Scots court: Proroguing Parliament was illegal

Scots court: Proroguing Parliament was illegal

Just when Boris Johnson thought he was out, an appellate court in Scotland pulls him back in. Or maybe not, since the court’s ruling that Johnson’s prorogation of Parliament was illegal did not also include an order to open it back up. For now, the panel booted this to the UK Supreme Court, but it adds another embarrassing episode for Johnson, arguably the Queen as well, and more controversy over Johnson’s strategy to cut Parliament out of the path to a no-deal Brexit:


A panel of three Scottish judges ruled Wednesday morning that Boris Johnson’s decision to suspend Parliament was illegal, delivering the British prime minister yet another setback in a month that has been full of them.

The ruling does not mean Parliament will immediately come back into session, but it does give the prime minister’s opponents hope ahead of an expected Supreme Court case next week. …

Wednesday’s ruling contradicts two earlier judgments from last week. Judges for England and Wales had previously ruled that Johnson’s move was legal. A Scottish judge, meanwhile, had decided that the courts did not have the authority to interfere in the suspension.

With Brexit in the balance, the outcome of the case could have high stakes. It may even have implications for the queen, who had agreed to prorogue — or suspend — Parliament, on the advice of the prime minister, as is customary.

One might wonder how a normal parliamentary practice can be determined to be illegal. After all, Parliament gets prorogued on a regular basis, especially for new governments bringing in a new agenda. In this particular case, however, the court ruled that Johnson’s intent and outcome in shutting down parliamentary scrutiny of the ongoing Brexit process violates the sovereignty of Parliament:

The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned an earlier ruling that the courts did not have the power to interfere in the prime minister’s political decision to prorogue parliament.

Lawyers acting for 75 opposition MPs and peers argued Johnson’s decision to suspend parliament for five weeks was illegal and in breach of the constitution, as it was designed to stifle parliamentary debate and action on Brexit.

The judges failed to issue an interdict, or injunction, ordering the UK government to reconvene parliament, prompting a row over whether the decision meant MPs could go back to the House of Commons. …

The three Scottish judges, who will issue their own reasonings in full on Friday, said the prorogation was unlawful “because it had the purpose of stymying parliament”.

Parliamentary scrutiny of the executive was “a central pillar of the good governance principle enshrined in the constitution”.

The court’s summary concluded Johnson’s prorogation request to the Queen and her decision to accept it “was unlawful and is thus null and of no effect”.


Well, maybe. The panel won’t issue an order to reopen Parliament, leaving that to the top court, which will hear the case next week. They’re facing quite the muddle, with lower court rulings that perhaps more wisely stayed out of the political muddle, and another lower court working on the same issue in Belfast. By the time this all gets wrapped up next week in London, courts in all four nations will have weighed in one way or another, although this is Johnson’s first setback.

Scots MPs are agitating to reopen the Commons in the meantime, though:

Boris Johnson’s problem in Scotland isn’t legal, it’s political. Don’t forget that the Scots were strong Remainers in 2016 and have gotten even more skeptical of Brexit since. The risk here isn’t that a Scots court will force Johnson back to Parliament; that issue has to be settled in London, and even these judges know that. The risk is that Johnson is making a bloody good case for Scots independence beyond even what the SNP can muster on its own. If the UK’s constitution can be manipulated to shut down Parliament and leave control in the hands of a British nationalist, what reason does Scotland have to stick around? A ruling from a Scottish appellate court in opposition to that lends credence to those who resent the prorogation; having that decision overruled in London — which is almost certainly what will happen next week — will make that resentment explode.


By the way, Johnson faces the same problem in Brexit-skeptical Northern Ireland too, plus the unresolved issue of the border with the Republic of Ireland. Northern Ireland also voted Remain in 2016, and it now looks like they’ll have to carry the heavy lifting for Brexit in any solution Johnson attempts. The Tories are married to the DUP, which represents a pro-Brexit minority in the six counties. The summary dissolution of Parliament, combined with the two-years-and-counting lack of an executive in the Stormont, is not making British democracy look very palatable. Self-determination and reunification are going to start looking better and better in comparison.

Anyway, all of this means one thing — next week’s bonus episode of The Parliament Show is going to be must watch. This is so much better than Downton Abbey, right?

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