Three judges including Scotland’s most senior judge, Lord Carloway unanimously held 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’. They said it had ‘the purpose of stymying Parliament’ and that Parliamentary scrutiny was ‘a central pillar of the good governance principle enshrined in the constitution’.
The court will release its full judgment on Friday. The case was brought by 75 Parliamentarians, led by Joanna Cherry QC, represented by Jolyon Maugham QC.
Maugham said his understanding was ‘that unless the Supreme Court grants an order in the meantime, Parliament is unsuspended with immediate effect’.
A government spokesperson expressed disappointment at the decision and said it would appeal to the Supreme Court.
The Supreme Court is likely to hear the appeal on Tuesday alongside the case brought by businesswoman Gina Miller in the English courts―in which the Lord Chief Justice and two senior judges held the prorogation lawful.
Parliament was prorogued shortly before 2am on Tuesday morning amid riotous scenes in the House of Commons. Earlier, MPs had demanded the government adhere to the rule of law over legislation compelling the Prime Minister to seek a Brexit date extension, and backed a motion calling for the publication of government communications relating to prorogation and to Operation Yellowhammer plans for a no deal Brexit.
David Greene, senior partner at Edwin Coe and NLJ consultant editor, said: ‘The prorogation of Parliament may bring a little quiet in Parliament but it remains challenged in front of the courts with the leapfrog appeal of the Miller application for judicial review of the prorogation to the Supreme Court to be heard next week. The Scottish appeal court has now thrown a firework into the situation with its decision to quash the decision by the prime minister to advise the Queen to prorogue. All eyes on the Supreme Court.
‘Proceedings are also threatened from various parties over the issue of whether or not the government will comply with the obligations under the European Union (Withdrawal) Act (No 9). The government has said it will comply but the question may be nuanced as to its compliance with the letter or the spirit of the law. The green and red benches may have quietened but the judicial bench will continue to be an alternative focus in the weeks to come.’
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