Lawyers highlight quirk in parliamentary prorogation legal challenges

Out-Law News | 04 Sep 2019 | 8:20 am | 2 min. read

Courts in Scotland, England and Northern Ireland could conceivably come to three different decisions about the legality of Boris Johnson's decision to prorogue parliament for five weeks until 14 October, lawyers have said.

The Court of Session will rule today in a legal challenge brought in Scotland by a cross-party group of MPs, led by Joanna Cherry of the SNP and Jo Swinson, leader of the Liberal Democrats. A separate challenge, led by campaigner Gina Miller and former prime minister Sir John Major has been lodged with the courts in England and Wales, while campaigner Raymond McCord has begun similar proceedings in Northern Ireland.

Craig Connal QC of Pinsent Masons, the law firm behind Out-Law, said that each of the judges was being asked to rule on whether the decision to prorogue, or suspend, parliament had been taken for a 'proper purpose'. The prime minister has said he intends to begin a new parliamentary session on 14 October, allowing him to "bring forward an ambitious new legislative programme for MPs' approval".

However, the campaigners believe the decision has been taken in order to prevent parliament from blocking a 'no deal' Brexit, while McCord has additionally claimed that leaving the EU without a withdrawal agreement would be an "unconstitutional attack on the people of Northern Ireland".

Speaking to the BBC, Connal said that the possibility of three sets of proceedings "would create a slightly odd situation in which several judges might be asked a version of the same question in different parts of the United Kingdom and conceivably come to entirely different answers".

"But I think the underlying issue is still going to be: can you attack what's been done by alleging what you say is an 'improper purpose'?" he said.

Connal said that the judges would first have to consider whether the courts had the ability to intervene in the process of proroguing parliament at all, given that it "is a political act and has been used in the past as a political act". Having gotten over that hurdle, they would then be required to effectively "look into the mind of somebody who is saying, at least officially, other things - and that's quite a difficult step, I would have thought, for a court to take".

The Court of Session on Friday declined to grant an interim interdict preventing prorogation, as parliament cannot be suspended until 9 September. Instead, Lord Doherty brought forward the date of the full court hearing, and has indicated that a judgment will be delivered this week.

Jim Cormack QC of Pinsent Masons said that the UK Supreme Court, as the final UK court of appeal, would have the ability to hear appeals from all three cases either together or consecutively.

"Subject to issues of timing, this rule may well be applied here," he said.

"The timing wrinkle is that the Scottish proceedings need to be appealed to the Inner House first, whereas the English case is likely to be allowed to 'leapfrog' the Court of Appeal and go straight to the Supreme Court after the first instance court has decided. However, I suspect that every effort would be made in Scotland to see that the cases can be dealt with as a group by the Supreme Court," he said.