Scottish court rules Boris Johnson’s suspension of Parliament illegal

A pro-European Union protester demonstrated in front of the Houses of Parliament entrance in London Wednesday.
A pro-European Union protester demonstrated in front of the Houses of Parliament entrance in London Wednesday.Frank Augstein/Associated Press/Associated Press

LONDON — A Scottish court ruled Wednesday that Prime Minister Boris Johnson’s decision to suspend Parliament was unlawful, a remarkable rebuke of the government’s hard-line tactics in trying to pull Britain out of the European Union.

A panel of three judges in the Court of Session, Scotland’s highest civil court, found that the decision to send lawmakers home for five weeks at the height of the Brexit crisis was “unlawful because it had the purpose of stymying Parliament.”

The ruling suggested that Johnson had misled Queen Elizabeth II, professing to want to shutter Parliament for banal procedural reasons while in fact asking her to do so to silence recalcitrant lawmakers opposed to his Brexit plans. It was another indication to some scholars of the prime minister’s open disdain for constitutional norms and legal obligations during the chaotic early weeks of his leadership.


It also deepened the political morass in which Johnson finds himself. In angling to extract Britain from the European Union by Oct. 31, with or without a deal, Johnson has lost his working majority in Parliament, exiled veteran Conservative lawmakers, and failed twice to secure an early election. He is now promising to press ahead despite a law designed to stop a no-deal Brexit.

At least one former Conservative lawmaker said Wednesday that the prime minister should resign if he lied to the queen. A few other lawmakers vowed to stage a sit-in to reopen Parliament.

The government had said it was suspending, or “proroguing,” Parliament to prepare for the start of a new legislative session. But the Scottish court disagreed, saying there was no evidence of Johnson doing anything but trying to free himself of parliamentary oversight as he pursued an abrupt Brexit over the objection of lawmakers.

“This was an egregious case of a clear failure to comply with generally accepted standards of behavior of public authorities,” a summary of the ruling said. “It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no-deal Brexit without further parliamentary interference.”


But the decision did not itself reopen Parliament. Instead it set up a showdown next week at Britain’s Supreme Court, which had already said it would review the case and take up the question of whether to halt the suspension of Parliament.

In doing so, the Supreme Court will either endorse the Scottish court’s decision, eliciting a torrent of demands for the prime minister’s resignation, or reject it and side instead with the High Court in London, which said last week that the suspension was not open to a legal challenge.

The British government said it was “disappointed” by the Scottish court’s decision and would file an appeal, describing the suspension as “legal and necessary” for normal procedural reasons. The group of lawmakers who brought the case called for Parliament to be immediately reconvened.

“Our understanding is that unless the Supreme Court grants an order in the meantime, Parliament is unsuspended with immediate effect,” said Jolyon Maugham, the lawyer whose group funded the challenge.

The office of the speaker of the House of Commons, however, said decisions about reconvening Parliament rested in the government’s hands.

It is within a prime minister’s rights to suspend Parliament, and the High Court in London noted that there were no legal limits on how long the chamber could be closed between sessions.


But suspensions typically last for only a few days, without major political implications. Sending lawmakers home as they sought to block the prime minister’s Brexit plans, on the other hand, has been described by scholars as constitutionally suspect, if not downright unconstitutional.

The Scottish court said parliamentary oversight was “a central pillar of the good governance principle enshrined in the constitution.”

It reversed a decision of its own last week not to intervene in the case. The summary of the ruling said judges had reviewed documents detailing the government’s deliberations before suspending Parliament. On that basis, it said, “the only inference that could be drawn was that the UK government and the prime minister wished to restrict Parliament.”

British lawmakers also passed a motion Monday demanding the government release private messages among senior officials about suspending Parliament. The messages were due by Wednesday night, but Parliament had no way of enforcing the order while it was not in session.

While it is the prime minister’s decision to suspend Parliament, the measure is formally carried out by the queen. In this case, the court said Johnson’s advice to the queen asking her to suspend Parliament was unlawful. The court said it would make an order declaring that the advice, and the suspension itself, was “thus null and of no effect.”


It was not clear when that order would be made.

Scottish law is different from the law in England and Wales, including on constitutional matters, scholars said Wednesday, one reason why the rulings in Scotland and in London may have conflicted.