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Scottish judges rule prorogation unlawful

Where are the limits of a legitimate political struggle?

Scottish appeal court judges have sensationally declared that decision to suspend parliament in the run-up to the October Brexit deadline is unlawful.

Earlier, a lower court in Scotland as well as a high court in England, ruled that the prorogation is a legitimate method of political struggle between the executive and representative branches and it is not up to the judiciary to intervene in this struggle.

However, today the Court of Session, composed of three judges and presided by Scotland's most senior judge Lord Carloway, ruled that political struggle has its limits.

The prorogation went beyond these limits because it was "motivated by the improper purpose of stymying Parliament".

Parliamentary scrutiny of the executive was “a central pillar of the good governance principle enshrined in the constitution”.

It is notable that the judges of the Scottish supreme sourt spoke out not only about the actions of the Prime Minister, but also of the Queen's - the matter that the English judges preferred to avoid.

The court’s summary concluded that Johnson’s prorogation request to the Queen as well as her decision were “unlawful and is thus null and of no effect”.

The British government will appeal against the court’s decision at the UK Supreme Court. The Supreme Court has already scheduled an emergency hearing on both the Scottish and English cases for 17 September.

Jolyon Maugham QC, whose Good Law Project funded the legal challenge, said: “Our understanding is that unless the supreme court grants an order in the meantime, parliament is unsuspended with immediate effect.

“I’m relieved that my understanding of the functioning of our democracy – that allows parliament to exercise its vital constitutional role – has been vindicated by Scotland’s highest court.

“This is an incredibly important point of principle. The prime minister mustn’t treat parliament as an inconvenience.”

Published: September 11, 2019