Moot speech

Good afternoon. 

My name is Rosie Clarke and I am the Junior Counsel representing the respondent Horace Johnston.

I have one submission to make in front of you today my Lord. 

My submission shows that the decision made by the Prime Minister to prorogue Parliament was rational.

If it pleases my Lord, may I now proceed to deal with my submission.

I submit that the decision made in first instances by Mr Justice French is to be upheld, as the decision made by the Prime Minister to prorogue Parliament to ensure Britain left the European Union on the planned “exit day”, was rational.

My Lordship might i draw your attention to page __ of the bundle, indicated by the ____ tab. The case of Associated Provincial Picture Houses against Wednesbury Corporation 1948; is my Lord familiar with the facts of the case?

In this case, Lord Greene states that the decision made must be so unreasonable that no reasonable person or authority would have arrived at it, and thus created the wednesbury unreasonableness test, and irrationality as one of the grounds for judicial review

This concept was interpreted by Lord Diplock in the case of County for Civil Service Unions against Minister for the Civil Service 1985, indicated by the ____ tab is my lord familiar with the facts of this case? 

Lord Diplock interpreted what is the current meaning of irrational as, a decision which is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”

This case raised the scope for what can be deemed as an irrational decision, making it harder to succeed as a basis for judicial review.

This test for irrationality is supported by the case of R against North and East Devon Health Authority 2001. indicated by the ____ tab Is my Lordship familiar with the facts of this case?

In this case, irrationality was described as a decision which “defies comprehension and is reached by flawed logic”

The reasons as to why irrationality possess such a high threshold were offered by Lord Ackner in the case of R against Brind 1991. Indicated by the ____ tab

Is my Lord familiar with the facts of this case? 

The threshold aids in preventing judges from abusing their supervisory powers, by interfering too easily in decisions they may view as unreasonable. 

Without this barrier, the nature of judicial review would cross over into an appeal process in which the merits of the decision are questioned. 

Therefore, a high threshold for irrationality is clearly needed, and it is clear, and think the court would agree, that the Prime Minister did not by this definition act rationally. He acted within his rights, and made a decision which he believed to be in the public interest.

A new approach has been recently adopted in the Courts; a sliding scale of review. This can be seen in the case of Mahmood against Secretary of State for the Home Department in 2001 indicated by the ____ tab.

Is my lord familiar with the facts of the case?

This case resulted in a more flexible approach towards irrationality, in which the scrutiny level is to be altered depending on the context of each case. 

This means that what is to be deemed as rational, is dependent on the individual facts and circumstances of each irrationality case.

A low intensity review is applied in cases involving political judgement, such as the present case questioning the rationality of proroguing Parliament, where judges are less willing to intervene.

And so the “super-wednesbury test” is applied.

This was applied in the case of Nottinghamshire County Council against Secretary of State for the environment 1986 indicated by the ____ tab.

Is my lord familiar with the facts of the case? 

Lord Scarman required an irrational decision to be of “bad faith, improper motive or manifest absurdity”, before the Courts have a duty to intervene.

As such, i find it absurd to categorise the Prime Minister’s decision as “irrational”, as he is no way acted in bad faith towards the public, and had sufficient political motive of leaving the European Union on the planned “exit day” 

And that concludes my  submission, unless I can be of further assistance to my lord, I'd like to proceed with closing my statement.

All of the cases above, clearly demonstrate how the Prime Minister did not act unreasonably, outrageously nor with bad faith.

Therefore, I fail to see how the Court can view the decision to prorogue Parliament, as an irrational one.

On the basis of my submission, I would urge the court to uphold the initial decision made by Mr Justice French