Appeal court says prorogation order ‘void’ but fails to issue injunction for MPs to return

This article is more than 1 year old

This article is more than 1 year old

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.

Timeline The plan to prorogue parliament and the court cases against it Show Hide

The story breaks The Observer breaks the story that Boris Johnson has sought legal advice on closing parliament for five weeks Leaks spread Other media organisations begin to receive leaks that Johnson will make a statement on prorogation Visit to Balmoral Three privy counsellors, including Jacob Rees-Mogg, travel to Balmoral to tell the Queen of the prorogation plan. Cabinet ministers are informed by conference call Protests and protestations Tens of thousands protest against prorogation. Cross-party group of MPs steps up preparation for blocking no deal when parliament makes a brief return Parliament returns Parliament returns and the prime minister loses six votes in six days. MPs vote to prevent a no-deal Brexit, and refuse Johnson's attempts to force them into a general election. Gina Miller case fails Legal campaigner Gina Miller vows to continue her “fight for democracy” after the high court dismissed her claim that the prime minister acted unlawfully in giving advice to the Queen to suspend parliament at a time of momentous political upheaval. Parliament dissolved Parliament is dissolved amid chaotic scenes as some MPs hold up signs saying they have been silenced, try to prevent Speaker John Bercow leaving the chamber, and sing the Red Flag. Scottish court ruling The court of session in Scotland rules that Boris Johnson’s decision to prorogue parliament for five weeks was unlawful. The case will go to the supreme court. Supreme court hearing The Supreme court begins three-day hearing to join together all the appeals and legal challenges to the prorogation. Supreme court finds prorogation was unlawful The judges unanimously decided that prorogation was justiciable, and it was in the power of the court to rule on it. They additionally found that the prorogation was unlawful, as it had the effect of preventing parliament from being able to carry out its constitutional functions. The court found that the prime minister’s advice to the Queen was unlawful, void and of no effect. Their unanimous judgement was that parliament had not been prorogued. Parliament goes back to work.

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.”

Joanna Cherry QC, the Scottish National party MP who was the lead applicant in the case, called for prorogation to be halted. “The court agreed it is unlawful to suspend the UK parliament for the specific purpose of preventing parliament from scrutinising the Brexit process and holding this shambolic Tory government’s extreme Brexit plans to account,” she said.

“This ruling takes us one step closer to ensuring the UK government cancels their shameful prorogation and blatant plot to force through an extreme Brexit. Boris Johnson cannot be allowed to break the law with impunity.”

A UK government spokesperson said: “We are disappointed by today’s decision and will appeal to the UK supreme court. The UK government needs to bring forward a strong domestic legislative agenda. Proroguing parliament is the legal and necessary way of delivering this.”

No 10 sources said the government noted that last week the high court in London did not rule that prorogation was unlawful, which suggests ministers may try to hold back from recalling parliament until an appeal ruling.

A spokeswoman for John Bercow, the Speaker, and the House of Commons authorities said it would be up to Johnson to recall parliament during prorogation. “Any decision to accelerate the meeting of parliament during prorogation is a matter for the government,” she said.

However, calls quickly grew among opposition parties for Johnson to act now to restore sitting for the House of Commons and Lords.

Nicola Sturgeon, Scotland’s first minister, said: “Today’s court of session judgment is of huge constitutional significance – but the immediate political implications are clear. Court says prorogation was unlawful and null and void – so parliament must be recalled immediately to allow the essential work of scrutiny to continue.”

Keir Starmer, the shadow Brexit secretary, said: “I welcome the court’s judgment. No one in their right mind believed Boris Johnson’s reason for shutting down parliament.

“I urge the prime minister to immediately recall parliament so we can debate this judgment and decide what happens next.”

Shami Chakrabarti, the shadow attorney general, added: “This ruling shows that, despite what Boris Johnson has spent his privileged life thinking, he is not above the law. Labour will not allow his elitist shutdown of parliament to enable him to dodge scrutiny and force through a disastrous no-deal Brexit.”

The Liberal Democrat leader, Jo Swinson, tweeted: “Scottish judges have found in favour of 75 MPs (including me and other Liberal Democrats). We argued that Boris Johnson’s parliament shutdown is illegal, and designed to stifle parliamentary debate and action on Brexit.”