The Remain Alliance Strikes Back? Background to the legal challenge to the prorogation of Parliament


EU Law Analysis: The Remain Alliance Strikes Back? Background to the legal challenge to the prorogation of Parliament

The Remain Alliance Strikes Back? Background to the legal challenge to the prorogation of Parliament

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam
University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.
In 2018, Scots law was thrust four square into the legal maelstrom
that is Brexit. The Court of Session in Edinburgh, and latterly the European
Court of Justice, were the scene of intense legal wrangling over the
intricacies of the UK’s departure from the EU. The Wightman
case (discussed here),
ultimately resolved that Article 50 TEU, the lex specialis for a member State of the European Union to extricate
itself from the EU, was unilaterally revocable at the suit of the withdrawing member
State. Contemporaneously, the UK’s Supreme Court also had to grapple with the
Scots law and rest of the UK legal implications of the UK’s exit from the EU in
the snappily titled case of The UK Withdrawal From the European Union (Legal
Continuity) (Scotland) Bill –  A
Reference by the Attorney General and the Advocate General for Scotland ([2018]
UKSC 64)(discussed here).
The first half of 2019 was a more sedate legal period, with limited
Scots law pronouncements on Brexit. The second half of 2019 looks set to be as
entertaining as the latter half of 2018. Now that Boris Johnson is fully
ensconced in Number 10 Downing Street as the UK’s Prime Minister, the
likelihood of a No-Deal Brexit appears a near certainty, particularly with the
installation of the Brexit
clock
in No. 10 and hard-line pronouncements emanating from the No. 10
Press Office. 
For Remainers, the coronation of Boris Johnson is of grave concern. The
primary reason for their nervousness is the limited time left available to
arrange for a managed exit of the UK from the EU. The economic impact of
No-Deal Brexit may be extreme. The Office
for Budget Responsibility
considers
a No-Deal Brexit at Halloween to be economically catastrophic, with a
forecasted resultant 2% reduction in the economy, a 5% rise in unemployment and
a 10% drop in house prices by 2020. Thus, the Remain Alliance is looking to
prevent No-Deal Brexit at all costs.
As things stand, the UK will leave the EU, ‘come what may’, on
Halloween, by automatic operation of both UK law
(European Union (Withdrawal) Act 2018) and EU
law
(Article 50(3) TEU). The only way to avoid a No-Deal Brexit is to
arrange for Theresa May’s Withdrawal
Agreement
to be approved by both the UK and EU Parliaments, for the UK to
seek, and the EU-27 to agree, to a further extension of the Article 50 TEU
process or to unilaterally revoke the Article 50 TEU notification, as confirmed
by the ECJ in Wightman. An extension
of the time period available under the Article 50 TEU process, could then be
used to hold a Second Referendum on UK membership of the EU (which Remainers
would hope would reverse the original slim majority to leave), to hold a
General Election, which would (hopefully for the Remainers but by no means
certain) return enough MPs to Parliament who would definitively want to hold a
second referendum, revoke Article 50 TEU or seek a managed softer Brexit with
the EU. In a similar vein, Remainers hope that a vote of no
confidence
under the Fixed Term Parliaments Act
2011 would allow a unity government to be installed, appointed to ensure at the
least, a softer Brexit with an agreement in place between the UK and the EU.
The one thing that unites all these various permutations is that
they would all take time to achieve. The UK Parliament is in recess until the Autumn.
Once Parliament returns on the 3rd of September 2019, there are only 10 days
until the Conference Season starts
with the Lib Dems
Conference
in Bournemouth, and then Parliament is again suspended.
Prime Minister Johnson, buoyed by positive affirmation from various
ERG members,
is seriously contemplating proroguing
Parliament as a mechanism to ensure that the UK exits the European Union, come
what may, on Halloween. Under this scenario, Parliament could be prorogued,
meaning that virtually all Parliamentary business ceases, in mid-October just
before the Brexit Doomsday clock counts down to zero. Thus, Parliament would be
unable to make any Brexit pronouncements or laws until the State Opening of a
new Parliament, perhaps on the 1st of November 2019.
This stance is legally uncertain, hence the need for legal
clarification, clarification which can be provided by the eminent Senators
of the College of Justice
of the Court of Session, in Edinburgh.
Thus, the complexities and intricacies of Brexit have led to yet
another Scots law conundrum.
The legal team behind the successful Wightman case, have been called
back into service. A large cross-party group of MPs and Peers have joined
forces
to seek a declarator
from the Court of Session that proroguing Parliament to simply ensure that
Parliament cannot sit, and thus deliberate and enact laws concerning Brexit, would
be unlawful.
The legal action is an attempt to delineate the exact legal contours
of the scope of the UK Prime Minister’s executive prerogative power to prorogue
Parliament.
Proroguing Parliament is a well-established feature of the UK
constitutional landscape. In the annals of history, proroguing of Parliament,
for reasons other than the ending of a session of Parliament or for the holding
of a General Election, has taken place only sporadically and in response to
various affronts against democracy and constitutional norms.  The choice of Scotland and Scots law for
another legal determination is by design, not by accident. First, the most
practical reason for electing to go to the Court of Session in Edinburgh, is that
that court is in session
throughout the summer, in contrast to the position of the courts south of the
Border, which are now past the Trinity term,
the final term of the judicial calendar. Indeed, the English courts are not due
to be back in session before the 1st of October 2019, at Michaelmas.
Secondly, the Scottish courts may generally be more receptive to the
claims pronounced by the pursuers. The system of judicial review furth of the
Forth is rather different to that of England. In particular, the judicial
review procedure in Scotland is often less formalistic than its English
counterpart. Indeed, judicial review in Scotland is often quoted as being
generally available as of right (Eba v
Advocate General for Scotland
(2010
[CSIH] 78
)) rather than as a discretionary option in the gift of the
English court. However, given this significant legal distinction and the
obvious danger of the floodgates argument, Scottish rules as to standing were
traditionally rather restrictive, with the pursuer needing to prove both title
and interest to sue. Such rules thus limited access to the courts (D & J Nicol v Dundee Harbour Trustees
1915 SC (HL) 7 and Swanson v Manson 1907 SC 426). However, this limitation on
access to justice was swept away by the Supreme Court in AXA General Insurance Ltd & Ors v Lord Advocate & Ors
(Scotland)
[2011] UKSC 46 and given statutory backing via the Courts Reform
(Scotland) Act 2014, thus now making Scotland an attractive jurisdictional
choice, albeit with the anglicised innovation that leave must be granted by the
court.
Additionally, the procedure and remedies available to the Scottish
courts under judicial review are commonly agreed to be less formalistic than
those pertaining south of the border. One unique feature relied on in the
current case is the remedy of declarator.  
A declaratory action is a unique Scots law action before the
Scottish courts which simply seeks a declaration from the court that the
pursuer has a right (or does not have a right). In the case, the pursuer is
simply seeking clarification as to the legal position. As such, the type of
legal questions apt for a declaratory action are multifarious (Macnaughton v Macnaughton’s Trustees
1953 SLT 240, at p. 244). The main bar to the Scottish courts entertaining a
declaratory action is that there would be no legal consequence’s flowing from
the court’s pronouncement (Aberdeen
Development Co. v Mackie, Ramsay & Taylor
1977 SLY 177). Thus, the
admissibility criterion for the action is that there is a clear, pressing need
for the court’s decision and that the ruling will have real consequences for
the parties. For Continental lawyers, an analogy could realistically be made
between this Scottish action and the Article 267 TFEU Preliminary Ruling
Procedure, whereby the European Court of Justice will refuse to determine questions
of EU law unless the dispute is a real and genuine one between the parties (Foglia v Novello; Wightman). 
The remedy of declarator is a routine request in judicial review cases
north of the border.
The present action will seek a declarator that it would be ultra
vires for any Minister of the Crown to seek to advise Her Majesty to prorogue
Parliament just before the intended date of departure of the UK from the EU,
with the sole purpose of ensuring that there is no Parliamentary consideration
of No-Deal Brexit. The argument that such an action by Prime Minister Johnson
or members of his cabinet would be ultra
vires
rests on two propositions. First, that in doing so, proroguing
Parliament would frustrate both the government’s political accountability to
Parliament and its legal accountability to the courts and secondly, that the
will of Parliament, as expressed in sections 13 and 20 of the European Union
(Withdrawal) Act 2018 and the desire to resurrect devolution in Northern
Ireland via the passing
of the Northern Ireland (Executive Formation) Bill,
would be frustrated. As regards the withdrawal legislation, it is argued that the
law requires that Parliament needs to approve a deal between the UK and the EU
(section 13 of the 2018 Act). 
The main issue facing the pursuers in September may well be the
justiciability or otherwise of the question posed. When the substantive
arguments are duly aired in court, the UK Government’s legal representatives
will undoubtedly argue that the exercise of prorogation is a prerogative power
unsuitable for judicial pronouncement, as classically set out in de Freitas v Benny [1976] AC 239. In
response a number of arguments will no doubt be raised by the pursuers. First,
the pursuers will argue that this traditionalist view of the non-justiciability
of exercise of Crown prerogative is inappropriate, ever since the GCHQ case (Council of Civil Service Unions v Minister
for the Civil Service
[1984] UKHL 9) created inroads to the absolutist
approach to the immunity of Crown decision making (R (Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth
Affairs
[2016] UKSC 35). Indeed, the pursuers may make much of the fact
that the process of prorogation is now set out in statutory terms, namely the Prorogation
Act 1867, and might argue that the process has been affected by virtue of the
Fixed Term Parliaments Act 2011. As such, once a prerogative power is placed on
a statutory footing, or at least reference to a prerogative power is made in
statute, then that power is, in principle, amenable to be judicially reviewed.
It can reasonably be argued that the prerogative power to prorogue
Parliament is a two-stage process. First, the Prime Minister and members of the
Privy Council provide advice to the Queen on the need to prorogue Parliament
and then the Queen formally accedes to that request. It would of course be
entirely within the gift of the Queen to refuse to prorogue Parliament, even
where the advice of the Privy Council has been to prorogue. To do so, would of
course trigger a constitutional crisis, the likes of which the UK has never
witnessed for over three centuries. This is a highly remote possibility,
however the former aspect of the process is much more likely.
Since prorogation is a two-stage process, it is entirely possible
that the courts could hold that one, both or none of the sections of the
process could be judicially reviewable. That is, the prorogation process is
legally divisible.
The actions of the Queen in the process of prorogation are a classic
non-justiciable example of the exercise of the Royal Prerogative. However, the
real issue of concern in the present case is the first limb of the process,
namely the proferring of advice by Ministers of the Crown, including the Prime
Minister. That aspect of prorogation may well be capable of being judicially
reviewed, and, fortuitously for the pursuers, the remedy of declarator may well
be apposite for just such a claim for they are seeking in essence a simple
statement from the court that the Prime Minister can (or cannot) advise the Queen
to prorogue Parliament.
However, as stated above, the biggest problem for Remainers is the
effluxion of time. Even if the Court of Session were to adjudicate in favour of
the pursuers, the judgment may well become a Pyrrhic victory. The UK Government
would invariably appeal such a judgment to the Outer House and then to the
Supreme Court, freeing the Prime Minister to prorogue Parliament when he sees
fit. Additionally, other political events may conspire against Remainers, such
that prorogation is the least of their worries.
Barnard
& Peers: chapter 27



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