Out-Law News | 11 Sep 2019 | 11:25 am | 2 min. read
A panel of three appeal judges of the Inner House of the Court of Session ruled that Boris Johnson acted for "the improper purpose of stymying parliament" when he asked that parliament be prorogued for a period of five weeks, beginning in the early hours of Tuesday morning. That decision is the subject of three separate legal challenges brought in Scotland, England and Northern Ireland.
The government has stated that the prorogation of parliament is necessary for it to deliver a fresh legislative agenda for the country. However, those challenging the government believe that its motivation is to avoid parliamentary scrutiny of its plans to deliver Brexit on 31 October. Last week, the Outer House of the Court of Session ruled that prorogation of parliament was a political matter and not one the court had the power to intervene in. A separate challenge to the High Court in England also failed, although an appeal is expected to be heard by the Supreme Court next week.
Jim Cormack QC
The decision of the Scottish appeal court radically changes the legal landscape ahead of an expected hearing before the UK Supreme Court next week.
The Scottish judges have made no order for prorogation to be cancelled ahead of the Supreme Court hearing. However, Edinburgh-based litigation expert Jim Cormack QC of Pinsent Masons, the law firm behind Out-Law, said that their decision "radically changes the legal landscape".
"Although each of the three appeal judges appears to have followed somewhat different legal reasoning, they have each reached the same result that the advice of the government to HM the Queen was unlawful and therefore also that the prorogation which followed that advice was also unlawful," he said. "On that basis the prorogation has been held to be of no effect."
The UK government has said that it will appeal today's decision to the Supreme Court, which is the final UK court of appeal. Cormack said previously that the Supreme Court could choose to hear appeals from all three cases either together or consecutively.
According to a summary of the Inner House's decision, the Lord President, Lord Carloway, agreed with Outer House judge Lord Doherty that the prorogation of parliament would not usually be reviewable by the courts. However, the "principles of democracy and the rule of law" allowed for review if the purpose of the prorogation was to "stymie parliamentary scrutiny of the executive".
The challengers, a cross-party group of MPs led by Joanna Cherry of the SNP, were able to provide partially-redacted correspondence between the government, going back to 15 August, which in the view of Lord Carloway showed that this was the "true reason" for the prorogation, according to the summary.
Lord Brodie added that the particular circumstances of the prorogation showed "an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities".
The Inner House, the appeal court, will publish its full opinion in the case on Friday.
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