The mess got messier very quickly. Yesterday the British Government was mired in a political mess, today it’s mired in a legal mess as well. Today all three judges in the highest Scottish court, the Court of Session, have ruled that the prorogation of parliament was unlawful. The case was brought by a group of MPs led by the SNP’s redoutable Joanna Cherry QC, who has been indefatigable in her use of the courts as a means of holding an overweening government to account. I had planned to take the day off today, cos it’s my birthday, but I couldn’t not blog about this lovely present to all of us from Joanna.
None of the judges dissented from the ruling. The court found that the prorogation was illegal because the UK Government sought it in order to prevent itself being scrutinised by Parliament, and not as the Government has claimed in order to introduce a new legislative progamme. This blog doesn’t call Boris Johnson Lyin’ Bastert Johnson for nothing, but today’s ruling means that the highest court in Scotland has found that LBJ has lied to the monarch and lied to parliament. We are being governed by lawbreakers whose actions in parliament are illegal. This is constitutionally explosive stuff.
The Scottish judiciary is not exactly noted for being a bastion of pro-independence sentiment, although if you were to look at some of the comments from Brextremists on social media you’d imagine that Scottish judges were all in the pay of the SNP. The sentiment that many are expressing is how every dare those uppity Jocks interfere with the glorious march to Brexit and contradict their betters in an English court. The High Court in London issued its full judgement today on its ruling last week that the matter of prorogation was not one which the court could rule on.
But this isn’t just a reaction from some zoomers on social media. Downing Street itself has released a pursed lipped statement which attempted to impugn the neutrality of the Scottish courts and implied that Scotland’s legal system is a nest of separatism actively plotting to block Brexit. The statement said, “We note that last week the High Court in London did not rule that prorogation was unlawful. The legal activists choose the Scottish courts for a reason.” That’s an actual press release from the Prime Minister’s office. Reflect on that for a second. The party that calls itself the party of law and order is attacking law and order. Gavin Barwell, who was Theresa May’s chief of staff, tweeted that this was a very unwise path for a party that believes in a) the union, and b) the rule of law, to go down.
Even Tory MSP Adam IT’S THE LAW Tomkins is very concerned by the reaction from Downing Street. He tweeted: “To politicians who don’t like court judgments: don’t attack the judges or the independence of the legal system. Don’t ever do that. Appeal, test your legal arguments in a superior court. Why does this even need saying?”
It needs saying Adam, because your party is led by a man who is a liar, a charlatan, and a populist opportunist who believes himself to be above the law and whose only guiding light is the unshakeable conviction that rules are for other people. He is quite prepared to trash the constitution, to destroy the rule of law, and to light a bonfire of democratic standards in order to secure his power. Everyone outside the narrow confines of the Conservative Brexit wing understood this before the man ascended to leadership. We warned you. So why are you surprised by this?
The Scottish Court of Session isn’t exactly noted as being an active partisan force in holding the executive to account. Like Gavin Barwell it isn’t notable for its sympathies with Scottish independence. It is instinctively conservative, with a small c. The real reason the case was lodged with the Scottish courts in the first instance was because English courts don’t sit in August – that’s because we don’t have a summer in Scotland. But Number 10 isn’t going to let that fact get in the way of its conspiracy theories. The zoomers have taken over the British government.
The matter will now go to the UK Supreme Court. It is expected that the hearing will be on Tuesday of next week. There is currently another court case on the legality of the prorogation winding its way through the English courts, and a ruling is expected on that case later this week. The Supreme Court will most likely take both judgements into account when it hears the case next week.
Should the UK Supreme Court overrule the highest Scottish court, on a ruling which the three judges of the Court of Session unanimously agreed on, it will be a further nail in the coffin of a union which is already more nail than wood. Scots law is very different from English law, and a Scottish court naturally will on occasion come to a different conclusion about the law than an English court will.
Politicians are now demanding that Parliament is recalled immediately. That won’t happen. The appeal will be heard in the Supreme Court on Tuesday and it will make a ruling. One of two things can happen. The Supreme Court can uphold the unanimous finding of the Court of Session, which will mean that the Government will be in contempt if it doesn’t recall Parliament immediately. A Parliament which returns to sit after the prorogation has been found to be illegal by the highest court in the UK is a Parliament which is highly likely to impeach the Prime Minster. There’s going to be a lot of very unhappy MPs who will be eager to voice their opinions. Get the popcorn ready.
Alternatively the Supreme Court can overrule the Court of Session, and that will spark off yet another political crisis. The UK Supreme Court is of course the highest court in the UK, but it sits in London, and the majority of its judges are steeped in English law, not Scots law. For those who call themselves Unionists, the optics of this are very bad. Overruling the Court of Session will appear as an English court and English law overruling Scots law in a matter which directly affects Scotland. The Westminster Parliament is, after all, Scotland’s Parliament too. A ruling which overturns the Scottish Court of Session will be seen as an English court asserting the primacy of English law over Scots law within Scotland and will only highlight the ever starker constitutional and political differences between Scotland and the rest of the UK. Politically that’s going to be difficult for the Tories to sell in Scotland. The party of law and order that doesn’t respect the law, the party of the union that wants Scots law to be subordinate to English law, led by a Prime Minister who casts aspersions on the independence of the Scots judiciary.
This mess just got a lot messier.
My new book has just been published by Vagabond Voices. Containing the best articles from The National from 2016 to date. Weighing in at over 350 pages, this is the biggest and best anthology of Wee Gingerisms yet. This collection of pieces covers the increasingly demented Brexit years, and the continuing presence and strength of Scotland’s independence movement.
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