The UK would be in “unprecedented territory” if the Court of Session rules that the decision to prorogue Parliament breaks the law, according to law experts.
A legal hearing on whether the Prime Minister can legally suspend Parliament to force through a no-deal Brexit was due to be held on 6 September, but yesterday the petitioners raised an interim interdict in the Court to overturn the suspension.
It is possible that the court will hear the petition to suspend the prorogation of Parliament today, although The Scotsman understands the UK Government is attempting to push the hearing to Friday.
The petition has been lodged by a cross-party group of members of the House of Commons and the House of Lords, from Scotland, Wales and England, supported by the Good Law Project. While it will be heard in a Scottish court, anti-Brexit campaigner Gina Miller is considering lodging a similar petition in England.
Jo Maugham QC, of the GLP, said they had lodged the interdict because Mr Johnson’s actions were a “constitutional outrage”. He said: “We believe Parliament can be unsuspended and will be asking the Court of Session to do exactly that either tomorrow or on Friday.”
Jim Cormack, QC, partner at law firm Pinsent Masons, said the Queen approving the Government’s request to suspend Parliament “means the petitioners in the Scottish judicial review now face the exact situation they set out to prevent” but the “fundamental basis of their challenge remains to be decided by the court. This is on the basis that the courts have the power to intervene and halt the suspension of Parliament.”
Nick McKerrell, a lecturer in law at Glasgow Caledonian University, said the legal action was “unusual” because it centres on the suggestion that the decision to prorogue Parliament breaches the rule of law and would “intervene in a political decision”.
He said that, while judicial review was a standard legal process, the “difference here is that those raising the case argue the decision fundamentally breaches the rule of law – which is seen as central to the UK constitution”.
Mr McKerrell said it would be a “big ask” for the court to say the Queen, acting on the advice of the PM, is ignoring the UK constitution but added: “That would not stop the court ruling on it. We really would be in unprecedented territory there if that happened.”