The ruling from three judges in Scotland’s highest court could not have been starker: Boris Johnson’s decision to suspend parliament for five weeks “was unlawful and is thus null and of no effect”.
It does not mean that parliament will be recalled immediately, however, because the judges decided not to issue such an interdict until the UK supreme court considers another case against the prorogation next Tuesday.
Downing Street said it would appeal the Scottish court decision, which followed an appeal against a lower court's rejection of the case taken by 79 parliamentarians led by the SNP's Joanna Cherry. Opposition politicians have demanded that MPs should return to Westminster immediately but any decision to recall parliament must be made by Queen Elizabeth on the advice of her ministers.
The Scottish court ruled that Johnson’s advice to the queen urging her to prorogue Parliament for five weeks was unlawful because its purpose was to stymie the work of MPs. “All three first division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying parliament and that it, and what has followed from it, is unlawful,” the court said.
Most damagingly for the prime minister, the judges concluded that documents produced in court showed that his true purpose was not to allow the government to bring forward its domestic agenda as he claimed but to pursue a no-deal Brexit without parliamentary interference.
Labour's shadow Brexit spokesman Keir Starmer said it was not unusual for a court to rule that a government acted unlawfully but for the judges to say that the prime minister had not given the true reason for suspending Parliament suggested they had overwhelming evidence to that effect.
“It is incredible in one sense, that the judges have gone into this space, used the language they have, saying that essentially the prime minister, his real motive was to frustrate the process and to shut down parliament,” he said.
“For a court to say that the documents really point one way, that they undermine his case to a point where they have ruled him unlawful, that’s an incredibly powerful thing for them to have done.”
Courts in Scotland and in Northern Ireland often take a different approach to constitutional issues than those in England and Wales, and they are more inclined to rule that unconstitutional actions by a government are also unlawful. So the government will hope that the supreme court will next week overturn the Scottish court’s decision and leave Parliament suspended until October 14th.
Johnson’s advisers are confident that their strategy of framing the next election as a battle between the people and Parliament over Brexit will be successful. And they will have few scruples about portraying the judiciary as part of an out-of-touch elite standing in the way of an early exit from the EU.
The controversy over prorogation has already created disharmony within the Conservative party, however, which the court judgment can only amplify. Former Conservative attorney general Dominic Grieve said on Wednesday that if Johnson is found to have misled the queen, he should resign.
And if the supreme court upholds the Scottish judges’ ruling next week, MPs will return to Westminster where they can take up where they left off this week in inflicting one defeat after another on the prime minister as they subject his Brexit policy to the scrutiny he seeks to avoid.