Supreme Court case begins in head-to-head battle between Scottish and English rulings

PUBLISHED: 10:21 17 September 2019 | UPDATED: 11:42 17 September 2019

Protesters outside the Supreme Court in London where judges are due to consider legal challenges to Boris Johnson's decision to suspend parliament. Picture: Kirsty O'Connor/PA Wire

Protesters outside the Supreme Court in London where judges are due to consider legal challenges to Boris Johnson's decision to suspend parliament. Picture: Kirsty O'Connor/PA Wire

A legal battle over Boris Johnson's prorogation of parliament has begun in the UK's highest court.

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Members of the media and protesters outside the Supreme Court in London. Picture: Kirsty O'Connor/PA WireMembers of the media and protesters outside the Supreme Court in London. Picture: Kirsty O'Connor/PA Wire

The Supreme Court in London is set to hear appeals from two challenges which were brought in English and Scottish courts, which each came down on different sides on the issue.

Johnson claimed that the prorogation was a routine move brought about to allow the government to set out its new agenda with a Queen's Speech. But challengers have claimed that the length of the suspension was designed to prevent parliamentary scrutiny of the government's actions on Brexit.

While anti-prorogation activists gather in a silent protest outside the court, the 11-strong panel of Supreme Court justices must try to reconcile two different judgements that were made on the issue.

MORE: Confused by the courts? Your recap on Brexit legal cases

In London's High Court, the case brought by businesswoman Gina Miller against the government was dismissed on the basis that the decision was not justiciable, being a "purely political" matter and not for the consideration of the courts.

But in a case brought by Joanna Cherry QC to Edinburgh's Court of Session, judges concluded that the suspension was unlawful as "it was motivated by the improper purpose of stymying parliament".

MORE: Gina Miller vows to fight on to stop Boris Johnson proroguing parliament

MORE: Boris Johnson broke the law suspending parliament, Scottish court rules

Lord Carloway, Scotland's most senior judge, said: "The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake."

Following this, a Downing Street source claimed the litigants "chose the Scottish courts for a reason", prompting Nicola Sturgeon to brand the comment "deeply dangerous".

On BBC's Radio 4 Today programme, justice secretary Robert Buckland said that the prime minister "respects the independence of the judiciary and the rule of law", in an attempt to answer concerns that Johnson could attempt to ignore the law.

Gina Miller's challenge is supported by former prime minister Sir John Major, shadow attorney general Baroness Chakrabarti and the Scottish and Welsh governments, who are all interveners in the Supreme Court case.

Meanwhile Joanna Cherry's case is supported by a cross-party group of around 75 MPs and peers, led by SNP MP Joanna Cherry QC, was responsible for the Scottish challenge.

The appeal against Cherry's successful case is being brought by the Advocate General for Scotland, on behalf of the Westminster government.

Victims' campaigner Raymond McCord - who brought separate proceedings in Belfast, arguing that a no-deal Brexit would damage the Northern Ireland peace process - has also been given permission to intervene in the Supreme Court case.

In a statement ahead of the hearing, Miller said: "As with my first case, my Supreme Court case is about pushing back against what is clearly a dramatic overreach of executive power.

"This is an issue that cuts across the political divides - and the arguments about the EU - and it has united remainers and leavers and people of all political complexions and none in opposition to it."

She said that if the prorogation is allowed to stand, Johnson sets a "terrifying" precedent. "Any prime minister trying to push through a policy that is unpopular in the House and in the country at large would from now on simply be able to resort to prorogation," she argued.

"No one could ever have envisaged it being used in this way: this is a classic power grab."

She added: "The reason given for the prorogation was patently untrue and, since then, the refusal to come clean or provide any of the disclosures we have asked for has compounded the deception.

"It is my view - and the view of a great many others - that Mr Johnson has gone too far and put our parliamentary sovereignty and democracy in grave danger by his actions."

Johnson advised the Queen on August 28 to prorogue parliament for five weeks from the week of September 9.

The Supreme Court judges will hear submissions from the parties and interveners from Tuesday to Thursday, but it is not clear when they will give a ruling.

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