Prime Minister’s plan to prorogue Parliament lawful, judge rules

A judge at the highest civil court in Scotland has found Boris Johnson's planned prorogation of Parliament is lawful.

Legal action aimed at preventing the UK Government suspending Parliament ahead of the Brexit deadline of October 31 was considered at the Court of Session in Edinburgh on Tuesday.

It followed claims the Prime Minister wants to limit MPs' scrutiny and their attempts to stop a no-deal Brexit.

Announcing his decision on Wednesday, Lord Doherty said choosing when to prorogue Parliament was for politicians and not the courts – but this will now be appealed against.

He said: "In my view the advice given in relation to the prorogation decision is a matter involving high policy and political judgement.

"This is political territory and decision-making, which cannot be measured by legal standards but only by political judgments.

"Accountability for the advice is to Parliament and ultimately the electorate and not to the courts."

Lord Doherty added: "I do not accept the submission that the prorogation contravenes the rule of law and the claim is justiciable because of that.

"In my opinion there has been no contravention of the rule of law.

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Leader of the House of Commons Jacob Rees-Mogg reclining on his seat in the House of Commons London.
Leader of the House of Commons Jacob Rees-Mogg reclining on his seat in the House of Commons London.
Prime Minister Boris Johnson leaves the House of Commons, London after MPs voted in favour of allowing a cross-party alliance to take control of the Commons agenda on Wednesday in a bid to block a no-deal Brexit on October 31.
LONDON, ENGLAND - SEPTEMBER 03: Secretary of State for Work and Pensions Amber Rudd leaves the Houses of Parliament on September 3, 2019 in London, England. The Rebel Alliance, including a number of Conservative MPs, have won a vote 328 to 301 for a motion that allows them to take charge of the Parliament order paper tomorrow allowing them to debate on a bill to block a no deal Brexit. (Photo by Peter Summers/Getty Images)
An anti-Brexit protester shouts slogans while demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
Kenneth Clarke and former prime minister Theresa May look on as Prime Minister Boris Johnson makes a statement to MPs in the House of Commons, London, on the G7 Summit in Biarritz.
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Anti-Brexit protesters with placards and flags demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
Anti-Brexit protesters with flags playing music while demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
A piece of satirical artwork by Artist Kaya Mar showing the Queen, Speaker John Bercow and Prime Minister Boris Johnson outside Parliament. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
A Pro-Brexit protester with a placard demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
A Pro-Brexit protester with a placard demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
Pro-Brexit protesters with placards and banners, demonstrating in central London on the day MPs return back to Parliament after the summer recess. On Monday 2 Sept 2019 British Prime Minister Boris Johnson warned Conservative MPs not to vote against the government in the next night's Bill that would block a no deal Brexit. Several MPs vowed to vote with the opposition regardless of the personal consequences. (Photo by Steve Taylor / SOPA Images/Sipa USA)
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LONDON, UNITED KINGDOM - SEPTEMBER 03 : A female anti-Brexit protester climbs the statue of Sir Winston Churchill during a protest against British prime minister Boris Johnson's policies on Brexit and the prorogation of parliament at Parliament Square in London, United Kingdom on September 03, 2019. British prime minister Boris Johnson on Monday has warned rebel Tory MPs from voting in favour of legislation that would prevent a no-deal Brexit and request an extension from the EU as tensions rise between parliament and the government. (Photo by Ray Tang/Anadolu Agency via Getty Images)
Brexit protesters in Westminster, London, as MPs are taking part in an emergency debate over a new law to block a no-deal Brexit.. (Photo by Victoria Jones/PA Images via Getty Images)
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"The power to prorogue is a prerogative power and the Prime Minister had the vires (powers) to advise the sovereign as to its exercise."

The challenge from a cross-party group of 75 MPs and peers – led by SNP MP Joanna Cherry QC – argued the decision to prorogue Westminster to reduce time parliamentarians have to scrutinise legislation or attempt to prevent a no-deal Brexit is unlawful.

Jo Maugham QC was also among those supporting the case.

Speaking after the decision, he said: "The idea that if the Prime Minister suspends Parliament the courts can't get involved loses some ugly demons.

"If he can do that for 34 days, why not 34 weeks or 34 months? Where does this political power end? It's not the law as I understand it.

"Yesterday's hearing was always going to be a bit of a pre-season friendly.

"We're now focused on the Inner House, hopefully later this week, and then the Supreme Court on September 17."

The appeal will be heard at the Inner House, which is the supreme civil court in Scotland.

In a hearing on Tuesday, it was revealed the Government appeared to consider suspending Parliament as early as mid-August.

This was two weeks before publicly announcing the move and despite Mr Johnson's spokesman then claiming 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, between September 9 and October 14.

A note of "yes" was written on the document, the Court of Session in Edinburgh heard.

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."

The Queen met the Privy Council on August 28 to approve the move.

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

Responding for the Government, David Johnston QC, said: "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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