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.