Scotland’s highest has court ruled that Boris Johnson’s suspension of parliament is unlawful but said it would not order the recall of MPs ahead of a UK Supreme Court hearing next week on a similar case brought in England.
The ruling by three judges at Edinburgh’s Court of Session will be reviewed by the UK’s highest court next week along with other legal challenges to Mr Johnson’s controversial decision to prorogue parliament.
The Scottish court’s chief judge, Lord Carloway, said it would not make any “ancillary orders” before the Supreme Court hears the case, which will disappoint campaigners who had hoped for an immediate instruction that parliament should reconvene.
Shortly after the ruling, Downing Street said the government was “disappointed” by the decision and would appeal it in 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,” it said.
The Scottish ruling in a case brought by more than 70 parliamentarians said the decision to suspend parliament, which went into effect in the early hours of Tuesday, was unlawful “because it had the purpose of stymying parliament”.
In a draft ruling, the court said that the Queen’s decision to order the suspension of parliament, on advice of the prime minister, would not normally be subject to judicial review but it could still be unlawful if its purpose was to stymie scrutiny of the executive.
In the ruling, Lord Carloway said: “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, another member of the three-judge panel, said the prorogation was “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities”.
The ruling overturned a judgment by a lower court in Edinburgh last week that the suspension was a matter of “high policy and political judgment” and not something that courts could pass judgment on.
“We are calling for parliament to be recalled,” said Joanna Cherry, the SNP MP, who headed the cross-party list of parliamentarians from around the UK who brought the Scottish case.
Ms Cherry said parliamentary time was being lost and she expected a “sympathetic hearing” from House of Commons speaker John Bercow, whose concerns about the circumstances around prorogation had been “vindicated”.
Jo Maugham, a lawyer who was one of the petitioners behind the case, described the judgment as a historic triumph. “If it were to be the law that the courts now could not get involved with a decision by the prime minister, a decision that parliament doesn’t get to vote on — to suspend parliament — we would now be living in a dictatorship where the prime minister could suspend parliament for four years if he felt like it.”
News of the result broke while Keir Starmer, Labour’s Brexit spokesman, was speaking at the Trades Union Congress in Brighton and he was informed of the result after he finished speaking.
He said: “It was obvious, I think, to everybody that not only was shutting down parliament at a crucial time the absolutely wrong thing to do — we should be sitting each and every day to resolve this crisis — but that the prime minister was not telling the truth about why he was doing it.”
Sir Keir, a former lawyer and director of public prosecutions, added he was surprised the court had made the decision. “What we need to do is get back to parliament and see if we can reopen up those doors and get Boris Johnson back in parliament and hold him properly to account,” he said.