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A Scottish court declared prorogation unlawful - so what happens next?

All eyes are now on an appeal to the UK Supreme Court.

Boris Johnson's prorogation plan has been declared unlawful by a Scottish court.
Boris Johnson's prorogation plan has been declared unlawful by a Scottish court.
Image: Toby Melville/AP/Press Association Images

SCOTLAND’S HIGHEST CIVIL court has ruled that Boris Johnson’s prorogation of parliament was unlawful. 

A summary of the judgement, made this morning, said Johnson’s advice to Queen Elizabeth II that parliament be prorogued from this week until 14 October “was unlawful because it had the purpose of stymying parliament”.

It’s not immediately clear what happens next. There’s a Supreme Court date set for next week, but in the hours since questions have swirled over what the ruling means for the prorogation, parliament and even the queen. 

What did the court say?

The Edinburgh court, made up of three judges, found that the decision to suspend parliament for five weeks was unlawful. 

We only have a summary of the court’s judgement, but the ruling is still damning. One of the judges, Lord Brodie, found that: 

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 echoed this:

The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

All judges agreed that the reason for prorogation was to restrict parliament’s scrutiny, basically implying that Boris Johnson misled the queen about the reasons for proroguing parliament. 

The court stated that it would now 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”. 

Who brought the case?

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

Last week, in the Outer House of the Court of Session, a single judge ruled that prorogation was not illegal and did not breach the rule of law. 

This decision was then appealed to the Inner House, which issued today’s dramatic ruling. 

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

Appeals don’t normally move this fast through the court system, but the process has been sped up because of the urgency of the question over parliament’s suspension. 

brexit The case was brought by SNP MP Joanna Cherry. Source: Jane Barlow/PA Wire/PA Images

Why was the case taken in Scotland?

Firstly, prorogation affects Scotland the same as any other part of the UK. On Twitter today, Cherry said that the Scottish courts were chosen “because we [Cherry and some of the parliamentarians supporting the case] are Scottish & and they weren’t on holiday”. 

She added that the Court of Session is the “Supreme Court of Scotland” – making it a higher court than the court of first instance in England. 

Financial Times legal commentator David Allen Green also suggested that Scottish law would be more receptive than English law to this kind of constitutional challenge – although this isn’t an analysis shared by every legal academic

Can this decision be appealed?

It can and it will. A date has been set for next Tuesday at the UK Supreme Court. Nine judges are scheduled to sit on 17 September to hear appeals from this case. 

Does this mean parliament is going to return from prorogation?

We simply don’t know. Academics, legal experts and journalists have been arguing all day about what the judgement means. 

Scottish law is different and distinct from English law, but that doesn’t mean that a decision of the country’s highest civil court has less legal force than a decision of an English court. 

The Court of Session did not issue an order to cancel prorogation, despite ruling that it would make an order declaring that Boris Johnson’s advice to the queen was “unlawful and is thus null and of no effect”.

There are plenty of voices arguing that parliament should now sit again and some MPs have returned to sit in the House of Commons as an act of protest.

Maugham has said that the decision means that parliament should return. Scottish National Party MP Ian Blackford, in a letter to Johnson, said that it is “absolutely imperative that you now act to recall parliament”. 

As for the UK government, its position remains unchanged. The prime minister’s spokesperson maintained that proroguing was legal and that parliament “remains prorogued” regardless of the decision. 

Things are slightly complicated by the fact that the English High Court ruled last week that prorogation was not illegal

There’s also the Northern Ireland case later this week on prorogation – although the legal challenge is based on slightly different ground, namely the 1998 Northern Ireland Act and the Good Friday Agreement. 

Both of these cases will also end up in the Supreme Court on Tuesday. 

The actual mechanics of parliament returning are also somewhat confusing. As one journalist pointed out, it’s all a bit “Schrodinger’s prorogation”. 

Firstly, it’s unclear who can actually enforce the ruling of the Scottish court, especially when the government maintains it is legal and an English High Court has ruled that it was not illegal. 

As for John Bercow, who criticised this prorogation as an act of “executive fiat”, the Speaker has said that any decision to accelerate the meeting of parliament during prorogation is a matter for the government. 

His choice of word – “accelerate” – is intentional. When it comes to prorogation, the language used is “acceleration”, which basically means that the date of parliament’s next meeting can be brought forward. 

Technically, the British parliament can only be “recalled” from a temporary break in a session, such as at weekends or holidays. 

Prorogation is made by the queen, on the advice of the government. Only the queen can issue a proclamation to set a new date for parliament’s next sitting.  

For one example of the legal wrangling ongoing today, one Sky News journalist suggested that the court could make a ruling to recall the parliament, but the case is going to the Supreme Court on Tuesday, so it’s likely that all actions will be paused pending that ruling.

However, a former clerk in the House of Commons has suggested that today’s ruling means that Monday’s sitting of parliament was only suspended, a different legal status that the Speaker could unsuspend. Things might be clearer once we have the full judgement.

Can Boris Johnson ignore the decision?

In the short term, that appears to be the plan – at least ahead of a decision of the Supreme Court. 

If the Supreme Court, which also takes appeals from Northern Ireland and Scotland, found that prorogation was unlawful, we could presume that the government would be unable to ignore it and parliament could return from prorogation. 

More worryingly, perhaps, for Boris Johnson is the ruling of the Scottish court that Johnson used prorogation to avoid parliamentary scrutiny – basically suggesting that Johnson misled the queen. 

If the Supreme Court agreed with this, it would be a major embarrassment for the UK leader and would be impossible to ignore. 

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