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Boost for Boris Johnson as English judges say Parliament shutdown cannot be legally challenged

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Boris Johnson received a major boost over his highly controversial decision to shut down Parliament ahead of Brexit today as senior judges said it could not be legally challenged.

After the Prime Minister’s divisive move to prorogue the Commons for five weeks, sparking Remainer uproar, was deemed illegal by judges in Scotland, the High Court in London revealed that it viewed the situation completely differently.

In giving their reasons for throwing out a case brought by Remainer businesswoman Gina Miller, justices in London said the decision which closed down parliament on Monday was ‘purely political’ and therefore ‘not a matter for the courts’.

The ruling will calm Brexiteer nerves ahead of a dramatic legal showdown at the Supreme Court on Tuesday, where the UK’s highest legal authority will have to decide which judicial decision is the right one.

Ms Miller’s claim – which was supported by former prime minister Sir John Major, shadow attorney general Baroness Chakrabarti and the Scottish and Welsh governments – was dismissed last Friday. But a bench led by Lord Chief Justice Lord Burnett delivered their ruling at a brief hearing in London on Wednesday.

In their judgment, they stated: ‘We concluded that the decision of the Prime Minister was not justiciable (capable of challenge). It is not a matter for the courts.’

They added: ‘The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political.

‘They were inherently political in nature and there are no legal standards against which to judge their legitimacy.’

Judges said the decision by Mr Johnson (pictured today taking part in a People’s PMQs on Facebook) which closed down parliament on Monday was ‘purely political’ and therefore ‘not a matter for the courts’

Boris Johnson (pictured in London yesterday) earlier suffered another setback as Scottish judges ruled his suspension of Parliament was unlawful. The case is expected to be appealed further at the Supreme Court

Boris Johnson (pictured in London yesterday) earlier suffered another setback as Scottish judges ruled his suspension of Parliament was unlawful. The case is expected to be appealed further at the Supreme Court

The Brexit war had exploded earlier today as No10 was accused of questioning the impartiality of Scottish judges who ruled Boris Johnson suspended Parliament illegally. 

An Edinburgh court decided that prorogation was unlawful because the Prime Minister’s intention had been to ‘stymy’ scrutiny of his Brexit policy – not to pave the way for a new legislative programme as he claimed.

The shock outcome sets the stage for a titanic showdown at the Supreme Court next week – with the risk that the Queen will be dragged into the constitutional crisis. 

As Westminster descended into chaos, Remainers claimed Mr Johnson had ‘deceived’ the monarch and the prorogation of Parliament for five weeks – which happened in the early hours of yesterday morning by Royal proclamation – was now null and void.

There was more fury after a No10 source reportedly swiped that the Scottish courts had been ‘chosen for a reason’, with Nicola Sturgeon slamming the jibe as ‘pitiful’ and undermining the rule of law. 

Attorney General Robert Buckland tried to calm the row by tweeting that he had ‘total confidence’ in the independence of judges, while the PM’s official spokesman repeated the message.

As MPs demanded the Houses be recalled ‘immediately’, some staged protests by tweeting selfies of themselves sitting in the Commons chamber. 

Rebel ringleader Dominic Grieve said Mr Johnson must resign if he misled the Queen about his motives, while Labour’s David Lammy accused him of ‘deceiving’ the monarch. 

Meanwhile, union baron Len McCluskey made the extraordinary suggestion that Mr Johnson should be put under ‘citizens arrest’.  

Downing Street denied that the PM had misled the Queen. Pressed repeatedly by journalists on the allegation, a spokesman said: ‘I think I am fairly clear that the reasons for prorogation have been consistent throughout.’ 

No10 sources insisted Parliament will stay prorogued until the Supreme Court rules next week, and suggested another Royal Proclamation will be needed for MPs to start sitting again before the currently slated date of October 14.  

Attorney General Robert Buckland tried to calm a row after a No10 source suggested Remainers had picked the Scottish courts because they were more likely to win

Lawyer Jo Maugham, who was involved in the Edinburgh case, said he believed Parliament was no longer prorogued. Downing Street said it did not agree

Attorney General Robert Buckland (left) tried to calm a row after a No10 source suggested Remainers had picked the Scottish courts because they were more likely to win. Lawyer Jo Maugham, who was involved in the Edinburgh case, said he believed Parliament was no longer prorogued. Downing Street said it did not agree (right)  

SNP MP Joanna Cherry, pictured centre in Edinburgh today, described the ruling as 'historic' and 'fantastic'

SNP MP Joanna Cherry, pictured centre in Edinburgh today, described the ruling as ‘historic’ and ‘fantastic’

Judge Lord Doherty dismissed a challenge against the planned prorogation at the Court of Session last Wednesday, saying it is for politicians and not the courts to decide.

But a panel of three judges in Edinburgh overturned that decision.

Three separate legal challenges to prorogation – but all will end up in the Supreme Court 

Remainers have been pushing three separate legal challenges to the PM’s move to prorogue Parliament.

They have been taking place in the UK’s three legal jurisdictions – England and Wales, Scotland and Northern Ireland.

Scottish law has been distinct from English law for centuries, and differs in a number of important respects. For example, juries in criminal trials have 15 members – and as well as ‘guilty’ and ‘not guilty’, they can find a case ‘not proven’.  

Northern Ireland law has been distinct since partition in 1921, but is more similar to that in England and Wales. 

The challenge in Scotland was rejected in the first instance last week, but today three judges ruled that the suspension of parliament was unlawful due to the PM’s ‘improper’ motivations. 

The High Court in London took a very different view last week. Releasing details of their reasoning today, judges stated that it was not the place of the court to interfere in matters of ‘high politics’.

A ruling is due in the Belfast case tomorrow.

However, all three strands are due to end up in the Supreme Court in London next week – the highest authority in UK law. 

Nine senior judges will hear the arguments over three days, before deliberating and delivering a ruling that could decide the fate of the PM, and the country.  

A summary of the judgement said: ‘The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

‘All three first division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying parliament and that it, and what has followed from it, is unlawful.

‘The court will accordingly 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.’

At the hearing, Judge Lord Carloway told the court: ‘We are of the opinion that the advice given by the Government to her majesty the Queen to prorogue parliament was unlawful and that the prorogation itself was unlawful.’ 

A UK Government spokesman said: ‘We are disappointed by today’s decision, and will appeal to the UK Supreme Court. 

‘The UK Government needs to bring forward a strong domestic legislative agenda. Proroguing Parliament is the legal and necessary way of delivering this.’  

The case is now set for the Supreme Court in London where it is expected to be heard alongside a similar case brought by campaigner Gina Miller.

That challenge was rejected by the High Court last week – but judges gave permission for it to be appealed to the Supreme Court. 

In an incendiary jibe, one No10 source told the Sun: ‘We note that last week the High Court in London did not rule that prorogation was unlawful. 

‘The legal activists choose the Scottish courts for a reason.’ 

The remark was quickly disowned by the PM’s aides, but SNP leader Nicola Sturgeon said: ‘This is pitiful, pathetic and desperate from No10.’ 

Former Justice Secretary David Gauke said: ‘It is neither responsible nor acceptable for ‘sources in No 10′ to accuse judges of political bias. Criticism of this type from within Government undermines the independence of the judiciary and, therefore, the rule of law.’ 

Could Boris Johnson be forced to recall MPs?  

Boris Johnson’s decision to prorogue Parliament for five weeks at a key pre-Brexit time for the country followed a well-trodden constitutional path.

The decision to shut down the legislature is ultimately taken by the Queen, but on the advice of the prime minister of the day and the Privy Council.

The monarch spoke with Mr Johnson by telephone before Commons Leader Jacob Rees-Mogg flew to Balmoral at the end of August to present the Government’s plan in person.

She gave the Government a short window in which to carry out the prorogation and the decision was taken to enact it on Monday, after Boris Johnson made one last (failed) attempt to convince MPs to back his plea for a general election in October.

The pageantry involved led to chaotic scenes in the Commons in the early hours of Tuesday when opposition MPs tried to stop Speaker John Bercow accompanying Black Rod to the Lords, where the proclamation was read out and officially enacted.

Today’s decision in Scotland is unlikely to change anything immediately, despite calls for the doors of Parliament to be reopened today.

But the decision of the Supreme Court in London on Tuesday would carry full political and legal weight.

As the court of last resort, if it upholds the ruling that Mr Johnson’s advice to the Queen was unlawful it would effectively declare the shutdown null and void.

It is unclear exactly what would happen next – as Parliament would resume sitting, but the Government has not tabled any business. 

But Tory MP Henry Smith told MailOnline: ‘I think the Scottish court decision is is highly political and actually very dangerous, because the courts shouldn’t be passing judgement on Parliamentary matters and certainly issues that are the subject of the PM’s prerogative.

‘The courts should be blind to party politics. The courts are not there to do the SNP’s bidding.’ 

Another senior Conservative Brexiteer told MailOnline the judgement was ‘pretty maverick’.

They said: ‘The sort of language that is being used is remarkably political. It does look political.’

Labour leader Jeremy Corbyn said: ‘It is a landmark ruling when a court, this time in Scotland, rules that it is unlawful to prorogue Parliament. The issue will now go to the Supreme Court next week.

‘We did everything we could to prevent the prorogation of Parliament. That is actually shutting down Parliament which is what the Prime Minister has done in order to prevent questioning and debate right through to the middle of October.

‘Whatever happens next week we will continue to press for Parliament to be recalled so that we can question the PM as to why he seems, still, unable to give an undertaking that he will abide by the European law that we passed last week requiring him to seek an extension if necessary to prevent a No Deal crash out from the European Union at the end of October.

‘These are interesting times when courts rule in favour of democracy against a prime minister who wants to shut down our democracy.’

Giving detailed reasons for its rejection of the Miller challenge today, the High Court said the decision to prorogue Parliament was ‘purely political’ and therefore not capable of challenge in the courts.

Ms Miller’s claim was supported by former prime minister Sir John Major, shadow attorney general Baroness Chakrabarti and the Scottish and Welsh governments.

Lord Chief Justice Lord Burnett, Master of the Rolls Sir Terence Etherton and President of the Queen’s Bench Division Dame Victoria Sharp delivered their ruling at a brief hearing in London on Wednesday.

In their judgment, they stated: ‘We concluded that the decision of the Prime Minister was not justiciable (capable of challenge). It is not a matter for the courts.’

They added: ‘The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political.

‘They were inherently political in nature and there are no legal standards against which to judge their legitimacy.’

They said it was ‘impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure’.

The court also said that legislation passed by Parliament, which requires Mr Johnson to seek an extension to the current Brexit deadline of October 31 if no deal is reached with the EU, had ‘undermined’ Ms Miller’s case.

Labour MP Ben Bradshaw said Mr Johnson 'broke the law by closing down Parliament

Labour MP Ben Bradshaw said Mr Johnson ‘broke the law by closing down Parliament

Labour MP Kevin Brennan went to the Commons chamber today to insist that it should still be sitting

Jonathan Reynolds

Labour MPs Kevin Brennan (left) and Jonathan Reynolds (right) went to the Commons chamber today to insist that it should still be sitting

The judgment stated: ‘The ability of Parliament to move with speed when it chooses to do so was illustrated with clarity and at the same time undermined the underlying premise of the cases advanced by both the claimant and the interveners, namely that the prorogation would deny Parliament the opportunity to do precisely what it has just done.’

Those who pushed the case have been quick to celebrate the outcome. 

Ms Cherry, one of the Scottish MPs who brought the challenge, tweeted: ‘Huge thanks to all our supporters & our fantastic legal team who have achieved the historic ruling that #prorogation is #unlawful’

Jolyon Maugham QC, the anti-Brexit barrister who was second petitioner in the case, said the Supreme Court would hear the case next week.

He tweeted: ‘We have won. Appeal begins in the Supreme Court on Tuesday.

‘We believe that the effect of the decision is that Parliament is no longer prorogued.

‘I have never been able to contemplate the possibility that the law could be that our sovereign Parliament might be treated as an inconvenience by the Prime Minister.

What happens next in the Brexit crisis? 

Here is how the coming weeks could pan out: 

September 14-17: Lib Dem conference takes place in Bournemouth 

September 17: Supreme Court hears case on whether prorogation of Parliament was illegal. 

September 21-25: Labour conference in Brighton 

September 29-October 2: Tory conference takes place in Manchester, with Mr Johnson giving his first keynote speech as leader on the final day. This will be a crucial waypointer on how Brexit talks are going.

October 14: Unless it has already been recalled following the court battle, Parliament is due to return with the Queen’s Speech – the day before Mr Johnson had hoped to hold a snap election.

October 17-18: A crunch EU summit in Brussels, where Mr Johnson has vowed he will try to get a Brexit deal despite Remainers ‘wrecking’ his negotiating position. 

October 19: If there is no Brexit deal by this date Remainer legislation obliges the PM to beg the EU for an extension to avoid No Deal.

October 21: Decisive votes on the Queen’s Speech, which could pave the way for a confidence vote. 

October 31: The current deadline for the UK to leave the EU. 

November/December: An election looks inevitable, but Labour is hinting it might push the date back towards Christmas to humiliate the PM. 

‘I am pleased that Scotland’s highest court agrees. But ultimately, as has always been the case, it’s the final arbiter’s decision that matters.

‘We will convene again in the Supreme Court next week.’

Sir Keir said: ‘I welcome the Court’s judgement. No one in their right mind believed Boris Johnson’s reason for shutting down Parliament. 

‘I urge the Prime Minister to immediately recall Parliament so we can debate this judgement and decide what happens next.’ 

He added: ‘The Prime Minister was not telling the truth about why he was doing it. The idea of shutting down Parliament offended everyone across the country, and then they felt they were not being told the truth.’ 

Speaking at the TUC conference in Brighton, Mr McCluskey told Sky News: ‘My advice to the prime minister is don’t go up to Scotland – you’re liable to face a citizen’s arrest.’ 

Labour MP Ben Bradshaw said Mr Johnson ‘broke the law by closing down Parliament’, and added: ‘Did he also lie to the Queen? Time for Parliament to get back to work.’  

But Brexiteers voiced fury at the ruling.

Tory former MP Stewart Jackson said: ‘The reputation of Parliament is as low as it can get now. 

‘The Scottish Court decision merely reinforces the narrative that the Establishment couldn’t care less about the voters and will do all it can to overturn the democratic will of the people. Carry on. Tick tock.’  

The ruling is a fresh headache for Mr Johnson as he scrambles to find a way through the Brexit crisis.

There are growing signs he is ready to compromise on his Brexit demands after he admitted he faces a revolt from hardline Tory Eurosceptics.

The Prime Minister told Remainer rebels he is expecting ‘spears in my back’ from so-called ‘Spartans’ in his own party.

The remarks emerged amid claims Mr Johnson is softening his call for the Irish border backstop to be completely scrapped.

Instead aides are believed to be examining proposals for arrangements that would apply only to Northern Ireland, rather than aligning the whole UK with EU market rules. 

That could raise tensions with the DUP, which has insisted it will not accept anything that risks splitting the union.

Mr Johnson previously stated that he was seeking a ‘backstop-ectomy’, to remove the controversial provision from the Withdrawal Agreement altogether.

However, the premier’s options are looking increasingly limited, after Parliament passed a law effectively banning No Deal at the end of October, and refused his call to trigger an early general election.

Labour leader Jeremy Corbyn (pictured today in Walsall) said the Scottish decision was 'a landmark ruling when a court, this time in Scotland, rules that it is unlawful to prorogue Parliament'

Labour leader Jeremy Corbyn (pictured today in Walsall) said the Scottish decision was ‘a landmark ruling when a court, this time in Scotland, rules that it is unlawful to prorogue Parliament’

Shadow Brexit secretary Sir Keir Starmer (pictured at the TUC conference in Brighton today) demanded Parliament be recalled 'immediately'

And there was more fury after a No10 source reportedly swiped that the Scottish courts had been 'chosen for a reason', with Nicola Sturgeon slamming the jibe as 'pitiful' and undermining the rule of law.

Shadow Brexit secretary Sir Keir Starmer (pictured at the TUC conference in Brighton today) demanded Parliament be recalled ‘immediately’. There was more fury after a No10 source reportedly swiped that the Scottish courts had been ‘chosen for a reason’, with Nicola Sturgeon (right) slamming the jibe as ‘pitiful’ and undermining the rule of law.

Labour's Luke Pollard said he had been sitting in the Commons chamber 'quietly and peacefully' to make a point today

Labour’s Luke Pollard said he had been sitting in the Commons chamber ‘quietly and peacefully’ to make a point today 

Who are the Scottish judges who just ruled suspending Parliament was unlawful? 

Three judges in Scotland’s highest civil court have ruled that the PM’s decision to prorogue Parliament was unlawful. 

The three judges are: 

Lord Carloway

The Lord President of the Court of Session and Lord Justice General, he is the head of the Scottish judiciary. 

The 65-year-old became the most senior judge north of the border in 2015. 

He studied law at the University of Edinburgh and he became a QC in 1990. 

He led a major review of Scotland’s justice system after a UK Supreme Court judgement stopped police questioning suspects who had not been offered a lawyer. 

The so-called Carloway Review called for criminal law to be ‘re-cast’ for modern day Scotland. 

He is married, has two sons and reportedly plays bass guitar in a band called The Reclaimers.

 

 

 

 

 

Lord Brodie

He is a Senator of the College of Justice – the name given to the judges who sit in the Court of Session and the High Court of Justiciary – a role he has held since 2002. 

The 60-year-old also studied law at Edinburgh University before attending the University of Virginia in the US. 

He became a QC in 1987. He is married and has two sons and a daughter. 

He is reportedly a keen fencer.

 

 

 

 

 

Lord Drummond Young

Also a Senator of the College of Justice, a role he took in 2001, the 69-year-old used to be the chairman of the Scottish Law Commission. 

He studied law at Cambridge University and then at Harvard University in the US before becoming a QC in 1988.

He is married and has one daughter. 

He is reportedly a member of The Speculative Society in Edinburgh which is dedicated to public speaking.

The summary judgement issued by the Edinburgh court  

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union(Brexit).

A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October. The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.

The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. 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 determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action. The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court will accordingly 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.

 

Read more at DailyMail.co.uk


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