THE three Scottish judges who ruled that Boris Johnson's prorogation of Parliament was unlawful have issued their final withering judgment on the Prime Minister’s actions.
Lord Carloway, the Lord President, and Lords Brodie and Drummond Young issued a summary of their judgment on Wednesday but yesterday the full version emerged ahead of schedule – and it is sensationally critical of the Prime Minister for acting in a “clandestine” manner to secure prorogation of an “extreme nature”.
As The National reported yesterday, legal sources in Edinburgh were predicting the judges would deliver a damning verdict on Johnson, and so it proved.
Although they arrived at their “unlawful” verdict for different reasons, all three point to the fact that the prorogation is too long at five weeks and that the suspension was put in place to avoid Parliamentary scrutiny of Brexit.
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Lord Carloway stated in his written judgment: “The prorogation was sought in a clandestine manner during a period in which litigation concerning the prospect of prorogation occurring was extant.
“The decision to prorogue in the manner sought was taken against the background of the discussions in which it was being suggested that MPs, and thus Parliament, would be unable to prevent a No-Deal Brexit if time was simply allowed to elapse, without further legislation, until the exit date.
“Put shortly, prorogation was being mooted specifically as a means to stymie any further legislation regulating Brexit.”
Scotland’s most senior judge went on: “It is not unreasonable to comment that even the respondent’s legal team appear to have been kept in the dark about what was about to happen.”
The Government’s last-minute lodging of documents, including a minute of the Cabinet meeting, gave the game away, according to Lord Carloway.
He said: “At the Cabinet meeting, the tenor of the PM’s remarks, and the discussion around them, point to the various factors being used publicly to deflect from the real reason for the prorogation.
“That reason, as is reflected in the frequent references to it in the papers, centred on Brexit and not the intervention of the party conferences or the new legislative programme.”
Lord Drummond Young stated: “Prorogation is used regularly to bring sittings of Parliament to an end and begin a new session. When that occurs, however, the suspension of Parliament usually only lasts for a few days. Furthermore we were not referred to any case where prorogation was used at a time of acute political controversy in such a way that Parliamentary debate was suspended for several weeks during a critical period.
“It is obvious that the United Kingdom’s withdrawal from the European Union, and the terms on which that withdrawal is effected, if any, are a matter of immense national importance.”
He added that: “Preparations for a ‘No-Deal’ withdrawal are widely reported as involving a great deal of work by the civil service. At such a time, Parliament’s second essential constitutional function, the scrutiny of the executive, is of paramount importance.”
Lord Drummond Young’s main conclusion was this: “I am of the opinion that the decision to prorogue Parliament for five weeks out of the seven remaining before the United Kingdom is scheduled to leave the European Union leads inevitably to the conclusion that the reason for prorogation was to prevent Parliamentary scrutiny of the government. I find it impossible to see that it could serve any other rational purpose.”
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Lord Brodie stated there are “egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities”. He added: “I see this as an egregious case.”
Lord Brodie went further, saying: “When the manoeuvre is quite so blatantly designed ‘to frustrate Parliament’ at such a critical juncture in the history of the United Kingdom I consider that the court may legitimately find it to be unlawful.”
He added: “What has led me to conclude that the court is entitled to find the making of the Order unlawful is the extreme nature of the case.”
The UK Government has confirmed its appeal to the UK Supreme Court will be heard next Tuesday.
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