Boris Johnson received a boost on Friday when a senior judge in Scotland refused to issue a temporary ban — an “interim interdict” in Scottish law — on the Prime Minister’s decision to prorogue parliament for five weeks until October 31.
A spokesman for Boris at 10, Downing Street, was jubilant: “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 September 9.”
However, the full hearing of the case, brought by 70 MPs and peers, will now be heard next Tuesday, rather than Friday.
Rejecting the demand for a temporary ban on the suspension of parliament, Judge Lord Doherty said: “I’m not satisfied that it has been demonstrated that there’s a need for an interim suspension or an interim interdict to be granted at this stage.
“A substantive hearing is set to place for Friday September 6, before the first possible date parliament could be prorogued.”
Aiden O’Neill QC, representing those for the action, argued for the substantive hearing to be moved forward.
He said: “There is an urgency to this — any delay is prejudicial — not just to the prejudice of the petitioners, but to the country as a whole.”
Lord Doherty agreed: “I’m going to move the substantive hearing forward to Tuesday. Weighing consideration in the balance, it’s in the interest of justice that it proceeds sooner rather than later.”
Labour MP Ian Murray, who is backing the legal action, said: “This verdict means a full hearing has been fast-tracked to next week, which is now the most important week in modern British history.
“It is disappointing that we have to go to the courts to protect British democracy, but Boris Johnson’s attempt to silence the people’s representatives cannot go unchallenged.
“As well as this legal battle in the Court of Session, the campaign against a no-deal Brexit will also take place in the House of Commons.”
Some of the legal arguments have already been rehearsed in front of Lord Doherty.
O’Neill QC told the judge: “Powers of the executive are never unlimited or unfettered. We do not live in a totalitarian state.”
He argued that the suspension of parliament meant a denial of “political accountability” and was unconstitutional.
Roddy Dunlop QC, representing the government, said proroguing was an exercise which the Queen alone could enter into, and was not a matter for the courts.
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.
He said parliament had never had a say in prorogation, that it was “entirely normal” for prorogation to occur and the issue was not for the courts just because the period was longer than in previous years. Dunlop claimed the parliamentarians were asking the courts to “tread where they are ill-qualified to venture” due to the “intensely political” nature of the issue.
The government faces two other legal challenges – one in the Belfast High Court and another in the High Court in London, which the former Prime Minister Sir John Major announced on Friday he would support.
Meanwhile, the Labour leader Jeremy Corbyn, who will attempt to prevent a no-deal Brexit through legislative means in the Commons next week, is urging his MPs to take to the streets.
In a letter to his MPs, he encouraged them to join public protests against a no-deal Brexit.
He said: “There are also public protests across the country this Saturday, there will be a rally in Parliament Square on Tuesday evening, and I encourage Labour MPs to be present and to share our message.”
Boris’s basic argument, which has been taken up by right wing newspapers and commentators, is that he can override parliament
because “the people have spoken” – a reference to the 52-48 vote in the referendum in 2016 in favour of leaving the European Union.
Hence, the next general election is already being described as “people vs parliament”.