essentially amounted to matters of opinion, quite reasonably ‘strongly influenced’ by particular political views. In essence, when the Prime Minister gave advice on prorogation, that necessarily involved political matters and it was a political decision made in a fast moving and highly controversial situation. This was not a situation where the law could properly superimpose additional legal standards on this political process. If the respondent’s position was accepted in that regard, the position of the Lord Advocate did not properly alter the legal analysis.
30. It could not realistically be said that it would be unlawful for Parliament to be prorogued for any period between today and 31 October. It could not be the role of the court to specify the sittings that Parliament should hold, far less those sufficient for proper consideration of Brexit, which was not a matter the court had any means of assessing or enforcing by any legal standard. These were political issues and questions, and their resolution had to be found in the political arena. Accordingly, the petitioners’ application should be refused.
The court adjourned to attempt to reach a decision overnight, and will reconvene at 10am tomorrow.