Out-Law News 2 min. read

Parliament prorogation case to go Supreme Court

The UK Supreme Court is to rule on whether suspending the sitting of the UK parliament over the coming weeks is lawful.

The Queen, acting on the advice of UK prime minister Boris Johnson, last week backed the prorogation of parliament for a period of five weeks ending on 14 October. 

However, that move spurred criticism from politicians and campaigners who believe the move is motivated by a desire to reduce the ability of parliamentarians to scrutinise the government's plans on Brexit. The government has refuted that assertion and stated that prorogation of parliament is necessary for it to deliver a fresh legislative agenda for the country.

Three separate legal challenges against prorogation of parliament have been pursued before the courts in England and Wales, Scotland and Northern Ireland respectively.

On Wednesday the Outer House the Court of Session in Edinburgh ruled that it was beyond the scope of the courts in this case to interfere with what it described as a political decision to prorogue parliament. That decision was appealed to the court's Inner House, which heard arguments on the case on Thursday and Friday. The petitioners' request for an interim interdict was rejected by the court on Friday afternoon. A final decision is expected next week.

A separate legal challenge before the High Court in London failed on Friday morning. Businesswoman Gina Miller and former prime minister John Major were among those behind the case. They challenged the advice the prime minister had given to the Queen on the issue of proroguing parliament in this instance. The judge that heard the case said, however, that the move was lawful, but agreed to fast track the appeal to the Supreme Court, leapfrogging the usual step of appeals going to the Court of Appeal.

The appeal is likely to be heard by the Supreme Court on 17 September. Any appeals deriving from the cases being pursued before the courts in Scotland and Northern Ireland on prorogation could be merged with the appeal stemming from the High Court in London.

Litigation expert Richard Dickman of Pinsent Masons, the law firm behind Out-Law, said: "Typically appeals to the Supreme Court take months, sometimes years, but the court can move quickly in urgent cases like this one. The hearing could take one or two days and there will be pressure for a judgment to be handed down quickly given the fast-moving political environment. So there may be a simple ‘yes’ or ‘no’ decision from the court with a more detailed judgment to follow."

"Political events could overtake the proceedings and mean the case is moot. Could this put the brakes on proceedings? That’s a possibility but no matter the political situation at the time of the appeal, the claimants are likely to persist in their case in order to set a principle around prorogation – namely that government must have a proper, clear purpose in order to suspend parliament. Whether the court will still consider the case in those circumstances remains to be seen," he said.

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