Sitting in the Outer House, Lord Doherty held the issue of whether the prime minister had acted ultra vires was a matter for politicians not the courts. The government intends to prorogue Parliament at some point between 9 and 12 September until 14 October.
Lord Doherty 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 against legal standards, but only by political judgements.’
The petitioners―75 Parliamentarians headed by SNP MSP Joanna Cherry QC―will now appeal to the court’s Inner House, with a further appeal likely to go to the Supreme Court.
If so, the case could be joined to Miller’s judicial review, which was due to be heard by the Lord Chief Justice, Lord Burnett on Thursday.
David Greene, senior partner at Edwin Coe, who is acting for Miller, said on Tuesday that ‘the issues are of supreme constitutional importance’, and his clients ‘believe that their entitlement as MPs to take a full part in that debate and decision is being unlawfully curtailed’.
Lawyers for the government were likely to argue that Miller’s case would subvert the will of the people.
During the Outer House hearing, counsel for the petitioners, Aidan O’Neill QC read from a handwritten note from the prime minister describing the September session of Parliament as a ‘rigmarole’ to show the public MPs were ‘earning their crust’ and from an internal document showing plans were being made for prorogation at a time the government was telling the court the matter was academic and hypothetical.
O'Neill stated the Court of Session is not a Royal Court as in England but one created by an Act of Parliament, and that the Scottish tradition of a narrower limit on prerogative powers should be preferred. He said prerogative power cannot be used to reduce or remove the rights of individuals.
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