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Scottish judge rejects legal bid to oppose prorogation - but an appeal will be heard tomorrow

An appeal will take place tomorrow.

Pro-EU demonstrators outside the Court of Session in Edinburgh ysesterday.
Pro-EU demonstrators outside the Court of Session in Edinburgh ysesterday.
Image: Andrew Milligan/PA Wire/PA Images

Updated Sep 4th 2019, 2:33 PM

A SCOTTISH COURT will hear an appeal from British parliamentarians tomorrow, after a judge in Edinburgh today ruled that Boris Johnson’s decision to prorogue the UK parliament was not illegal and did not breach the rule of law. 

Lord Raymond Doherty ruled this morning that the issue of prorogation is not a matter for the courts and is one of “high policy and political judgement”. 

An appeal had been expected quickly and this afternoon a judge decided that an appeal could take place tomorrow in front of three judges. 

Whatever happens tomorrow will likely be appealed to the UK Supreme Court. 

The case is one of three taken against the UK government after it announced it would be proroguing parliament in the run up to 31 October – the date on which the UK is scheduled to leave the EU. 

Tomorrow’s case comes as parliament last night succeeded in a dramatic bid to secure parliamentary time today to try to pass legislation to frustrate Johnson’s Brexit plans, defeating the prime minister in his very first House of Commons vote. 

A group of cross-party parliamentarians submitted the petition asking the Court of Session – Scotland’s highest civil court – to rule that Boris Johnson is acting illegally in attempting to prorogue parliament for five weeks ahead of the UK’s exit from the EU. 

The case was brought by SNP MP Joanna Cherry and is backed by 75 parliamentarians, as well as campaigner Jolyon Maugham of the Good Law Project. 

Decisions of the Outer House of the Court of Session, where the case was heard today, can be appealed to the Inner House, which typically sits with three judges. 

On Twitter earlier today, Cherry wrote that an appeal is being sought “immediately”

In a statement published after the judgement, Maugham said: “Yesterday’s hearing was always going to be a bit of a pre-season friendly. We’re focused on the Inner House, hopefully later this week, and then the Supreme Court on 17 September.”

The decision to prorogue parliament has been widely opposed by opposition MPs, joined by some Conservatives, and triggered protests on the streets of UK cities over the weekend.

In court yesterday, Lord Doherty heard that one of the documents produced as evidence in the case showed that as early as 15 August. Johnson was strongly considering proroguing parliament. 

Johnson only announced his intention to prorogue parliament on 28 August. 

The barrister representing the parliamentarians, lawyer Aidan O’Neill QC, told the court that Johnson and special advisor Dominic Cummings were briefed on a plan to prorogue parliament in mid-August. 

brexit The Scottish National Party's Joanna Cherry brought the case to the Edinburgh court. Source: Jane Barlow/PA Wire/PA Images

Last week, Doherty dismissed a request for an interim injunction ahead of today’s hearing. 

“I’m not satisfied that there’s a need for an interim suspension or an interim interdict to be granted at this stage,” he said. 

Instead, actual detailed legal arguments were pushed back until yesterday. 


O’Neill spent the morning berating Johnson and the government’s decision to suspend parliament, accusing the prime minister of undermining MPs and disrespecting the UK constitution. 

“This case is about accountability – accountability of executive to parliament and executive to the courts,” O’Neill told the court. 

Citing the rule of law, the Glorious Revolution of 1688 and the UK’s tradition of parliamentary sovereignty, O’Neill accused Johnson of effectively misusing government power. 

In the days since Johnson’s announced his intention to prorogue parliament, opposition MPs have made similar charges against the prime minister, who since taking office has committed the government to a tougher stance on Brexit. 

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The UK government, both publicly and in court yesterday, has rejected the idea that prorogation undermined parliamentary sovereignty, while also claiming that the judiciary should not be able to make a decision on the case. 

The government’s lawyer, David Johnston, claimed that prorogation was “political” – a matter for the government, not the courts. 

Johnson was not in court yesterday to give any sworn statements – a decision criticised by O’Neill in court. 

The decision is the latest twist in Brexit, after Johnson last night told MPs that he would be tabling plans for a general election after a motion passed in the House of Commons offering politicians the chance today to debate a bill to avoid a no-deal Brexit. 

“I don’t want an election. The public don’t want an election. But if the House votes for this bill tomorrow, the public will have to choose who goes to Brussels on October 17 to sort this out and take this country forward,” said Johnson after the result was announced. 

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