THE RULING DENYING TEMPORARY RELIEF PENDING A HEARING TUESDAY

Great stuff.


https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh68.pdf?sfvrsn=0

OPINION OF LORD DOHERTY
The relief sought:
(1)A declarator that it is ultra vires et separatim unconstitutional for any Minister of the Crown, including the Prime Minister, with the intention and aim of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to purport to advise the Queen to prorogue the Union Parliament. 

(2) Interdict against Ministers of the Crown from advising the Queen, with the view or intention of denying before Exit Day sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union, to prorogue the Union Parliament, and for interdict ad interim.

Excerpt of the opinion, and decision on the motion:

"...By an Order in Council made on 28 August 2019 at the Court at Balmoral Her Majesty the Queen ordered that Parliament be prorogued on a day no earlier than Monday 9 September 2019 and no later than 12 September 2019, until Monday 14 October 2019. It is common ground that in making the order Her Majesty accepted the advice of the Prime Minister and the Government....

"...The essence of the petitioners’ argument at the hearing was that the advice which Ministers gave Her Majesty was unlawful and unconstitutional (first) because it was motivated by a desire to restrict Parliament’s ability to hold the Government to account; and that that matter was justiciable; and (second) because the advice frustrated the will of Parliament as expressed in a number of statutes, including the European Union (Withdrawal) Act 2018, the Northern Ireland (Executive Formation) Act 2019, and the Fixedterm Parliaments Act 2011. Mr O’Neill maintained that the petitioners had a prima facie case and that the balance of convenience favoured the grant of interim orders. I continued the motion until this morning in order to consider my decision overnight.

I am not satisfied that it has been demonstrated that there is a cogent need for interim suspension or interim interdict to be granted at this stage. At the moment, a substantive hearing is set down to take place on Friday 6 September, before the first possible date on which Parliament could be prorogued. The petitioners have also enrolled a motion to move that hearing to an earlier date next week. The motion was not formally moved yesterday, but I suspect that it may be moved this morning. In light of the making of the Order in Council my provisional view (but I shall have to hear parties on this) is that the substantive hearing ought to be moved forward to Tuesday or at latest Wednesday of next 5 week. That would facilitate an earlier decision and it would provide greater opportunity for a reclaiming motion (appeal) to be heard before 9 September. At the substantive hearing the court will hear full argument on the issues raised in the petition and answers, and the question will be whether or not the petition is well founded, rather than whether a case for interim orders has been made out. If the petitioners are in the right they will be able to ask the court to grant appropriate remedies at that hearing. It seems to me that even if the petitioners are correct that they have a prima facie case (it was not submitted that it was a strong prima facie case), the balance of convenience does not favour granting interim orders. [9] Since I am not satisfied that there is a cogent need for interim orders, and the balance of convenience does not favour the petitioners, I do not propose to decide whether the petitioners have a prima facie case. I appreciate that that is an unusual course to take, but in the whole circumstances, and bearing in mind the imminent substantive hearing where fuller argument will be possible, I think it is preferable that I do not say more at this stage than is strictly necessary. [10] The motion for interim suspension and interim interdict is refused at this stage...."

Prudential.