Brexit prorogation: Will MPs return to Commons after ‘unlawful’ ruling? What happens now?

The case was originally dismissed last week, where Judge Lord Doherty said it was for politicians and not the courts to decide on shutting down the Commons and Lords for five weeks. But three judges disagreed with Lord Doherty’s ruling and today overturned the ruling at the Inner House supreme civil court. SNP MP Joanna Cherry, who led the battle alongside Lib DeM leader Jo Swinson, tweeted this morning: “Huge thanks to all our supporters and our fantastic legal team who have achieved the historic ruling that #prorogation is #unlawful.”

The wording of the ruling said the prorogration was unlawful because “it had the purpose of styming Parliament”.

A summary of the case said: “This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”

The ruling also added there were two main reasons for Mr Johnson shutting down the Commons.

First, the prorogation was done to “prevent or impede parliament holding the executive to account and legislating with regard to Brexit”.

Secondly, it was to “allow the executive to pursue a policy of a no-deal Brexit without further Parliamentary interference”.

But what does this mean now? What happens next?

Will MPs have to return to Commons?

The decision today overturns an earlier ruling from the court, which said last week Mr Johnson had not broken the law. 

But the ruling will not immediately affect the current suspension of Parliament, which started in the early hours of Tuesday – meaning MPs do not immediately need to return to the benches.

This is because the court must first give an order to cancel the suspension, ahead of a full hearing at the Supreme Court in London.

This starts on Tuesday of next week, so what happens now is unclear – the UK is entering unchartered waters now the case has successfully been appealed.

However, Jo Maugham QC believes MPs will have to return to the benches following the landmark case.

He tweeted: “We believe that the effect of the decision is that Parliament is no longer prorogued.”

Legal expert and commentator David Allen Green also wieghed in on the debate as to what happens now.

He wrote on Twitter: “On the astonishing Scots law case. Some general points.

“Scots law is different, sometimes very different to the law of England and Wales. This includes a different approach to constitutional law matters.”

“That is why the Scottish court is able to take a different view on the legality of prorogation to that of the English high court.

“English constitutional law has been contaminated for a century by the parliamentary absolutism of Victorian jurist AV Dicey. Scots law free of that.

“This means something which unconstitutional can also be unlawful in Scotland, even if held to be lawful by High Court in London (Same in theory with Northern Irish courts).

“That is why I and others would have put the chances of the action succeeding in London as zero and that is why cannily the action was launched in Scotland, where judges and the law would be far more receptive.

“So huge kudos to @joannaccherry and other parliamentarians for taking this case forward. And congratulations to @JolyonMaugham, with whom I often disagree, for his important role in bringing this case.”

What next?

MPs are not currently scheduled to return to Parliament until October 14, when there will be a Queen’s Speech outlining Mr Johnson’s legislative plans.

But, should the court next week rule prorogation is unlawful, MPs could be brought back long before then.

The UK is due to leave the EU on October 31 and anti-Brexit MPs, or those seeking to avoid a no deal scenario, will be keen to have a say on the future of negotiations with the EU.

A spokesman for Number 10 said was “disappointed” by the decision, and will appeal to the Supreme Court.

He added: “The UK government needs to bring forward a strong domestic legislative agenda. Proroguing Parliament is the legal and necessary way of delivering this.”

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