The group of MPs and peers - led by Joanna Cherry of the SNP - had wanted Scotland’s highest civil court to rule that the Prime Minister had acted illegally and unconstitutionally by proroguing the UK Parliament ahead of the UK leaving the EU.
In a ruling issued this morning, Lord Doherty rejected the petition. “It is not for the courts to decide further restraints on prorogation which go beyond those which parliament provides,” he said.
Lawyers for 78 parliamentarians who claim that Boris Johnson’s plan to suspend parliament for five weeks in the run-up to his Brexit deadline was unlawful today said the court fight would continue.
Elaine Motion, executive chairman of legal firm Balfour+Manson, which represents the petitioners, said the issue was far from over.
“We have marked an appeal to today’s ruling and we hope that will be heard in the Inner House of the Court of Session as soon as possible,” she said.
“We always knew this would be the first step in a long, complex journey and we are pleased to have had the opportunity to make our arguments. We are ready to move forward to the next stage in the process.”
Edinburgh South MP Ian Murray, one of the petitioners, said: “The fight against Boris Johnson’s assault on democracy and his plan to crash the UK out of the EU goes on.
“There will be an appeal on this ruling, and there is another court case taking place in England.
“But the main battle is currently in Parliament, where the Prime Minister has lost his majority and does not have the support of the House for his dangerous plan to impose a no-deal Brexit on the country.”
Jolyon Maugham QC, director of the Good Law Project, which also supported the challenge, 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?”
Reacting to today’s ruling, Scottish Greens co-Leader Patrick Harvie MSP said: “The decision of the court leaves open the possibility that a Prime Minister could prorogue parliament indefinitely, and that there is no recourse to challenge this misuse of power.
“It’s clear that the UK’s unwritten constitution is not fit for purpose, and that’s why Greens have repeatedly said that an independent Scotland must adopt a written constitution which clearly lays out powers and responsibilities.”
Litigation expert Jim Cormack QC, a partner at law firm Pinsent Masons, said: “Lord Doherty has refused the petition primarily on the basis that the issues raised by the prorogation of Parliament are quintessentially non-justiciable because they involve matters of high policy and political judgment.
“While some may think this is the end of the story, an urgent appeal is expected to be lodged with a hearing likely to take place this week. Indeed, arrangements could be made for the court to sit this afternoon.
“Anticipating an appeal of the decision, Lord Doherty has rejected in any event, the petitioners’ case that the advice to Her Majesty was unlawful. In particular, Lord Doherty indicated that even if prorogation was within the scope of the courts, political judgments would be relevant considerations as a matter of law.”