Cross-party group has already signalled intention to appeal
A crowdfunded legal challenge aimed at blocking Boris Johnson’s plan to suspend parliament has been dismissed by a Scottish court.
The legal petition, backed by more than 70 MPs and peers, was seeking to get the Court of Session in Edinburgh to rule that suspending parliament so that the UK leaves the EU without a deal was “unlawful and unconstitutional”.
The case, financially supported by the Good Law Project, a not for profit organisation launched by Devereux Chambers‘ Jolyon Maugham QC, came after the PM announced his intention to shut down parliament, a process known as proroguing, for longer than expected in the run-up to Brexit.
However, Lord Doherty today ruled that the matter was one for voters and politicians, and not the courts. The suspension, the judge said, did not render the parliamentary process “futile” or infringe on the right of individuals under EU law.
Joanna Cherry MP QC, who is heading up the legal action, has already indicated they will appeal against the court’s ruling.
Seems we have lost #Cherrycase to stop #prorogation at 1st instance. Judge rules court can’t review exercise of prerogative power to #prorogue. We thinks he’s erred in law on this point & others & will seek to appeal immediately #Brexit #StopTheCoup
— Joanna Cherry QC MP (@joannaccherry) September 4, 2019
In a statement this morning, Maugham said:
“The idea that if the PM suspends parliament the court can’t get involved looses some ugly demons. If he can do it for 34 days, why not 34 weeks, or 34 months? Where does this political power end? It’s not the law, as I understand it.”
He continued: “Yesterday’s hearing was going to be a bit of a pre season friendly. We’re now focused on the Inner House, hopefully later this week, and then the Supreme Court on 17 September.”
Meanwhile, south of the border, businesswoman turned activist Gina Miller has drafted in lawyers from Mishcon de Reya and Blackstone Chambers to help challenge Johnson’s plan in the English courts. Commenting on her decision to take legal action, Miller said:
“Whilst prorogation is an acceptable UK constitutional practice, no Prime Minister in modern history has attempted to use it in such a brazen manner. The effect of which will be to curtail or deny parliament its constitutional right to scrutinise or pass legislation to limit the damage of a no deal Brexit.”
Others granted permission to join the proceedings include former Prime Minister Sir John Major, represented by City outfit Herbert Smith Freehills (HSF), and Jess Phillips MP and Alex Sobel MP, represented by London law firm Edwin Coe. The matter will be heard in the High Court tomorrow (Thursday 5 September).
UPDATE: 11:58pm
The Scottish Council of Law Reporting has now published Doherty’s reasons for refusing the prorogation challenge.
Here is a note of Lord Doherty's reasons given for refusing the prorogation challenge in Cherry v Advocate General for Scotland. pic.twitter.com/Fk6s5wQ1v2
— Scottish Council of Law Reporting (@SessionCases) September 4, 2019
