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Scottish judges rule Boris Johnson misled Queen


Senior Scottish judges on Wednesday held unanimously that the prorogation of the UK parliament was unlawful, and they did so on the basis that prime minister Boris Johnson misled the Queen. This is a remarkable and unprecedented judgment, and it is of profound importance, even though there will be an appeal hearing next week.

Scotland has its own system of law which differs in many respects, sometimes radically, from the law of England and Wales, including a very different approach to constitutional matters. That is why the Scottish court was able to take an alternative view to the High Court in London which ruled last week, on a challenge by the anti-Brexit campaigner Gina Miller, that it could not review the prorogation as it was a political matter.

Scottish constitutional law, in particular, does not share the deference to prerogative powers of its English counterpart. There are no “no-go areas” in the constitution for an unimpressed Scottish judge.

The key to the decision was the curious matter of the missing witness statement: the government did not present an account of why and how the decision to prorogue was taken. There was no sworn witness statement from a minister or senior civil servant. Because of this, it was open to the judges to find that the reason for the prorogation was a bad one and not that officially stated — that it was for preparing for the new Queen’s Speech, which sets out the government’s legislative plans for the coming parliamentary session.

This mattered because the case brought in Scotland (like the one in England) was that the prorogation was made for an improper purpose. In particular, the judges found that the “advice” to the Queen that preceded the decision to prorogue was flawed and untrue.

In effect, though not in express terms, the Scottish court has held that Mr Johnson lied to the Queen. Not only was the advice false, but it was known by the prime minister to be false. Mr Johnson acted in bad faith.

The court has declared the prorogation unlawful and it would seem it should follow that it is void. But the practical effect of the declaration needs to be worked out. The Speaker’s office has said any recall is a matter for the government. And the Supreme Court will next week in London hear jointly appeals from this case and Ms Miller’s one.

The Supreme Court has jurisdiction for the entire UK and comprises judges from Scotland, Northern Ireland, England and Wales, and it will fall to them to reconcile the contrasting judgments into one overall decision on the legality of proroguing the UK parliament. In doing so, the Supreme Court may overturn the Scottish judgment, though that is far from certain.

Mr Johnson’s premiership has not got off to a good start. He lost his first six parliamentary votes, including having control of the business of parliament wrested from him. But this defeat is of far more constitutional significance than that of any vote in the House of Commons. He is the first UK prime minister to have been found by a court to have misled the sovereign.

The writer is a contributing editor of the Financial Times



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