CAMPAIGNERS have secured an appeal hearing after losing the first round of a legal bid to stop Boris Johnson suspending Westminster for five weeks ahead of Brexit.

A judge at the Court of Session in Edinburgh ruled against the group of 75 MPs and peers this morning, but they have already secured an appeal hearing before the Inner House tomorrow.

The group, led by SNP MP Joanna Cherry QC, had argued the Prime Minister exceeded his powers when he asked the Queen  on August 28 to prorogue parliament.

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However the UK government said the issue was a political rather than a legal one, and so should be settled in the political arena not the court.

Lord Doherty, who heard submissions from both sides on Tuesday, today ruled the issue was “not justiciable” but a political matter within Mr Johnson’s powers.

He also said parliament had time for debates before and after prorogation, and awarded costs in favour of the UK Government.

Following the appeal to the Inner House, its decision could then be appealed again to the UK Supreme Court.

Lord Doherty told the court: "In my view, the advice given in relation to the prorogation decision is a matter involving high policy and political judgement.

"This is political territory and decision making which cannot be measured against legal standards, but only by political judgements.

"Accountability for the advice is to parliament, and ultimately the electorate - not to the courts."

In 2018, Lord Doherty also dismissed a legal challenge brought by Green MSP Andy Wightman and others on whether the UK could unilaterally revoke Article 50.

In that case, his judgment was overturned on appeal at the Court of Session and went on to the Supreme Court and European Court of Justice where Mr Wightman won.

Ms Cherry said: “The idea that if the prime minister suspends Parliament the courts can't get involved looses some ugly demons.

“If he can do it for 34 days why not 34 weeks or 34 months? Where does the political power end? It is not the law as I understand it."

She later tweeted: "Delighted to advise that the #Cherrycase challenging prorogation will be heard before the Inner House of the Court of Session (Scotland’s civil Appeal Court) tomorrow at 9.30am #Brexit #stopthecoup #RuleOfLaw."

She also said she hoped the hearing could lead to secret UK Government documents about the prorogation being brought into the public domain.

Labour MP Ian Murray, who is also a petitioner in the case, added: “The fight against Boris Johnson’s assault on democracy and his plan to crash the UK out of the EU goes on.

“There will be an appeal on this ruling, and there is another court case taking place in England.

“But the main battle is currently in Parliament, where the Prime Minister has lost his majority and does not have the support of the House for his dangerous plan to impose a no-deal Brexit on the country.

“We have wrested control of parliamentary business and will attempt to pass a law that makes a no deal Brexit illegal. We will also fight to secure a final say for the people of the UK on Brexit and we must campaign to remain in the EU.”

Jolyon Maugham QC, whose Good Law Project backed both the Article 50 and prorogation cases, added: "I would be disheartened by what Lord Docherty said were it not for the fact that we have been here before. In the Wightman case, he decided that we did not even have an arguable case. History now records that we were right.”

SNP Constitutional Relations secretary Michael Russell said he would "keep a close eye on any forthcoming developments".

He said: "The Prime Minister’s plan to avoid debate and prevent legislation that would avert a calamitous no deal exit from the EU, should concern all MPs, and all citizens, regardless of their views on leaving.

“The MPs and Peers, led by parliamentarians from Scotland, who brought this action to assert their right to hold the UK Government to account, should be applauded for their efforts.

“The impact of leaving the EU, and particularly leaving without a deal, will be damaging and profound, and the attempt to deprive the Westminster Parliament of the opportunity to scrutinise the UK Government’s plans is profoundly undemocratic.”

Scottish Greens Co-Leader Patrick Harvie MSP said: “The decision of the court leaves open the possibility that a Prime Minister could prorogue parliament indefinitely, and that there is no recourse to challenge this misuse of power. 

“It’s clear that the UK’s unwritten constitution is not fit for purpose, and that’s why Greens have repeatedly said that an independent Scotland must adopt a written constitution which clearly lays out powers and responsibilities. 

“In the meantime, I would urge the petitioners to explore every possible avenue for an appeal against this ruling. UK politics is currently in crisis and it is vital that parliament uses all its leverage to control Johnson’s menacing regime.”

READ MORE: Scottish court to hear bid to block suspension of UK Parliament

The Scottish Government’s top legal adviser, the Lord Advocate James Wolffe QC, was given permission to join the case on Tuesday.

Two other legal challenges to prorogation are being heard in London and Belfast.

Mr Johnson has argued the prorogation was a standard resetting of the parliamentary calendar ahead of a new legislative programme on October 14.

However his opponents said shutting down parliament was a constitutional outrage, as it stopped MPs holding the government during the Brexit crisis.

They also said Mr Johnson had done it to reduce the time in which MPs could try to block a no-deal Brexit.

In the end, the approach backfired, galvanising opposition to the PM, who lost control of the Brexit process in a Commons vote on Monday night.

On Tuesday, the Court of Session heard Mr Johnson had approved prorogation almost two weeks before ministers flew to Balmoral to ask the Queen in person.

A secret memo dated August 15 from Nikki da Costa, a Number 10 legal adviser, outlined a plan to prorogue parliament from September 9 to October 14.

In a handwritten note, Mr Johnson agreed, saying he did not see anything “especially shocking” about the prorogation as the September session of parliament was “a rigmarole.. to show the public that MPs were earning their crust”.

Aidan O’Neill QC, for the campaigners, told Lord Doherty that at the same time the policy was agreed, government lawyers were insisting prorogation was “academic”.