Courts in England and Scotland have come to radically different conclusions on the legality of Boris Johnson’s decision to prorogue Parliament for five weeks.
The Inner House of Scotland’s Court of Session overturned an earlier decision of the Outer House which held that the prorogation was lawful. While the court’s full opinion hasn’t been released yet, the summary reveals that the three-judge panel unanimously found that a) the Prime Minister’s advice to the Queen was justiciable; b) the advice was motivated by the “ improper purpose” of stymieing Parliament, rendering the advice and its consequences unlawful. Lord Brodie went so far as to characterize Johnson’s advice to Her Majesty as “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”
In England, however, the High Court unanimously found that they had no jurisdiction over the matter. In essence, they decided that prorogation was a political question and therefore outside their remit. They also noted that prorogation for purely political purposes is hardly a novelty, citing the Attlee government’s use of prorogation to speed up their efforts to reduce the House of Lords’ power to delay legislation. “Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review.”
The fact that two courts have come to opposite conclusions provides a vivid reminder that English law and Scots law are not simply reskinned versions of each other. It now falls to the Supreme Court to decide which approach should prevail.