Inner House Rules Prime Minister’s advice to HM the Queen and the prorogation which followed was unlawful

Joanna Cherry QC MP and others v The Advocate General for Scotland [2019] CSIH 49

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union (Brexit).

A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October. The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.

The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action.  The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this.  The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.

The UK Government has sought to appeal the decision to the UK Supreme Court. The Appeal will be heard on Tuesday, 17th September 2019. No order will be made until the appeal is decided.

Summary of judgment of the Inner House can be found here. The full opinions are available here.

Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.

Back

Lord Bannatyne refuses judicial review challenge to homosexuality risk in Zimbabwe

Case comment by Michael Way, advocate

GC (Zimbabwe) v Secretary of State for the Home Department [2019] CSOH 67

Facts

The petitioner was a national of the Zimbabwe. He sought judicial review of the Home Office’s decision to refuse to accept his further submissions as a fresh claim for asylum, under Immigration Rule 353.

The petitioner had entered the UK in April 2016 and made an asylum claim. His claim was refused in September 2017 and his appeal to the First-tier Tribunal was dismissed in May 2018. He was refused permission to appeal by the First-tier Tribunal and Upper Tribunal. Having become ‘appeal rights exhausted’, the petitioner submitted further asylum submissions in February 2019 in terms of Immigration Rule 353.

Issues

The petitioner is an openly gay man. The applicable country guidance case (LZ (Homosexuals) Zimbabwe CG [2011] UKUT 00487 [IAC]) accepts that there is some risk to homosexuals in Zimbabwe, but suggests that there is not a general risk of persecution. Although not decisive, being openly gay might increase risk. Home Office information accepts that being gay in Zimbabwe confers a level a risk but not one, at a general level, that is sufficiently serious to amount to persecution – each case would have to be judged on its particular facts.

The petitioner’s further submissions (and Counsel’s submissions in this petition) sought to link a recent spike in violence and unrest in Zimbabwe to the level of risk that the petitioner might face. This situation would place any vulnerable group at a heightened risk, because the authorities would be less able to offer protection and homophobes might be able to attack gay people with relative impunity. Taking the new evidence as a whole, the decision was said to fail in three ways: (1) to take account of relevant matters; (2) to be supported by adequate reasons; and (3) to demonstrate anxious scrutiny.

The respondent’s position was that the petitioner was seeking to draw a line between two unconnected matters: the spike in violence and the general treatment of homosexuals. The Country Guidance noted that the Zimbabwean authorities do not provide protection to the gay community under normal circumstances. A spike in violence was accordingly irrelevant. In any event the information proffered in the further submissions was general in nature and had been adequately assessed (and dismissed) in the decision letter.

The questions for the Court were therefore:

1. Is there a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the petitioner will be exposed to a real risk of persecution on return to Zimbabwe?
2. Has the decision maker erred in law by failing to take relevant matters into account or by giving inadequate reasons?

Decision

Lord Bannatyne refused the petition (at [69]). His Lordship concluded that there was no realistic prospect of success in front of an immigration judge; the claim was bound to fail (at [60]). His Lordship also considered that there was no error of law in respect of failing to give adequate reasons (at [61]-[64]) or consider relevant matters (at [65]-[66]).

On the first question, Lord Bannatyne accepted the “short and sharp point” made by the respondent at [38] with respect to the general lack of protection from the Zimbabwean authorities. A spike in violence made no difference where there was no protection in the first place. This submission “wholly undermined” the core of the petitioner’s case (at [53]).

To the second question, Lord Bannatyne again preferred the respondent’s submissions. Fundamentally, the reasoning was adequate to entitle the Secretary of State to have arrived at her conclusion. The well-established two stage process for considering fresh claims had been laid out in the decision letter. This process appeared to have been followed. Accordingly there was no error of law.

Analysis

The consideration of asylum and humanitarian protection claims always requires the most anxious of scrutiny by any decision maker. That said, a judicial review challenge to the adequacy of reasons and relevancy of considerations is often hard for a petitioner to successfully make out. This case was no different.

While some might not agree with the substance and implications of the applicable Country Guidance case law, a Tribunal would be bound to apply it unless there are compelling reasons not to. The logic of the respondent’s argument on the first issue was accordingly unassailable.

Representation

Ampersand’s Jamie Gardiner appeared for the respondent.

Back

Lord Doherty rejects Interim Interdict regarding prorogation of Parliament

Following an urgent hearing on Thursday 29 August 2019, Lord Doherty has rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.

The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.

Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.

Opinion of Lord Doherty here.

Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.

Back