Scottish Court Declares Suspension Of Parliament Illegal

Boris Johnson suffers a setback in court in Scotland, including a specific finding that he misled Queen Elizabeth II when he sought her permission to suspend Parliament.

In what can only be described as another setback for British Prime Minister Boris Johnson, a court in Scotland has declared his suspension of Parliament to be illegal, although it’s unclear what impact this ruling will actually have:

LONDON — A Scottish court ruled on Wednesday that Prime Minister Boris Johnson’s decision to suspend Parliament was unlawful, a remarkable rebuke of the government’s hard-line tactics in trying to pull Britain out of the European Union.

A panel of three judges in the Court of Session found that the decision to send lawmakers home for five weeks at the height of the Brexit crisis was “unlawful because it had the purpose of stymying Parliament.”

The main reason for the suspension, known technically as “prorogation,” was Mr. Johnson’s desire to free himself of parliamentary oversight as he pursued an abrupt Brexit, a summary of the ruling said.

“This was an egregious case of a clear failure to comply with generally accepted standards of behavior of public authorities,” the summary said. “It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no-deal Brexit without further parliamentary interference.”

The decision set up a showdown next week at the Supreme Court in London, which had already said it would review the case and take up the question of whether to halt the suspension of Parliament.

The British government said it was “disappointed” by the decision and would file an appeal, calling the suspension “legal and necessary.” The group of lawmakers who brought the case called for Parliament to be immediately reconvened.

“Our understanding is that unless the Supreme Court grants an order in the meantime, Parliament is unsuspended with immediate effect,” said Jolyon Maugham, the lawyer whose group funded the challenge.

But that remained in doubt. The office of the speaker of the House of Commons said decisions about reconvening Parliament rested in the government’s hands.

The Scottish Court ruling conflicted with a separate decision by the High Court in London last week that the suspension was legal. The Scottish Court also reversed a decision of its own last week not to intervene in the case.

In reaching their decision, the judges reviewed documents detailing the government’s deliberations before suspending Parliament. On that basis, they said, the only explanation for the decision to suspend Parliament was the government to keep its Brexit policy from being scrutinized by lawmakers largely opposed to a no-deal Brexit.

Parliamentary oversight, the summary of the ruling said, is “a central pillar of the good governance principle enshrined in the constitution.”

The ruling said that the court would make an order declaring that the prime minister’s advice to Queen Elizabeth II asking her to suspend Parliament, and the suspension of Parliament itself, was unlawful “and is thus null and of no effect.”

That created uncomfortable questions about whether Mr. Johnson had deliberately misled the queen, who acts on the advice of the prime minister.

The Guardian has more, including a discussion of what might happen next:

Scottish appeal court judges have declared Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline is unlawful.

The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned an earlier ruling that the courts did not have the power to interfere in the prime minister’s political decision to prorogue parliament.

Lawyers acting for 75 opposition MPs and peers argued Johnson’s decision to suspend parliament for five weeks was illegal and in breach of the constitution, as it was designed to stifle parliamentary debate and action on Brexit.

The judges failed to issue an interdict, or injunction, ordering the UK government to reconvene parliament, prompting a row over whether the decision meant MPs could go back to the House of Commons.

The court issued an official summary of its decision declaring the prorogation order was “null and of no effect”, but Carloway said the judges were deferring a final decision on an interdict to the UK supreme court, which will hold a three-day hearing next week.

Jolyon Maugham QC, the legal campaigner whose Good Law Project funded the legal action, said he and Aidan O’Neill QC, the group’s lawyer, believed this meant prorogation was suspended with immediate effect unless the UK government won a court order reinstating it.

The UK government will appeal at the UK supreme court against the latest ruling, which also contradicts a decision in Johnson’s favour by senior English judges last week.

The UK supreme court has already scheduled an emergency hearing on both the Scottish and English cases for 17 September, alongside a third challenge brought in the courts in Belfast.

The three Scottish judges, who will issue their reasonings in full on Friday, said unanimously the prorogation was unlawful “because it had the purpose of stymying parliament”.

Carloway, the lord president of the court of session – the supreme civil court of Scotland – said parliamentary scrutiny of the executive was “a central pillar of the good governance principle enshrined in the constitution”.

Lord Brodie said that attempting to frustrate parliament in this way was “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities”.

The court’s summary concluded that Johnson’s prorogation request to the Queen and her decision to accept it “was unlawful and is thus null and of no effect”.

Maugham said: “Our understanding is that unless the supreme court grants an order in the meantime, parliament is unsuspended with immediate effect.

“I’m relieved that my understanding of the functioning of our democracy – that allows parliament to exercise its vital constitutional role – has been vindicated by Scotland’s highest court.

“This is an incredibly important point of principle. The prime minister mustn’t treat parliament as an inconvenience.”

In another report, The Guardian reports that the ruling has led to immediate calls for Johnson to comply with the Order and recall the House of Commons so it can continue debating Brexit as it was doing before it was formally suspended earlier this week. That obviously isn’t going to happen, though, and Johnson’s office has made this clear already. Instead, as noted above, the Scottish ruling is being combined with rulings from Northern Ireland and England in a multi-day hearing set to begin next Tuesday. In the English court ruling by three judges in London, the court reached the opposite conclusion of their Scottish colleagues and rejected the challenge to the suspension of Parliament. There does not appear to have been a ruling from Northern Ireland as of yet. Instead, it appears that case has simply be referred to the Supreme Court of the United Kingdom. In any case, it will be the outcome of next week’s hearing.

I am not nearly sufficiently well educated on Scottish or English law to comment on the legal issues here, but I found these observations on Twitter this morning to be helpful in understanding what happened today and what could happen next week:

Green has some more commentary, as well as retweets of other commentators, on his Twitter feed, and I recommend checking it out if you’re inclined to learn more. Suffice it to say, though, that this is yet another setback for Johnson and that, if the Supreme Court agrees with the Scottish Court that Johnson lied to Queen Elizabeth II then this will have entered territory that I’m pretty sure the United Kingdom has never seen before.

FILED UNDER: Brexit, United Kingdom,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Moosebreath says:

    I wonder if all these legal machinations will run their course before the 5 week suspension of Parliament is completed. If not, they may find that the past is prorogue.

    (sorry — I’ve been waiting for weeks for an opportunity to make that pun).

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  2. OzarkHillbilly says:

    @Moosebreath: Ouch. 30 lashes with a wet noodle for you.

    this will have entered territory that I’m pretty sure the United Kingdom has never seen before.

    I’m pretty sure the UK entered unmapped territory several turns ago.

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  3. Franklin says:

    @Moosebreath: Your patience is admirable. Your wordplay – exquisite.

    ReplyReply
  4. JKB says:

    So they go to court to overturn an action by the government instead of agreeing to a snap election to let the people vote on whom they wish to control the government?

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  5. gVOR08 says:

    It would appear an unwritten constitution has the advantage of dispensing with strict constructionism. At least in the Scottish court.

    This leads to a question, Doug, and I’d very much like to see your thoughts. I recently read The Nonsense Factory by Bruce Gibney. It’s an interesting book on how screwed up our legal system is, but not entirely convincing on all points. He makes quite a point of our lawyers being ill equipped to be judges because U.S. law schools do not teach jurisprudence, which I understand to be the philosophy and theory of law. IANAL. Is it true that law schools don’t teach jurisprudence? If true, does it follow that this lack handicaps judges in sorting out their proper role.

    This is somewhat in the context of seeing reviews of Gorsuch’s new book in which his position is apparently pretty close to, ‘I’m a strict constructionist. There can be nothing else.”

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  6. michael reynolds says:

    @JKB:
    You support a man who became president despite the fact that 3 million more people voted for his opponent. We have our system, they have theirs, but it’s a bit rich to hear a Trumpaloon concerned about the will of the people. Even more so in light of your party’s frantic efforts to disenfranchise voters. And as an extra layer of hypocrisy, your indifference to, even your willing embrace, of vote rigging and foreign interference in our elections.

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  7. JohnSF says:

    The UK exceeds the expectations of Marx: we’re playing Brexit as tragedy and farce simultaneously!
    It’s fortunate for the country that the governments mendacity is tempered by its incompetence.

    And my judgement in that matter may shortly be seconded by the Supreme Court. (Or not.)

    Johnson may just avoid a flat accusation of lying to the Queen on the grounds that he was giving formal advice according to Privy Council protocol.
    (And he didn’t in fact give it person: the governments representatives at Council at Balmoral were Rees-Mogg, Baroness Evans, and Mark Spencer)
    But he looks both mendacious and idiotic.
    The scorn of Westminster for this will be monumental.

    Also, the government faces another, related, legal peril.

    The rebels before prorogation took effect passed a device known as a “Humble Address” requiring the government to lay before the House two sets of documents.

    The first relating to government contingency planning and risk assessment for No Deal exit.

    The second relating to ALL government communications relating to prorogation, including those made using non-official channels.

    Apparently (this from David Allen Green’s commentary) a sharp eyed legal mind spotted in Crown depositions in the English court case that certain statements had not been signed off by government lawyers.
    The implication(as I understand it): some information was being withheld, and lawyers were unwilling to risk their necks by signing off that discovery was complete.

    If I undertand correctly, this may potentially lay some people open to contempt of court charges.
    At best it will be another massive blow to their flimsy pretence that prorogation was “nothing to do with Brexit, honest”.

    Oops.

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  8. JohnSF says:

    @JKB:

    So they go to court…

    Well, the they in court are not the they in Commons.
    The cases were brought by private citizens..

    And why the opposition groups did not vote for an election?
    Because they are not fools.
    Even Johnson’s friends don’t trust Johnson.

    His (or more likely Cummings) plan was plain to anyone not wilfully blind: promise an election for early October, and if no cosmetically altered deal looked viable before, wait till Parliament was dissolved, then switch the dates by prerogative power to after November 1.

    No Deal by default, Parliament bypassed.

    And the views of voters on Brexit rendered totally irrelevant.

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  9. Michael Cain says:

    One of the things I find interesting is that next week Parliament would start a previously scheduled three-week-plus recess. So far, Parliament hasn’t acted like Brexit is so urgent that they have to cut their recesses short* or add many working days to the calendar. At least as I count, the prorogation has added three regular working days to the beginning of that recess and two days to the end of it. Does anyone believe that if Parliament gets those five working days back — well, two now that the first three have already passed — they will do anything constructive with them?

    * The government did keep Parliament in town for a week back in February that was initially scheduled to be part of a recess. No Brexit matters were debated that week.

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  10. OzarkHillbilly says:

    @JKB: How Republican of them.

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  11. JohnSF says:

    @Michael Cain:
    This is unusual as normally Parliament is not normally prorogued for the conferences but merely in recess.
    Usually the practice would be 3 weeks recess for conferences, 1 week sitting again, 1 week prorogation, return for Queens Speech
    Recess does not prevent committees from operating if they decide to.
    Also, MPs could have made provision for emergency recall during recess, which they cannot for prorogation.

    And anyone who thinks a government with a “majority” of between zero and minus 22 needs a prolonged period to plan the legislation they will be introducing in the Queen’s Speech and implementing in the next session, might also be interested in a deal I’m offering on purchasing Tower Bridge.

    Parliament’s legislative role is not necessarily the issue, so much as it’s investigatory role.

    IMO one reason for the prorogation was to block investigation of the “negotiations” the government has stated it is carrying on with the EU.
    The actual paucity of which was part of the reason Minister Amber Rudd resigned earlier this week.
    And also preventing investigation of the “Yellowhammer” No Deal preparations and assessments, and related information.

    Some indications are that some govt. “ultras” advocated prorogation till November 1.
    They had a choice between normal and evil and compromised on stupid.

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  12. JohnSF says:

    Well looks like the government has rejected alliance with Farage.
    Reports were Farage offered a pact on condition of a commitment to No Deal and BP got a clear run at c.80 seats.
    (Also has been repeated chatter that Farage privately wanted a peerage and/or US ambassador post.)

    Govt. source according to Sam Coates of Sky News:

    “Neither Nigel Farage nor Aaron banks are fit and proper persons and they shd not be allowed anywhere near government”

    Ouch!
    That has to pretty difficult to row back from.

    So Cummings strategy stands, destroy BP as they destroyed UKIP: park on their lawn and eat their lunch.

    Gamble on being Brexity enough to override protest vote impulse and sweep up all the “loose” leaver vote, accept risk of losses to LibDems.
    Aim for Lab/Con marginals, hope LibDems won’t take too many Con/Lib competitions, and that Lab and Lib will block each other elsewhere.

    35% strategy.

    High risk, but could still win.
    (Though I’d bet against.)

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  13. Moosebreath says:

    @Franklin:

    Thanks for the kind words. I’ll try to live up to them.

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  14. An Interested Party says:

    It’s fortunate for the country that the governments mendacity is tempered by its incompetence.

    That appears to be the growing trend these days all over the world…

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  15. mike shupp says:

    Can we look forward to Queen Elizabeth II testifying in court?

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  16. Just nutha ignint cracker says:

    @gVOR08: Not Doug so I don’t know the answer for sure, but under normal circumstances I would think that since the name of the degree is Doctor of Jurisprudence that jurisprudence would be at least part of the subject matter. On the other hand, I’ve worked for several institutions of higher education and attended several more, so…

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  17. @gVOR08:

    Actually I’d argue it the other way around. For the most part, law school classes, especially the basic ones (Property, Criminal Law, Criminal Procedure, Civil Procedure, Constitutional Law) almost exclusively involve reading and discussing the implications of appellate law decisions from state and Federal Appellate Courts. When I went to school in the early 90s there was very little discussion about the things that newly minted lawyers would be doing once they were sent out into the world such as drafting Complaints, examining and cross-examining witnesses, dealing with clients, or dealing with the more challenging aspects of drafting legal documents such as contracts and other matters, That has changed somewhat over the past 25 years, and een when I was in school there were classes that hit on practical issues such as legal writing and analysis, trial practice and procedure, and the like but enrollment in those classes was limited and generally not available until the 2nd or 3rd years (or 4th for night students). The complaint often was that law schools were training students to be law professors and judges more than lawyers. As one of my professors at the time said, the point of law school was seen as teaching students to think like a lawyer, not necessarily how to be a lawyer.

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  18. Barry says:

    @Doug Mataconis: ” As one of my professors at the time said, the point of law school was seen as teaching students to think like a lawyer, not necessarily how to be a lawyer.”

    I believe that Paul Campos said that he had never gotten a good response to his questions about how they could know that they were doing that.

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