Judge to decide whether PM’s plan to prorogue Parliament is lawful

A judge will announce his decision on whether Boris Johnson’s planned prorogation of Parliament is lawful, following claims the PM wants to limit MPs’ scrutiny and their attempts to stop a no-deal Brexit.

Legal action aimed at preventing the UK Government suspending Parliament ahead of the Brexit deadline of October 31 is being considered at the Court of Session in Edinburgh, with Lord Doherty expected to reveal his decision on Wednesday morning.

The challenge from a cross-party group of 75 MPs and Peers argues that the Prime Minister’s decision to prorogue Westminster to reduce the time parliamentarians have to scrutinise Brexit legislation or attempt to prevent a no-deal Brexit is unlawful.

David Johnston QC, representing the Government, claimed that it was not for the courts to decide if Parliament can be suspended.

Brexit
Aidan O’Neill QC arriving at the Court of Session Court of Session in Edinburgh for the legal challenge aimed at preventing the UK Parliament being suspended (Jane Barlow/PA)

In a hearing on Tuesday, it was revealed that the Government appeared to consider suspending Parliament as early as mid-August, two weeks before publicly announcing the move and despite Mr Johnson’s spokesman claiming at the time that any suggestion of prorogation was “entirely false”.

A note dated August 15 from Nickki da Costa, a former director of legislative
affairs at Number 10 – which was seen by Mr Johnson and his adviser Dominic Cummings – asked whether an approach should be made to prorogue Parliament.

The dates suggested were between September 9 and October 14.

A note of “yes” was written on the document, the Court of Session in Edinburgh heard, although the author of the annotation was not disclosed in court.

Court will give its decision tomorrow at ten. Thanks to our wonderful legal team, @JolyonMaugham@GoodLawProject & all who donated towards our crowdfunder #Cherrycase#Prorogation#Brexit#StopTheCouphttps://t.co/TEEBQIPrNX

— Joanna Cherry QC MP (@joannaccherry) September 3, 2019

Aiden O’Neill QC, representing the cross-party parliamentarians, said: “One presumes this was a document sent in the red box to the Prime Minister to be read at his leisure.”

Mr Johnson replied the following day with a handwritten note describing the September session of Parliament as a “rigmarole” designed to show MPs were “earning their crust”.

He added it should not be “shocking” to suspend Parliament.

The Queen met the Privy Council on August 28 to approve the move – with critics such as Scottish First Minister Nicola Sturgeon branding Mr Johnson a “tin-pot dictator”.

Boris Johnson visit to Scotland
Scotland’s First Minister Nicola Sturgeon welcomes Prime Minister Boris Johnson outside Bute House in Edinburgh (Jane Barlow/PA)

Mr O’Neill described Mr Johnson as having a record that was “characterised by incontinent mendacity, an unwillingness or inability to speak the truth”.

He pointed to the documents as showing the suspension of Parliament policy was being considered much earlier than announced and argued the court had been misled, adding that the real reason to suspend Parliament was to allow a no-deal Brexit to take place by removing “proper scrutiny”.

Responding for the Government, Mr Johnston QC, added: “The proper forum for these matters to be scrutinised is the political forum.

“Those who make decisions that don’t go down well in the political forum will
be held to account there – either in Parliament or, ultimately, by the electorate.”

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