A judge in Edinburgh has begun hearing arguments over the prime minister’s plan to shut down the UK Parliament.
A cross-party group of parliamentarians wants a ruling at the Court of Session that Boris Johnson is acting illegally.
The UK government is opposing the move, and argues it acted within its powers by seeking to prorogue Parliament.
The prime minister wants to suspend Parliament for five weeks ahead of a Queen’s Speech on 14 October.
Lord Advocate James Wolffe QC – Scotland’s top law officer – has been given permission by the judge to take part in the hearing.
Mr Wolffe is expected to argue that the suspension of Parliament prevents scrutiny of the government’s plans and represents an abuse of executive power.
The parliamentarians – headed by SNP MP Joanna Cherry and Liberal Democrat leader Jo Swinson – first went to the Court of Session at the start of August.
The Queen has subsequently agreed to the prime minister’s request to suspend parliament in September and October.
Lord Doherty has refused to order a temporary halt to prorogation.
Because Parliament cannot be suspended until 9 September at the earliest, he ruled that no interim interdict was needed ahead of the full hearing.
The judge will not decide on the merits of the case until he has heard further legal arguments from both sides.
During a hearing on Thursday, both sides put their views on the merits of a temporary order.
Aidan O’Neill QC, representing the parliamentarians, told Lord Doherty: “Powers of the executive are never unlimited or unfettered.
“We do not live in a totalitarian state.”
He went on to argue that the suspension of parliament meant a denial of “political accountability” and was unconstitutional.
Roddy Dunlop QC, representing the UK government, said proroguing was an exercise which the Queen alone could enter into, and was not a matter for the courts.
He cited “classic examples of where the courts would not interfere” on prorogation and dissolving parliament, which he said was an analogous issue.
Mr Dunlop argued that there was a clear convention in the Queen following her government’s advice, and there was a weight of evidence to suggest that such conventions were “non justiciable” – not subject to trial in a court of law.
Court of Session case: How we got here
- 22 July – It emerges that a cross-party group of MPs and peers plans legal action to prevent Parliament being “closed down” in the run-up to Brexit
- 13 August – The group go to the Court of Session in Edinburgh and Lord Doherty agrees to hear arguments from both sides in September
- 28 August – The parliamentarians seek an interim interdict to block Boris Johnson’ move to prorogue Parliament
- 29 August – Lord Doherty hears four hours of argument from both sides
- 30 August – The judge refuses an interim interdict but brings the full hearing forward to 3 September.
After Lord Doherty’s initial ruling, a UK government spokesman said: “As we have set out, the government needs to bring forward a strong domestic legislative agenda and MPs are not prevented from scrutinising our withdrawal from the EU.
“We are glad the court found against the interdict – there was no good reason to seek one, given the full hearing is due to take place next week, and the process of bringing the session to an end will not start until the week commencing 9 September.”
Jolyon Maugham QC, director of the Good Law Project which is supporting the challenge, has said: “A man with no mandate seeks to cancel Parliament for fear it will stop him inflicting on an unwilling public an outcome they did not vote for and do not want.
“That’s certainly not democracy and I expect our courts to say it’s not the law.”
Prorogation in a nutshell
Parliament is normally suspended – or prorogued – for a short period before a new session begins. It is done by the Queen, on the advice of the prime minister.
Parliamentary sessions normally last a year, but the current one has been going on for more than two years – ever since the June 2017 election.
When Parliament is prorogued, no debates and votes are held – and most laws that haven’t completed their passage through Parliament die a death.
This is different to “dissolving” Parliament – where all MPs give up their seats to campaign in a general election.
The last two times Parliament was suspended for a Queen’s Speech that was not after a general election the closures lasted for four and 13 working days respectively.
If this prorogation happens as expected, it will see Parliament closed for 23 working days.
MPs have to approve recess dates, but they cannot block prorogation.