PRIME Minister Boris Johnson’s decree that the Westminster Parliament should be suspended for five weeks at a time of unprecedented political crisis will be tested in the UK Supreme Court (UKSC) on September 17, a week after he is expected to prorogue Parliament.
The eventual involvement of the Supreme Court in the case of SNP MP Joanna Cherry QC and 75 peers and politicians became certain yesterday when the anti-Brexit campaigner Gina Miller, supported by former Tory MP John Major, lost her case against the prorogation in the High Court in London.
In an unusual move, even though it ruled that Johnson’s prorogation was lawful, the High Court recognised the merit of the Miller-Major case and allowed it to be “leapfrogged” – the term used when an action goes straight to the UKSC and misses out the Appeal Court stage.
As both sides have indicated, the case in the Court of Session, known as the Cherry Case, will end up in the UKSC no matter who wins the ongoing appeal, which had a second day of hearings in Edinburgh yesterday. Contrary to the false impression given by reports from the BBC in London, which were carried on Radio Scotland, the Cherry Case has most definitely not ended in defeat for Cherry and her colleagues.
Though the court did refuse to make any interim interdict orders to stop prorogation now – that means Johnson can go ahead and prorogue Parliament on Monday or Tuesday. Instead, the three judges of the Inner House of the Court of Session , who sat as an appeal court, have heard all the statements and evidence and have decided to give their judgement on Wednesday, by which time Johnson may have prorogued Parliament. He could wait for the UKSC’s judgement, as Governments have done in the past, but legal experts think the PM will push ahead with the suspension, the longest in 40 years.
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If the UKSC then finds against the Government, Johnson would face the humiliation of having to cancel the prorogation and recall Parliament, though as one lawyer quipped yesterday, “he could take it to the European Court of Justice”.
In the Court of Session, Lord Carloway, Lord Brodie and Lord Drummond Young were told by David Johnston QC for the UK Government that if Hilary Benn MPs’ Bill to prevent a No-Deal Brexit is passed on Monday by the House of Commons, then the Privy Council order to prorogue would no longer apply.
He added: “The Order in Council would fall.”
Johnston added that prorogation is a prerogative power: “It is not something that the courts should enter into. It is a political decision. It is simply not apt for judicial control.
“There are historical examples – in 1948, Parliament was prorogued for just one day in order to pass the 1949 Parliament Act. It is not a justiciable matter.”
Aidan O’Neill, QC for team Cherry, had earlier argued that “a decision to prorogue shuts down Parliament”, adding: “It is in those circumstances an attack on democracy.”
He continued: “It is an attack on the balance of the constitution, and therefore it is unlawful.”
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Jolyon Maugham QC, whose Good Law Project supports the Cherry Case, explained: “The Inner House of the Court of Session will give its decision on Wednesday and will not make any interim orders in the meantime. We understand that, if they find in our favour then Parliament will be, in effect, unsuspended.”
After the High Court ruled against her, Gina Miller said: “We feel it is absolutely vital that Parliament should be sitting.
“We are therefore pleased that the judges have given us permission to appeal to the Supreme Court, which we will be doing, and they feel that our case has the merit to be handed up.
“Today, we stand for everyone. We stand for the future generations and we stand for representative democracy. To give up now would be a dereliction of our responsibility. We need to protect our institutions, it is not right that they should be shut down or bullied – especially at this momentous time in our history.
“My legal team and I will not give up this fight for democracy.”
A spokesperson for the Prime Minister said: “We welcome the court’s decision and we hope that those seeking to use the judiciary to frustrate the Government take note of it and of the Court of Sessions ruling earlier this week and withdraw their cases.”
Of that there is no chance.
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