Boris Johnson’s decision to suspend parliament unlawful, Scotland’s highest court rules

By on

Supreme Court showdown next week

📸 Original image via Snowmanradio

Scotland’s highest court has ruled that Boris Johnson’s decision to suspend parliament in the run-up to the Brexit deadline on 31 October is unlawful.

The ruling sees a trio of top Scottish judges, chaired by Lord Carloway, Lord President of Edinburgh’s Court of Session, overturn an earlier decision by the Court’s lower outer house which stated the matter was one for voters and politicians, and not the courts.

A summary of the latest ruling handed down today said: “This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”

The summary (embedded in full below) further highlighted two main reasons for Johnson’s suspension of parliament. Firstly, to “prevent or impede parliament holding the executive to account and legislating with regard to Brexit”, and secondly, to “allow the executive to pursue a policy of a no-deal Brexit without further parliamentary interference”.

The UK government said it will appeal the latest ruling at the Supreme Court. What remains unclear, however, is what impact (if any) today’s ruling will have on the current suspension of parliament.

The legal action, brought by a cross-party group of more than 70 MPs and peers, is financially supported by the Good Law Project, a not for profit organisation run by Jolyon Maugham QC.

The latest comments from across Legal Cheek

In a statement Maugham said:

“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. 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.”

In separate proceedings brought by prominent pro-Remainer Gina Miller, the High Court ruled last week that the PM had not acted unlawfully. It did, however, grant permission for the case to go the Supreme Court for an appeal. This is due to be heard on 17 September.

The summary of today’s ruling

Sign up to the Legal Cheek Newsletter



These Scots need to keep their noses out of what is English business.



*UK business (therefore including Scotland)



Precisely so. The sort of comment made by ‘Leave Now’ is what drives my fellow Scots into the arms of the extremely unpleasant totalitarian SNP.



Trust me, that’s exactly what we want! Support Scottish independence and we will gladly be out of your business.


Abe Lincoln

This is an unacceptable decision by the Scottish court. I think two points should be made about this. Firstly, prerogative power to prorogue is non-justiciable due to its political nature. This means that the court should keeps its nose out of parliamentary affairs. Secondly, and as implicitly noted in this decision, power to prorogue carries with it the inherent risk of misuse for political gains. Even on this point, the court should have used this case to give a warning to politicians that, unless legislation is enacted to curb proroguing powers, a rogue politician can come to office and abuse this power. This would have brought proroguing powers within the jurisdiction of the court. This is a sensitive matter where legislation is preferred over judge-made laws.



Nice bit of legal chauvinism from someone who has never studied Scots law.



Scots law might as be made up.


Brexit now

“This is your decision. The Government will implement what you decide.”



Which was a silly promise to make without demanding from those on the Leave side some kind of road map for Brexit before the referendum was legislated for.

What made the referendum in 2016 such a daft exercise is the vagueness of one of the options. It would be akin to the 2012 referendum being run with a question like ‘Are you for FPTP or against it?’

And if against FPTP won, David Cameron going away to enact the ‘will of the people’ by replacing FPTP with Emporers for Life.



Hardly surprising. British politics is plagued by a snobby and detached elite that show complete disregard for anyone outside of the Westminster bubble.

I have my doubts over whether we will leave this year. But on a more positive note, at least that who campaigned to vote leave (and continue to do so) will be on the right side of history.






The problem with Brexit is that it needlessly impinges on the freedoms of millions of British citizens for no tangible gains for its adherents (except maybe a handful of Law students who hate studying EU Law). The democratic argument on its own does not suffice anymore than it was sufficient justification for Mugabe’s land grabs in Zimbabwe, Chavez declaring economic war in Venezuela or Jim Crow Laws in the American South.

As a result of Brexit, a minority of British citizens will lose the right to free movement within the Eurozone. A minority will lose the right to study elsewhere in Europe under the ERASMUS scheme. Thousands of businesses will have to adapt to a new mountain of customs paperwork whilst others will become unprofitable altogether.

My argument has always been that it does not matter how many people support Brexit. No majority has a right to curtail the freedom of their fellow citizens unless they can justify it through some other tangible benefit in the national interest. Beyond idle speculation about new trade deals (e.g. the one with the US that both Democrat and Republican congressman have already said they will block unless the Northern Irish backstop is respected), there have been none forthcoming and therefore Brexit is an illegitimate project that will curtail the rights of British citizens for absolutely no good reason whatsoever.

Given that, on top of that, some 75% of people under 30 are opposed to Brexit, I have my doubts that anyone will see Brexiters in a positive light when the history books are written. At best they might be comparable to Luddites for whom some sympathy is given.



So the conclusion of your argument is that young people know better?

Yes, some hipster dweeb from Dalston who has never worked a proper job in his life has a better understanding of the world than a middle aged chap who has worked an honest living and paid tens of thousands in taxes.

The arrogance of millennials is astounding and never ceases to amaze me. I’m sorry that the future restriction of movement may handicap your next backpacking trip around Europe…that of course your parents will probably be funding.




Still I’d rather listen to living young people that close to 1.5m dead leaving voters, most of who were probably racists.



You evidently read the Guardian far too much! Pleb.

The charmer

….’most of whom were probably racists.”

You mean the generation who fought the Nazis in the Second World War at enormous cost to themselves. Those racists you mean?

The people who have been paying taxes for years to (probably) pay for your education and the education of our diverse population. Those racists you mean??

The people who actually could be bothered to turn out to vote, many of whom will have voted for an Asian mayor of London. Those racists you mean???

Go and hang you head in shame and think upon your own prejudices.


Straight to the Nazis. Godwin would be proud.

You idiot

@TheCharmer: piss off with the myth that pensioners have freed us from nazis. Considering the average life expectancy, these boomers likely did not live through the war and those who did are very unlikely to have fought in it.

Instead, they lived through the comfort of a post-war world where they had high wages, access to property, cheap education and many other advantages that Millenials could not even dream of. And now, these racist cunts insist that the younger generations with far more barriers who are paying for their retirement are wrong and they have decided they would fuck things up for everyone as they wouldn’t have to see it.

I really can’t wait for the next heatwave to get us rid of the racist Daily Mail reading pensioners.


That wasn’t the crux of my argument as I suspect – with your strawman making – you well know. My argument is that if a majority plans to curtail the freedom of a minority, it needs more than empty, sentimental reasons to do so.

What I find sad is the reveling I see amongst Brexiters who will curtail the freedoms and interests of fellow citizens for absolutely no tangible benefit of their own. It is the politics of envy at its worst.



@the charmer.

No. Not that generation. That generation knew only too well the dangers of a divided Europe and an insular world. They fought bravely and died for a better world. Sadly their gammon, Daily Heil- reading, selfish self-absorbed racist children who have enjoyed all the benefits and freedoms their parents’ generation fought to protect have, at the last, pulled up the drawbridge in their grandchildren to prevent them working, living and loving freely in Europe.

My 2 boys (aged 4 and 2) will grow up and learn to hate the racist, stupid act their Grandparents spitefully and selfishly inflicted on them. It has NOTHING to do with their great grandparents, who’d be appalled.


Law student trucker

I’m an HGV driver driver that’s just studied for past 6 years and will shortly be seeking a pupillage. Left school at 15 and grew up completely skint in a terrible part of East London.

Guess what? I still think Brexit is a load of shit. I’ve spent the past 5 years living and working in the North-East and the people I spoke to that voted for Brexit are (a) thick as pigshit, and (b) exclusively obsessed by their own personal plight. Once had another driver say he voted leave because he’s sick of the Muslims.

Not everybody that voted Brexit is a racist, selfish, moron but… you know the rest.


Bish bash bosh

AW1983 writes: “The democratic argument on its own does not suffice anymore than it was sufficient justification for Mugabe’s land grabs in Zimbabwe, Chavez declaring economic war in Venezuela or Jim Crow Laws in the American South.”

Fine, so we know were you stand. You believe that rights should be protected under any workable constitution against encroachment by an evil majority.

Please tell me where in the European Convention on Human Rights, or, indeed, in the International Convention on Human Rights, you have a ‘right’ to documentation-free travel in a foreign country? I have not found this ‘right’ yet. Indeed, I don’t recall anybody going to the barricades before 1st January 1973 in this country on the basis that their student Eurotravel was going to be a bit more complicated. Or that they needed a few more forms in order to cross a border or get a job in a strange land.

Perhaps, one wonders, is there is a special new ‘Snowflake’ edition of the ECHR that I have overlooked?


Anony-fuck this comment box.

We are more global 1973. Cross-border employment is a big thing. One would hardly be close to enabling the kind frictionless movement we have now. You are a moron, my good main.



Anyone who uses the expression “snowflake” in an argument on Brexit is, prima facie, a middle aged racist gammon man, bitter they didn’t succeed more in life, wanting to make like more difficult for their non-Daily Mail reading descendants.



P.S. Bish Bash Bosh: just so you know, the ECHR and the ICHR has *NOTHING* to do with this. Since you ask though, the Treaty of Rome (as amended) DOES enshrine the right to both.



Your theory is that freedom is confined to the ECHR. That’s your view, which I don’t share.


Susie Sue

There are some decision that courts make for the sake of appearance. I suspect this one of those. What is most astonishing about it is that it is one that is made in total absence of direct or even semi-direct precedent. It is an example, if anything, of extrapolating from principle rather than interpolating from ratio. In this respect one is reminded of Shaw v. DPP with regard to the use of judicial creativity.

Two excuses might apply here: Firstly, the civil law underpinning of Scots Law might have tempted the Inner House to play a little fast-and-lose with the common law. Secondly, the Scots courts have long taken a different (or slightly different) view to the exercise of the Royal Prerogative than the English and Welsh courts. This can be noted in Lord Reid’s speech in Nissan v. Attorney-General.

Unless the judges of the UK Supreme Court want to make all powers exercisable under the prerogative reviewable (which would be coup in itself in terms of the separation of powers), I have little doubt that they will reverse the decision of the Inner House of the Court of Session.



I’m no expert but isn’t the UKSC really “Scotland’s highest court”?


Il Capitano Ovvio LLB

No – the UK SC is the *UK*’s highest court. The clue is in the name.



To be accurate Anon, the United Kingdom Supreme Court is Scotland’s highest court on in civil law matters only (and not Criminal). Criminal stays in Scotland.



I think we can assume the query related to civil matters, but yes – welcome clarification



Unless the criminal matter raises a devolution issue, in which case it goes to the Privy Council.



Oh just imagine the autistic screeching when the Supreme Court upholds the High Court and reverses the Court of Session.

It will be glorious!



It will yet again undermine the Union as Brexit so often does. Even if the Scottish people were wildly enthusiastic about Brexit, it will kill the Union in the end because whereas for the past 22 years the EU has maintained common standards across England and Scotland on matters such as agriculture, after Brexit the Scottish and the UK Parliaments are likely to diverge on devolved matters, eventually to breaking point.


Kit Evans

It will indeed be satisfying. The Scottish judges, being a not-very-clever bunch, will be put in place by their intellectual superiors in London.



The arrogance of Gen X and baby boomers is astounding. We already have the best trade deals agreed, we get free movement (the poster is referring to working, not backpacking), we’ve benefited from human rights laws and environmental policies, a stronger military alliance, better food standards (I don’t want any US chlorinated chicken, thank you, have you SEEN the general population of Americans?), and so on.

You should care what millennials think – we’re the ones who will face the impact.

You’ve benefited from being in the EU your whole life and for some reason want to give more power to the UK government who has ruined the economy and caused a housing crisis. You’re looking to return a world that doesn’t exist anymore – Brexit isn’t the answer.




Although more older people wanted Brexit than young, I don’t think we can frame the debate by age. I made an age related comment above but only insofar as that it is a practical reality that millennials are likely to outlive baby boomers and will more likely write the ‘long hindsight’ view of the history of Brexit.

If we look at the numbers, Brexit is wildly unpopular amongst the young but it doesn’t enjoy overwhelming support amongst older people either. Certainly support for Brexit is strong in the over 65s, but over a third of them still oppose it. Go below 65 and that support rapidly shrinks down to about 50/50 support for Brexit and Remain.

A more realistic picture of Brexit is that if you are young, the chances are good that you don’t know many people in your peer group who disagrees with you. In fact, the class and geographical divisions might mean you know no one your age who disagrees with you. I know of just one fellow alumnus who supported Brexit, who lives in one of the most Brexit supporting areas south of Birmingham. More likely, the people you know who are pro-Brexit are older relatives.

On the other hand, if you’re over 50, the chances are you’ve had a falling out with several friends within your peer group. Age stops being a very useful measure of support for Brexit over 50.

Which begs the question why if Remain enjoys dominant support in some age groups and Brexit does not, why did it win? Well, that of course comes down to turnout and I think a lot of young people learned a very important lesson on 24 June.


Armchair wrestler

23rd of June.
Maybe that was the problem.
Got out of bed a day late.



I don’t think you’ve thought this one through have you? Unless you’re insisting young people have psychic powers, I think you will find that no one knew the result until 24 June!



Quick question. If the decision is upheld, who will prescribe how long Parliament can be reasonably closed down for as per the norm after a long parliamentary session and in advance of a New Queen’s Speech? Isn’t this question problematic?



Yes, you are entirely correct. And the constitution will be much the worse for it, just has it has been debased been ridiculously stupid Fixed Terms Parliaments Act 2011. Cameron should have abolished it at the first opportunity in 2015.

Yet to answer you question, what would inevitably have to happen is either:

(1). A strict and firm timetabling of Parliament (do put it in your diaries!). OR

(2). You allow the decision to be decided by a motion of the House (and can you imagine how complicated that would be!).

Both (1) and (2) are achievable (after all, other constitutions manage perfectly well), but what you lose in the process is the very flexibility that has made our own constitution (one of the oldest surviving in the world) last so long.


Greg hatch

Quite, but what do you expect? Scottish lawyers and judges are by definition second rate. If they were any good, they’d be practising South of the border. The clever judges in the Supreme Court will sort this out.



With the greatest respect, I hardly think that would be the case. Indeed on recent matters Scots Law shows up its English counterpart to be rather backward in comparison.



Agreed. The Scottish judiciary are inferior intellectually to their English counterparts. That’s why it is so galling that the Supreme Court has to be burdened with at least two Scottish judges who are only there on an ex officio basis; they would never be there on merit, if they had to compete for appointment with members of the senior English judiciary.



Sumption weighed in on the matter on Channel 4 last night – he believes the government’s move was unlawful.



I thought Sumption’s opinion was that prorogation was legal, but that ignoring Parliament on the requirement to request an extension on 19 October would be unlawful?



Just read his World at One interview, in which he quite conclusively stated the move was lawful. However, as I understood his short interview on Channel 4 last night, he appeared to be arguing that in exercising the royal prerogative in proroguing Parliament without a working majority, the power was used unlawfully.



*exercising the prerogative to prorogue, but without a majority.


Yawn Yawn

* Yawn* Sumption is yesterday’s news. Given his judgments are renowned in some fields as being questionable at best, his judgement on this is equally wrong. E.g. what has a working majority got to do with proroguing? What legal authority is there for that? Oh, there is none, it’s just Sumption doing what he does best, plucking out new and random rules from thin air. All I can say is good job he’s no longer sitting in the SC, especially on something as important as this!


Comments are closed.

Related Stories