Government ‘abusively seeking to entrench its power by suspending Parliament’
A judge will make a decision on Friday morning on a legal bid to stop Boris Johnson proroguing Parliament.
A lawyer has urged a court to step in and stop the suspension of Parliament, arguing it would prevent an “abusive” and “unconstitutional” use of government powers.
A cross-party group of around 70 MPs and peers are backing the action at Scotland’s highest civil court after filing a petition earlier this summer aiming to stop Boris Johnson being able to prorogue Parliament.
They are now seeking an interim interdict, which would stop the Prime Minister taking the option of suspension until a final decision has been made on the case.
However, a lawyer for the UK Government called on the judge to reject the request, as the Queen has already prorogued Parliament and there is “no reason” to have an interim decision on such an important matter.
A decision is due to be announced on Friday morning.
The hearing at the Court of Session in Edinburgh on Thursday came a day after the Queen approved Mr Johnson’s request for Parliament to be suspended for five weeks from September 10.
Aidan O’Neill QC, representing the petitioners – led by SNP MP Joanna Cherry QC and Liberal Democrat leader Jo Swinson and aided by Jo Maugham of the Good Law Project – said the prorogation was “unprecedented” and and the petitioners are invoking the court’s “constitutional jurisdiction”.
He said the “Government, based on a parliamentary majority of one, is abusively seeking to entrench its power… by suspending Parliament”.
He added: “The political accountability of the Government is being eroded by proroguing Parliament. That’s their intention, that’s their aim, that is unconstitutional and this court should stop it.”
He said the Prime Minister’s claim there would be plenty of time for Parliament to debate Brexit despite prorogation is “wrong”, adding: “He knows he’s wrong and he says it anyway. One might call that a lie.”
Mr O’Neill said Mr Johnson’s letter to MPs outlining prorogation reasons has “got it wrong on the law” as it assumes the Government can allow a no-deal Brexit without the authorisation of primary legislation.
He said the reasons for prorogation “stand up to very little proper scrutiny”.
Using prorogation to cut the time to debate a no-deal Brexit by claiming to be “answerable to the people not to Parliament, that’s not a democracy as we know it. That’s mob rule”, Mr O’Neill added.
He said the suggestion prorogation is needed for the political conference season is “nonsense” and that Parliament should be asked if MPs want to attend conferences as normal or “actually want to decide on the future of this country”.
He said the Queen should be obliged to recall the prorogation order if it turned out to be based on an error of law, as she is “not above the law”, and said prorogation could be subject to review in the courts.
Roddy Dunlop QC, representing the UK Government, said Judge Lord Doherty should reject the petitioners’ requests, arguing they had no case as prorogation has already been agreed and is protected from court action.
If Parliament has a problem with this, it's for Parliament to sort it out Roddy Dunlop, QC
He said the petitioners are asking the judge to take actions which are “wholly unprecedented and go beyond any interference which the courts have ever been permitted”.
“It is this sort of approach… that would be unconstitutional,” he added.
“It is either not justiciable because it is reserved for Her Majesty and is such a matter with which the courts will not interfere or it is a matter which involves such questions of policy that the courts should not intrude because they are ill-equipped to do so.”
He said it does not become a matter for the courts either due to the length of suspension or because Mr O’Neill claims it is “borne of political motives which he seeks to impugn”.
The advice given to the Queen and the motivation behind are “plainly covered by parliamentary privilege”, he said.
“They cannot be inquired into anywhere other than Parliament. If Parliament has a problem with this, it’s for Parliament to sort it out.”
He said it is “entirely normal” for Parliament to be prorogued, and the Parliament has “never had any say” on this.
He said Mr O’Neill is “wrong” that primary legislation would be needed before a no-deal Brexit, saying “if there is no deal ratified or there is no deal at all then a simple matter of law the UK will leave”.
He claimed any case the petitioners do have is “extremely weak” and there is “no reason” not to hear the full case at the hearing originally set on September 6, instead of making an interim order.
Lord Doherty said he would make decision in the case on Friday morning.
Campaigner Gina Miller has meanwhile made an urgent application for a judicial review at the High Court in London.
Ms Miller previously won a landmark ruling that MPs would have to vote before the Government could invoke Article 50 to formally start the UK’s exit process from the EU.
A judiciary spokeswoman said on Thursday that the application was being considered.
At Belfast High Court, campaigner Raymond McCord also launched a legal bid to issue an injunction against the move by Mr Johnson.
Mr McCord, whose emergency injunction application was adjourned for 24 hours, was already pursing legal proceedings against the potential proroguing of Parliament.
Northern Ireland’s Lord Chief Justice Sir Declan Morgan, who sat for the short hearing on Thursday, agreed to give the legal parties a further day to prepare for a substantive hearing on Friday morning.