Courts across the UK rule on prorogation

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On Wednesday, the highest court in Scotland ruled that Boris Johnson’s prorogation of Parliament was unlawful. In a judgment with massive political implications, the Court of Session found that the Prime Minister’s decision to suspend parliament ahead of the Brexit deadline on 31 October 2019 as “motivated by the improper stymying of Parliament”.

The ruling in Edinburgh followed a ruling by the High Court in London which declared the matter political and not legal, meaning it was not subject to judicial review.  The Lord Chief Justice for England and Wales, Lord Burnett of Maldon, dismissed the claims brought by Gina Miller that the Prime Minister acted unlawfully in giving advice to the Queen to prorogue parliament. It was ruled that the actions were purely political and not a matter for the courts.

A third judgment this week arrived from the Northern Irish High Court in Belfast, dismissing the claims brought by Troubles Victim campaigner Raymond McCord that a no-deal Brexit and the imposition of a hard border in Northern Ireland was unlawful and contravened the Good Friday Agreement. Lord Justice Bernard McCloskey found that the evidence involved in the case “belonged to the world of politics.”  However, he declined to make any determination on the issue of prorogation as this issue was being dealt by the English and Scottish proceedings.

All three rulings have been appealed and will be considered at a joint hearing at the UK Supreme Court in London on 17 September for a final determination, and will be attended by the maximum 9 justices.  There will be a fascinating consideration of the lawfulness of prorogation and the limits of the Crown’s prerogative powers in general, viewed through the lens of the three legal jurisdictions of the United Kingdom, namely England and Wales, Scotland and Northern Ireland, each of which have their own legal traditions and concepts.  If the decision to prorogue the UK Parliament is found to be unlawful under any of the UK’s jurisdictions, each of which have equal status, then this will mean that Parliament must be reopened.

The controversy of the UK Supreme Court’s decision next week will not just relate to the legality of prorogation.  Any factual findings of the court which suggest the Prime Minister had misled the Queen, MPs or the public his reasons for prorogation will also be politically and constitutionally explosive.  A further constitutional and political crisis will be sparked whether it would be a convention under our constitution for the Prime Minister to resign if he was found by the UK’s highest court to have misled the Queen when exercising her prerogative powers on her behalf.

We are truly in unchartered waters in which the UK constitution, the interrelation of its three jurisdictions and the Union itself are being tested to its limit.