Case Study: Cherry v Advocate General for Scotland - Public Law

This case study analyzes Cherry v Advocate General for Scotland, a significant public law case concerning the prorogation of the UK Parliament. The case addresses the justiciability of the Prime Minister's advice to the Queen, the limitations of the power to advise on prorogation, and whether the pr...Read More

Running head: PUBLIC LAW
PUBLIC LAW
Name of the Student
Name of the University
Author Note

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Issues:
 Whether the recommendation given to Your Majesty by the Prime Minister
concerning prorogation is justiciable?
 What are the limitations of the power to give guidance to the Queen about the
prorogation of the Parliament?
 Whether the prorogation advice had frustrated or prevented the usual parliamentary
function?
 Whether there should exist a codified structure on constitutional authority for the
proper governance of law in the UK or the uncodified structure is satisfactory?
Rule:
The rule of justiciability or court’s power of adjudicating an issue was the main
question of conflict in this case. Further, the fundamental features of the uncodified British
Constitution and its impact on the theory of separation of power has been further discussed in
this case.
Analysis:
The main issue involved in this case was the cluster of two cases, one of which was
bought in the High Court of England and Wales1 , and another was bought in the House of the
Court of Session in Scotland. The case by the Scottish case was bought by a group of 75
parliament members reflecting their concern about a parliamentary prorogation to avoid
further debate that might occur regarding the 31st October’s exit day2. On a similar issue, a
memorandum has been sent to the Prime Minister on 15th of August in reply to his secretary’s
invitation about the beginning of prorogation from 9th to 12th of September. Further, the Prime
1 Miller v The Prime Minister Case history [2019] EWHC 2381 (QB)
2 Cherry v Advocate General for Scotland ([2019] UKSC 41

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Minister formally provided advice to the Queen on 27th and 28th August 2019, to prologue the
Parliament between the mentioned dates. Regarding this issue, the plaintiff bought an action
challenging the legality of the recommendation offered by the Prime Minister regarding the
prorogation. The High Court of England and Wales stated that the allegation bought by
Miller was unjust. Nonetheless, the House of the Court of Session in Scotland stated that the
prorogation was unlawful and made with the purpose of obstructing the peaceful
parliamentary function. The plaintiff then bought a plea against the English court’s verdict
and the Advocate General appealed in contradiction of the Scottish Court’s judgment before
the Supreme Court.
The first issue addressed by the court, in this case, concerned whether the
recommendation offered to Queen Elizabeth II from the Prime Minister Boris
Johnson, regarding prorogation of Parliamentary session is lawful or not. The court believed
that it has dominion to choose regarding the parameters of prerogative power. In the case of
Marbury v. Madison3, the court upheld the judicial power of the American Courts to review
and strike down laws and improper governmental actions. In the present case, the courts have
applied a supervisory authority over the legality of the conduct of the Government for
centuries4. The fairness regarding the suggestion of the Prime Minister to the Queen was
therefore concluded as justiciable.
In the English case of Proclamations5, it was held that the king has no dominant right
unless the law of the land permits him any. Therefore, the court, in the present case, found
that it has supervisory jurisdiction upon the activities of the government as decided in the
Case of Proclamations. Therefore, the Government has a limited prerogative power6. The
court further held that the practice of prerogative power is like the practice of the royal
3 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
4 Case of Proclamations [1610] EWHC KB J22
5 Case of Proclamations [1610] EWHC KB J22
6 Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508;

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prerogative. Therefore, it is very much open to judicial review. Furthermore, no one opposed
the fact of the existence of limited advantageous power of the court in the above-mentioned
case.
It has been further held that the command to prorogue or instructing the monarch to
prorogue by the court can only conflict with constitutional principles referring to its limited
use7. However, such advice to prorogue will be illegal if such prorogation has any kind of
frustrating or preventing effect without any proper justification8. In other words, if such
prorogation is preventing the parliament from doing its work as a legislature or preventing in
carrying out any of the constitutional function or its job to look upon the work of the
executives of the state, then it is unlawful. The court while deciding this question in issue,
depends on the constitutional guidelines about parliamentary sovereignty and democratic
culpability. In another case of Entick v Carrington9, the court apprehended that if the power
of the prorogation is not within its limits, then the executive can discontinue the sessions of
parliament for an indefinite period for discoursing its sovereignty and failure of its obligation
to make and analyze the law. Therefore, there exists a limitation of power on the
Government’s side.
While discussing about the third issue, the court said that the prorogation is not a
general discontinuation by walking off from a queen’s speech, but it has affected the
parliament’s session and most importantly it caused discontinuance in the fulfilling its
constitutional duties for such a long period starting from the summer vacation till the Brexit
deadline, that is in 31st October.
7 Council of Civil Service Unions v Minister for the Civil Service [1984]
8 Burmah Oil Company Ltd v Lord Advocate [1965] AC 75
9 Entick v Carrington [1765] EWHC J98 (KB)

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During the prorogation period, it was held that none of the Houses of the parliament
was allowed to meet or pass legislation. Further, they were not allowed to discuss or conduct
a debate over any Government policy. However, during the 31st October exit day, which
bought a fundamental change in the Constitution of the UK, an exceptional situation in
contrast to the propagation has been considered. It was held that, Parliament possess an
authority to give its opinion about the upcoming change. However, no justification regarding
the decision of prorogation on this occasion has been put forward before the Supreme Court.
Therefore, the court held that the prorogation had frustrated the usual constitutional function
carry out by the parliament. The court further held that considering the fundamental change
bought by the Brexit, preventing the parliament from conducting its sessions and preventing
it from exercising its constitutional power is extremely unreasonable and has a negative
impact of the fundamentals of democracy.
The court, while deciding this case further considered the meaning and function of a
constitution in the running of a state. A constitution is a set of rules, principles and precedents
that constitute the legality of a political group, organization or of a state10. This principles
generally define the governing rule of the entity for which it is made. A constitution can be
both codified and uncodified. It is codified when it is written down in a single document and
uncodified when it does not have any specific written rule but its principles are dependent on
various acts, treaties and cases. For example, the Constitution of the UK11.
However, the concern in this case further raised the urge of the United Kingdom for
having a codified constitution. In one hand, the actual verdict to prorogue Parliament
suggested that the UK indeed require a codified constitution. On the other hand, it has been
held that the court’s decision is a strong resistance of the UK’s prevailing uncodified
10 Rosas, Allan, and Lorna Armati. 2018. EU constitutional law: an introduction. Bloomsbury Publishing,
11 Gordon, Michael. "Brexit: a challenge for the UK constitution, of the UK constitution?." (2016): European
constitutional law review 12.3 409-444.

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arrangements. It has been seen that the UK was under the democratic rule for such a long
period where the supreme constitutional authority is the hand of the House of Lords.
Therefore, it will be difficult for the people and Government to adopt the sovereign culture
where judges of the court will be the supreme monitoring authority of the rigid constitutional
law12.
Therefore, in contrast to this case, it will be definitely beneficial for the UK to have a
organized written constitution as it will promote parliament sovereignty and mitigate the
danger of elective dictatorship from the country which is definitely denoted as a
constitutional imbalance13. In an elective dictatorship, executive powers are used only to win
elections. Furthermore, a codified constitution will reduce the existing conflict between the
decision making authorities of the country. Furthermore, it will ensure the rights of the people
of the country.
Conclusion:
Therefore, it can be concluded from the above-mentioned case, to diminish the
existing conflict between the sovereign and democratic control of the House of Lords and
Parliament in the UK, it is necessary to adopt a uniform codified constitution to ensure the
proper guidance of the codified rules and precedents. It will also be beneficial in the proper
governance of the established legal rules for the people of the UK.
12 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61
13 Australian Communist Party v The Commonwealth [1951] HCA 5

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Bibliography:
Books & Journals:
Gordon, Michael. "Brexit: a challenge for the UK constitution, of the UK constitution?."
(2016): European constitutional law review 12.3: 409-444.
Rosas, Allan, and Lorna Armati. 2018 :EU constitutional law: an introduction. Bloomsbury
Publishing,
Case Law:
Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508;
Australian Communist Party v The Commonwealth [1951] HCA 5,
Burmah Oil Company Ltd v Lord Advocate [1965] AC 75
Case of Proclamations [1610] EWHC KB J22
Cherry v Advocate General for Scotland ([2019] UKSC 41
Council of Civil Service Unions v Minister for the Civil Service [1984]
Entick v Carrington [1765] EWHC J98 (KB)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Miller v The Prime Minister Case history [2019] EWHC 2381 (QB)
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No
2) [2008] UKHL 61