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Joanna Cherry and others v the Advocate General for Scotland - Key involvement from numerous Axiom members in landmark constitutional case

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Joanna Cherry and others v the Advocate General for Scotland - Key involvement from numerous Axiom members in landmark constitutional case


24 September 2019

In the recent case of Joanna Cherry and others v the Advocate General for Scotland, a number of members from Axiom Advocates were instructed for various parties as the case made its way through the Scottish Courts.

The case focused on whether the United Kingdom Government’s prorogation of the Westminster Parliament from 9th September to 14th October 2019 was lawful. The petitioners argued that the purpose or effect of this particular prorogation was to remove the Westminster Parliament’s constitutional role of holding the government politically to account and that this was accordingly unlawful. The petitioners argued the prorogation should be reduced or quashed.

The United Kingdom Government argued that the issues at hand were highly political and were not matters that the courts were equipped to deal with, political matters being more appropriately resolved in the realm of politics and not law. For that reason, the United Kingdom Government argued that the courts should find the petition to be non-justiciable. In the event that the courts found the matter to be justiciable, the United Kingdom Government argued that there was sufficient evidence for the court to be satisfied that the prorogation was not carried out for an improper purpose.

The petitioners sought interim orders from the court in light of the news that the Queen had been advised to prorogue the Westminster Parliament. Lord Doherty in the Outer House refused those interim orders but brought forward the substantive hearing.

At first instance, the substantive hearing was also heard by Lord Doherty ([2019] CSOH 68). Delivering a decision overnight, Lord Doherty found in favour of the respondents, holding that the issues raised by the petition were non-justiciable and, in any event, that the true purpose of the prorogation was borne out in documents lodged by the United Kingdom Government shortly prior to the substantive hearing. He accordingly refused the petition.

The petitioners reclaimed Lord Doherty’s decision. Before the First Division ([2019] CSIH 49), the petitioners argued that Lord Doherty had erred in law by finding the issues raised in the petition not to be justiciable. After a two-day hearing, the First Division (the Lord President, Lord Brodie and Lord Drummond Young) granted the reclaiming motion, recalled the interlocutor of Lord Doherty and granted a declarator to the effect that the prorogation of the Westminster Parliament had been unlawful.

On appeal to the United Kingdom Supreme Court ([2019] UKSC 41), an 11-judge bench heard the United Kingdom Government’s appeal. The appeal was heard alongside the judicial review proceedings brought by Gina Miller in the courts of England & Wales. The High Court of England & Wales had previously ruled Ms Miller’s application to be non-justiciable.

On 24th September 2019, the United Kingdom Supreme Court unanimously found that the issues raised by the petition were justiciable and that the Prime Minister’s action in advising the Queen to prorogue the Westminster Parliament had the effect of preventing the constitutional role of Parliament in holding the Government to account. The decision to prorogue Parliament for five weeks was found to have been taken without any reason. The court accordingly declared the decision to be unlawful and declared the resultant prorogation to be “null and of no effect”.

A number of members of Axiom Advocates were involved at various stages of this important constitutional case. David Welsh, advocate, appeared at all stages throughout the case as junior counsel for the petitioners alongside Aidan O’Neill QC. David Johnston QC appeared for the United Kingdom Government in the Outer House and Inner House hearings with Andrew Webster QC as his junior. Lord Keen of Elie QC appeared with Andrew Webster QC in the Supreme Court on behalf of the United Kingdom Government.

Roddy Dunlop QC appeared for the United Kingdom Government at the interim orders hearing. Kenny McBrearty QC appeared for the BBC and other media at the Inner House hearing, seeking the release of documents referred to in court for the purposes of reporting on the proceedings. James Mure QC appeared on behalf of the Lord Advocate, James Wolffe QC, intervening on behalf of the Scottish Government at the Inner House and Supreme Court stages alongside the Lord Advocate himself in the Supreme Court.