Scottish judges delivered a hammer blow to Boris Johnson today by sensationally ruling Parliament was suspended illegally.
An Edinburgh court decided that prorogation was unlawful because the Prime Minister’s intention had been to ‘stymy’ scrutiny from MPs.
The stage is now set for a titanic showdown at the Supreme Court on Tuesday – with the risk that the monarch will be dragged into the bitter Brexit war.
The judges suggested Mr Johnson misled the Queen about his motivations – concluding he had an ‘improper purpose’.
Remainers claimed that the prorogation of Parliament – which happened in the early hours of yesterday morning by Royal proclamation – was now null and void.
Shadow Brexit secretary Sir Keir Starmer and the SNP’s Joanna Cherry – one of those who brought the case – demanded Parliament be recalled ‘immediately’.
Rebel ringleader Dominic Grieve said Mr Johnson must resign if he has misled the Queen about his motives, saying it would be a ‘very serious matter’.
There was also fury after No10 sources swiped that the Scottish courts had been ‘chosen for a reason’, with critics accusing ministers of ‘pitiful’ behaviour and undermining the rule of law.
Union baron Len McCluskey went further and suggested Mr Johnson should be put under ‘citizens arrest’.
‘My advice to the prime minister is don’t go up to Scotland – you’re liable to face a citizen’s arrest,’ he told Sky News.
Labour MP Ben Bradshaw said Mr Johnson ‘broke the law by closing down Parliament’, and added: ‘Did he also lie to the Queen? Time for Parliament to get back to work.’
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.’
Boris Johnson suffered another setback today as Scottish judges ruled his suspension of Parliament is unlawful. The case is expected to be appealed further at the Supreme Court
Labour MP Ben Bradshaw said Mr Johnson ‘broke the law by closing down Parliament
Scottish MP Joanna Cherry, pictured with lawyer Jo Maugham called the ruling ‘historic’ and ‘fantastic’
Judge Lord Doherty dismissed a challenge against the planned prorogation at the Court of Session last Wednesday, saying it is for politicians and not the courts to decide.
But a panel of three judges in Edinburgh overturned that decision.
What happens next in the Brexit crisis?
Here is how the coming weeks could pan out:
September 14-17: Lib Dem conference takes place in Bournemouth
September 17: Supreme Court hears case on whether prorogation of Parliament was illegal.
September 21-25: Labour conference in Brighton
September 29-October 2: Tory conference takes place in Manchester, with Mr Johnson giving his first keynote speech as leader on the final day. This will be a crucial waypointer on how Brexit talks are going.
October 14: Unless it has already been recalled following the court battle, Parliament is due to return with the Queen’s Speech – the day before Mr Johnson had hoped to hold a snap election.
October 17-18: A crunch EU summit in Brussels, where Mr Johnson has vowed he will try to get a Brexit deal despite Remainers ‘wrecking’ his negotiating position.
October 19: If there is no Brexit deal by this date Remainer legislation obliges the PM to beg the EU for an extension to avoid No Deal.
October 21: Decisive votes on the Queen’s Speech, which could pave the way for a confidence vote.
October 31: The current deadline for the UK to leave the EU.
November/December: An election looks inevitable, but Labour is hinting it might push the date back towards Christmas to humiliate the PM.
A summary of the judgement said: ‘The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.
‘All three first division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying parliament and that it, and what has followed from it, is unlawful.
‘The court will accordingly make an order declaring that the prime minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.’
At the hearing, Judge Lord Carloway told the court: ‘We are of the opinion that the advice given by the Government to her majesty the Queen to prorogue parliament was unlawful and that the prorogation itself was unlawful.’
The case is now set for the Supreme Court in London where it is expected to be heard alongside a similar case brought by campaigner Gina Miller.
That challenge was rejected by the High Court last week – but judges gave permission for it to be appealed to the Supreme Court.
Those who pushed the case have been quick to celebrate the outcome.
Ms Cherry, one of the Scottish MPs who brought the challenge, tweeted: ‘Huge thanks to all our supporters & our fantastic legal team who have achieved the historic ruling that #prorogation is #unlawful’
Jolyon Maugham QC, the anti-Brexit barrister who was second petitioner in the case, said the Supreme Court would hear the case next week.
He tweeted: ‘We have won. Appeal begins in the Supreme Court on Tuesday.
‘We believe that the effect of the decision is that Parliament is no longer prorogued.
‘I have never been able to contemplate the possibility that the law could be that our sovereign Parliament might be treated as an inconvenience by the Prime Minister.
‘I am pleased that Scotland’s highest court agrees. But ultimately, as has always been the case, it’s the final arbiter’s decision that matters.
Scottish judges’ ruling is new headache for Boris Johnson
Boris Johnson’s decision to prorogue Parliament for five weeks at a key pre-Brexit time for the country followed a well-trodden constitutional path.
The decision to shut down the legislature is ultimately taken by the Queen, but on the advice of the prime minister of the day and the Privy Council.
The monarch spoke with Mr Johnson by telephone before Commons Leader Jacob Rees-Mogg flew to Balmoral at the end of August to present the Government’s plan in person.
She gave the Government a short window in which to carry out the prorogation and the decision was taken to enact it on Monday, after Boris Johnson made one last (failed) attempt to convince MPs to back his plea for a general election in October.
The pageantry involved led to chaotic scenes in the Commons in the early hours of Tuesday when opposition MPs tried to stop Speaker John Bercow accompanying Black Rod to the Lords, where the proclamation was read out and officially enacted.
Today’s decision in Scotland is unlikely to change anything immediately, despite calls for the doors of Parliament to be reopened today.
But the decision of the Supreme Court in London on Tuesday would carry full political and legal weight.
As the court of last resort, if it upholds the ruling that Mr Johnson’s advice to the Queen was unlawful it would effectively declare the shutdown null and void and MPs would be, creating a huge headache for the Government.
The Speaker’s office today suggested a decision on when to reopen the doors of the Commons would be for the Government, but that is likely to infuriate opposition MPs.
It would also be likely to lead to serious consternation at Buckingham Palace at the Queen being pulled into the heart of a political crisis.
‘We will convene again in the Supreme Court next week.’
Sir Keir said: ‘I welcome the Court’s judgement. 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 judgement and decide what happens next.’
He added: ‘The Prime Minister was not telling the truth about why he was doing it. The idea of shutting down Parliament offended everyone across the country, and then they felt they were not being told the truth.’
But Brexiteers voiced fury at the ruling.
Tory former MP Stewart Jackson said: ‘The reputation of Parliament is as low as it can get now.
‘The Scottish Court decision merely reinforces the narrative that the Establishment couldn’t care less about the voters and will do all it can to overturn the democratic will of the people. Carry on. Tick tock.’
The ruling is a fresh headache for Mr Johnson as he scrambles to find a way through the Brexit crisis.
There are growing signs he is ready to compromise on his Brexit demands after he admitted he faces a revolt from hardline Tory Eurosceptics.
The Prime Minister told Remainer rebels he is expecting ‘spears in my back’ from so-called ‘Spartans’ in his own party.
The remarks emerged amid claims Mr Johnson is softening his call for the Irish border backstop to be completely scrapped.
Instead aides are believed to be examining proposals for arrangements that would apply only to Northern Ireland, rather than aligning the whole UK with EU market rules.
That could raise tensions with the DUP, which has insisted it will not accept anything that risks splitting the union.
Mr Johnson previously stated that he was seeking a ‘backstop-ectomy’, to remove the controversial provision from the Withdrawal Agreement altogether.
However, the premier’s options are looking increasingly limited, after Parliament passed a law effectively banning No Deal at the end of October, and refused his call to trigger an early general election.
Shadow Brexit secretary Sir Keir Starmer (pictured at the TUC conference in Brighton today) demanded Parliament be recalled ‘immediately’
Who are the Scottish judges who just ruled suspending Parliament was unlawful?
Three judges in Scotland’s highest civil court have ruled that the PM’s decision to prorogue Parliament was unlawful.
The three judges are:
Lord Carloway
The Lord President of the Court of Session and Lord Justice General, he is the head of the Scottish judiciary.
The 65-year-old became the most senior judge north of the border in 2015.
He studied law at the University of Edinburgh and he became a QC in 1990.
He led a major review of Scotland’s justice system after a UK Supreme Court judgement stopped police questioning suspects who had not been offered a lawyer.
The so-called Carloway Review called for criminal law to be ‘re-cast’ for modern day Scotland.
He is married, has two sons and reportedly plays bass guitar in a band called The Reclaimers.
Lord Brodie
He is a Senator of the College of Justice – the name given to the judges who sit in the Court of Session and the High Court of Justiciary – a role he has held since 2002.
The 60-year-old also studied law at Edinburgh University before attending the University of Virginia in the US.
He became a QC in 1987. He is married and has two sons and a daughter.
He is reportedly a keen fencer.
Lord Drummond Young
Also a Senator of the College of Justice, a role he took in 2001, the 69-year-old used to be the chairman of the Scottish Law Commission.
He studied law at Cambridge University and then at Harvard University in the US before becoming a QC in 1988.
He is married and has one daughter.
He is reportedly a member of The Speculative Society in Edinburgh which is dedicated to public speaking.
The summary judgement issued by the Edinburgh court
The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.
A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union(Brexit).
A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October. The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.
The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.
The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.
All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.
The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.
Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.
Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action. The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.
The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.
The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.
