MPs seek interdiction in Scotland as challenges also filed in Belfast and London

This article is more than 1 year old

This article is more than 1 year old

Boris Johnson’s decision to prorogue parliament is an unlawful abuse of power, a Scottish court has heard in the first of three legal challenges.

Aidan O’Neill QC, acting for a cross-party group of 75 MPs and peers, told a court in Edinburgh that the prime minister had trampled on more than 400 years of constitutional law by asking the Queen to prorogue parliament solely for political gain.

“We have a constitution ruled by law,” O’Neill told Lord Doherty in the court of session, urging him to issue an interdict – a Scottish court order equivalent to an injunction – forcing the UK government to quash the prorogation order signed by the Queen on Wednesday.

“That is what a constitutional monarchy means,” he said. “It is not some form of autocracy or divine right or that ‘the king can do no wrong’.”

The UK government’s lawyer, Roddy Dunlop QC, argued that the application was invalid and itself unlawful. He said prorogation was clearly a policy decision properly within the powers of a prime minister.

Dunlop said the Queen clearly had the legal authority to suspend parliament if requested by a government, under the crown prerogative. He said the courts had no power to interfere. “It’s the act of the sovereign herself exercising a privilege which is hers alone,” he said.

The hearing on Thursday morning was arranged at short notice in response to Johnson’s decision on Wednesday to suspend parliament early next month. Two other legal challenges were urgently filed in Belfast and London on Thursday.

Doherty said he would rule on the application on Friday morning. If it is upheld, O’Neill believes Johnson will be forced to reverse the decision to prorogue parliament pending an appeal.

The high court in Belfast held a hearing for an emergency injunction brought by Raymond McCord, a victims’ rights campaigner who has argued that a no-deal Brexit would be a breach of the Good Friday agreement.

“We are seeking an urgent injunction to compel Johnson to reverse his advice to the Queen to prorogue parliament,” McCord’s lawyer, Ciaran O’Hare, said after the 20-minute hearing.

Northern Ireland’s lord chief justice, Sir Declan Morgan, interrupted his summer holiday to hear the prima facie arguments. He instructed O’Hare and the government’s defence barrister to return on Friday at 10am for a full hearing with expanded legal arguments.

In London, Gina Miller, the campaigner who mounted a successful legal challenge in 2016 to Theresa May’s attempts to use crown prerogative powers to invoke article 50, lodged papers seeking a judicial review, which is expected to be heard next week.

Whichever side loses in the parallel cases is expected to appeal immediately, and the cases will soon be heard by the supreme court, potentially grouped together. It is the first time in UK legal history the Queen’s decision to prorogue a Westminster parliament has been challenged in court.

O’Neill told the court of session that Johnson was suspending parliament solely to prevent MPs from properly debating and voting on his Brexit strategy before 31 October, sabotaging parliament’s constitutional role. That was “unlawful, unwarranted and unconstitutional,” he said.

O’Neill came close to calling Johnson a liar for claiming Westminster would have enough time to debate a no-deal Brexit. “He knows it is wrong and he says it anyway,” O’Neill said. “That’s what one might call a lie.”

He said the prorogation also meant Johnson would breach the supreme court ruling in the Miller case that it was unlawful for a government to change or remove a citizen’s legal rights under EU law without an act of parliament. He said the court had a duty to step in to ensure the government was properly accountable.

McCord’s solicitors said Johnson’s motive was to frustrate attempts to stop a no-deal Brexit and that he had prorogued parliament “without democratic intent”.

McCord’s case had been due to be heard on 16 September, but was brought forward after his solicitors rushed in an application for an immediate injunction following Johnson’s decision.

Miller has also lodged an urgent application for a judicial review over the prorogation, arguing Johnson’s move was a brazen attempt to prevent the government from being held accountable by parliament.

Her case will be advocated in court by Lord David Pannick QC, widely regarded as one of the leading judicial review barristers in the country.