Carloway, Brodie and Drummond

All three judges in Scotland’s Highest Court of Appeal have ruled Prorogation to be unlawful.

Lord President Carloway declared it: ‘unlawful to stymie parliamentary scrutiny’.
Lord Brodie called it an: “egregious case” of failing public authority standards.
Lord Drummond Young stated its: ‘purpose was to prevent scrutiny’.

The reports of people tuning in to BBC Radio Scotland to get an update on the momentous events of the day, only to be met with an extended piece about Bees is hilarious. You can just imagine if we were in the grip of an actual revolution, as we were storming the barricades BBC Scotland would be broadcasting: “From the Beechgrove Garden a special about Crocus varieties…”.  “So Jim – is it perennials or climbers we are talking about here?” The broadcast is only interrupted as the protestors crash through the studio door.

If Tom Nairn’s famous quote: “Scotland will be free when the last minister is strangled with the last copy of the Sunday Post” spoke to a 70s stifling Presbyterianism and large and small C Conservatism, disdain for our public broadcaster’s inadequacy has spilt out beyond the confines of the nationalist community into the wider public. It looks and feels badly under-funded, editorially slow-footed, often politically inept and frequently infantile.

Irony is everywhere. Here was a momentous political moment with huge implications and Scottish listeners were turned to Sky News or LBC to find out what was going on.

The judgement is hugely significant. It exposes the stability and credibility of the “precious union” at precisely the moment when in the midst of a full-scale constitutional crisis. No 10s immediate reaction was to attack the Courts themselves, improbably accusing them of being “political”.

No 10 issued a statement saying: “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”.

It’s a statement that they have since tried to row back from.

For some people who have over-dosed on Brexit this may seem dull as a dusty legal text book. But it matters. Johnson is the first UK Prime Minister to have been found by a court to have lied to a monarch.

If the Supreme Court follows the Scottish court and finds that Boris Johnson misled the Queen then will have to resign.

With a (minus-forty-four) lack of a majority, it cannot be assumed a Conservative will be invited to succeed him as Prime Minister.

David Allan Green – the FT’s legal editor said:

“The Scottish court has found unanimously that the Prime Minister misled the Queen. In effect, the court has held that Boris Johnson lied to the Queen so as to obtain prorogation. Wow. Just, wow. Not seen a court decision like this in thirty years of constitutional geekery.”

Legal commentator Michael Gray said:

“This decision is explosive. Whatever happens in London, Scotland’s supreme court has ruled that Boris Johnson broke the law. That he shut down parliament illegally. That is hugely symbolic. Sources in Downing Street have already attacked the Scottish Judges and the Scottish system as politically biased. The system is of course protected under the Act of Union (1707) and it shows the hypocrisy of those in Downing Street. The Brexiteers said they wanted to empower domestic courts, but apparently not if they’re Scottish, they said they wanted to empower parliament, and then they shut it down. They say the Union is precious but not if Scotland or its courts exercise autonomy contrary to their demands.”

The affair has magnified attitudes and exposed ignorance about our legal institutions and laws. Many of the public assumed the Scottish legal system to be inferior to the English one.

In fact as one of Scotland’s leading civil lawyers, Jonathan Mitchell QC, has explained Scotland has a different legal system but its courts have parity with English and Welsh courts under the UK’s constitution.

He said they often disagreed on less serious issues, such as immigration cases. “Until it gets to the supreme court, the two national courts have equal standing,” he said.

He tweeted: “The United Kingdom Supreme Court will give no ‘primacy’ to either legal system but will treat them as of equal status, as they are.”

So while the assumption that Scotland doesn’t have its own legal system, or that if it did it would be of a lesser standing is revealing of public attitudes but quite wrong.

The SNP MP Kirsty Blackman has lead cross-party gathering of MPs calling for Parliament to be recalled. She has argued that after the Scottish courts found Boris Johnson’s shutdown of Parliament unlawful, Parliament must now be recalled immediately, so that MPs can scrutinise the Prime Minister with just 50 days until the Brexit cliff edge.

Kirsty Blackman and other SNP MPs, as well as figures from across the opposition parties, have gathered in front of Parliament to apply pressure to this shambolic Tory government.

But legal advice suggest that’s not what the ruling means.

Jonathan Mitchell QC again said the refusal by Lord Carloway, the lord president, and his two colleagues to impose an interdict or injunction ordering parliament to be reconvened meant the court had not instructed the UK government to do anything.

“The court stated its opinion but it didn’t do anything to be acted upon,” he said. “What the court did was clearly with an eye to the fact this will be decided by the supreme court in a week.”

But amongst the legal detail and argument there’s a deeper irony at play.

As Peter Arnott put it:

The paradox is that it takes a case brought by a nationalist in a Scottish court to protect the legality for which the UK is supposed to stand. I can’t think of a better metaphor for the wider paradox that the CORE of Scottish Nationalism is the defense of lost British values.”

What’s at stake? The rule of law, the concept of parliamentary democracy, the credibility of the union, the survival of the Conservative Party, the possible incarceration of Boris Johnson.

Now what?

That wasn’t a full judgment. That’s going to be published on Friday. Then a week more of high-drama, after which the Supreme Court will decide.

 

 

 

 

Comments (19)

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  1. Dougie Blackwood says:

    What are the chances of this ruling being overturned by the “Supreme Court”? I suspect that is very likely since the high court in England has ruled that the courts should not get involved in political matters. We shall see next week.

    In my view it is essential that the judiciary have oversight of all actions in every sphere of activity. The actions of those in parliament are particularly in need of this oversight as those that wield the levers of power could do untold harm in every area of the citizen’s life and it is necessary for there to be a means of holding them to account.

    In my view we cannot allow any group of people to make decisions that are against the interests of other sections of society. At present we have the political imperative to overcome Brexit and UKIP parties pushing the Tories into a right wing and authoritarian position, effectively morphing into and joining with these extreme parties. This is exactly the path followed by the Nazi party in the 1930s and there must be a mechanism to prevent that happening. I cannot see other than the courts taking a stand to protect minorities among the population against any actions that are against their interest.

    1. Jo says:

      Exactly Dougie.

      I read some of the English judgement today and couldn’t get some of it. It said the courts couldn’t interfere because Johnson’s decision to prorogue was “political”. Well we know, but that has various interpretations. All governments make decisions that are political! This one is no different, only this decision was designed to shut out Parliament from the political process altogether and that’s an affront to democracy.

      I was on the Guardian live site during the day. Some of the comments were hilarious.

      “The Scots have it! The Scots have iiiiiiiit!”

  2. Graeme McCormick says:

    Now that Scots Law has found its voice can every Scot check the consumer contracts they enter into formobile phone, home deliveries, credit cards, hire purchase, credit saleto name but a few that they are governed by Scots Law?

    Most are not.

    If we all challenged our suppliers they would be forced to recognise Scots Law and this would signify in. Personal way Scottish Independence.

  3. Kenmath says:

    The Court of Session has unanimously determined that an illegal act was committed. That act was committed on Scottish soil by agents of the Prime Minister passing his advice that the prorogation was necessary to the Queen, upon which she approved the request, so there can be no dispute that the illegal act falls under Scottish jurisdiction and is therefore rightly to be judged by a Scottish Court. It is now a farcical situation that an English court can judge the act to be “not unlawful”, whereas a Scottish court can deem it to be illegal. As I understand it, the Scottish judgement took into account documentary evidence, which the English court did not – its judgement was simply that it had powers to act on legal matters, not political matters and that it viewed it as a political matter.

    If the UK Supreme Court overturns the opinion of the Scottish judges it will undermine the devolution settlement, the position of Scots Law in the UK and the act of Union 1707

    1. North Britain says:

      Indeed. The Supreme Court – whichever decision it makes – will be dynamite for Scottish independence.

      If it rules against the Court of Session Appeal court – Scotland’s highest court – then it makes a mockery of the Treaty of Union. The decision of the Court of Session appeal judges was unanimous and damning its in verdict of PM Johnson. Such a Supreme Court ruling would only increase the calls in Scotland for independence.

      If it rules for the Court of Session Appeal court… then the PM will be forced to re-convene Westminster and possibly even resign (having misled the Queen). Johnson doesn’t look like a resigning sort of person; but he may try to lose a Vote of No Confidence in his Government (again) to force a General Election. What the public will make of his shenanigans I don’t know. It certainly won’t play well in Scotland where the Tories face a wipeout. In England? The calls in England to be ‘rid of Scotland’ as a troublesome Remain voting upstart may become deafening. Whether Johnson can ride those calls to victory or not… it can only increase the push for Scotland to be independent.

  4. Charles L. Gallagher says:

    Mike,

    Has anyone considered the possibility of Civil War in Englandshire if the Chump MkII ignores Parliament and the Courts and tries to stand aloof from them all? Was this not how the Englandshire Civil War at the time of Charles 1st started?

  5. EyeSee says:

    I’m not familiar with the obviously very strange judicial system that Scotland has evolved. Elsewhere I believe you have to have proof of crime and present your case in detail. I gather in Scotland the ‘law’ is based on the personal opinion and political leanings of judges. Three, including one who struggled with reading, have divined what another person was thinking and decided that these thoughts then caused an individual to go on and do something the judges disagreed with. The United Kingdom has an unwritten Constitution and the prorogation of parliament is supposed to happen more often than currently. It is overdue. It is entirely plausible that the government, to save the nation from yet more childish wailing and screaming from MP’s focused on preventing the enactment of the will of the people (the sole reason parliament exists), chose a date that suited this purpose. There is no rule or law that requires a specific set of circumstances in which it is used. If you want to prosecute a pure act of malice and illegality, try the law passed just before Johnson asked for an election, when the highly partisan (impartial) Speaker said that the law didn’t affect Royal Prerogative, when it clearly did. Now that really is interfering with the office of Sovereign.

    1. Jo says:

      Are you a BBC journalist?

      1. John Mooney says:

        Jo,just another unionist troll who has no idea whatever in respect to the Treaty of Union,but then again these “unionist” do not even realise the implications this judgement has to this so called “Precious Union”. I think this case would appear to be the straw that breaks the camels back and surely accelerate the cause of independence,as for the bbc actively Murmuring the Scottish Judges are they so stupid not to realise that to “Murmur” a judge is a criminal offense,but then again the usual myopic outlook from this pathetic uk media.

    2. Interpolar says:

      Well if this is your view if the Scottish legal system, too bad, you’ll just have to run with it for as long as Scotland is part of the UK. Don’t expect it to go England’s way every single time. It’s what the call Bitter Together.

      1. John Mooney says:

        What are you trying to say,it would seem to be a incomprehensible load of pathetic bullshit trolling so foxtrot oscar.

        1. Interpolar says:

          What I‘m trying to say is in response to Eyesore, not you John. Although the comment is placed below yours, the indent indicates that it refers to the above.

          1. John Mooney says:

            Thanks for the correction,please accept my apology with regard to my intemperate use of language,as for the troll eyesore he epitomises everything that is rotten at the core of this pathetic union.

  6. Jo says:

    Yes, Mike, I already knew how awful the BBC was but, by God, since Parliament returned they’ve got a hundred times worse. Oh how I wish there was a group of really rich folk who could take legal action against it for failing, utterly to abide by its own code of conduct. It needs dismantling and cut loose from the public purse.

    It has backed Johnson to the hilt no matter what he does. Its journalists are shameless in their support of him as they attack those from other Parties who call him out.

    Emily Maitlis (NN) is, for example, an absolute monster and has been more monstrous than usual these last ten days. She’s snapping and even shouting at folk. Unbelievably unprofessional. Totally unfit to call herself a journalist. Yet it’s tolerated.

    Vicky Young, on the day Bercow announced he was going, spent at least half an hour b*tching about him, rolling her eyes at tributes being paid to him and making it clear she couldn’t stand him! Again, so unprofessional yet funded by us, the public.

    On Monday night I followed events in Parliament to the very last. It was extraordinary to watch and I’d watched throughout the day, particularly the parts where this disgrace of a Prime Minister had bothered to turn up. When he did, all he did was mock others and, significantly, declare he didn’t intend to obey the Act given royal assent just that day. Meanwhile the hoodlums beside and behind him brayed like donkeys across the floor shouting down anyone who didn’t agree.

    Since the whole Brexit pantomime began, the BBC’s finest have been gathering to have little podcasts. These involve the likes of Kuennsberg, Vicky Young, Katya their gal in Brussels, Chris Mason and a couple of others. They come over like a bunch of weans, giggling and exchanging pieces of gossip. Cringeworthy. Oh, they discussed events in the Commons in the early hours of Tuesday. Ridiculed the singing that took place. But not a single word about Johnson’s behaviour or his declaration that he’ll refuse to comply with the law. Not a word.

    Today and tonight the BBC continues to pour cold water on today’s court decision. John Pienaar has just dismissed the findings and said how it’s understandable that it’s been implied the courts are biased! He said it could all help Johnson be seen as willing to defend ” the people” against all comers… even the courts! Yes, this is what we’re funding!

    It’s really time the BBC was done away with and made to function without public money. I resent having to contribute to the salaries of “journalists” who are no such thing or to a body which repeatedly fails to uphold the requirement to maintain politically impartial. It’s bad enough that there are rabidly biased, privately owned news publications. It’s something else again for the BBC to behave in the same manner and expect public funding for it.

    1. James Greer says:

      Jo your description of the “journalists/presenters” on the BBC remind me of the interview that Jackie Bird did with Alex Salmond just before the Independence Referendum on 2014. During it she rolled her eyes and was quite disparaging to Alex during his responses to her questions. It looks like when the “Precious Union” is under threat the BBC handbook of interviewer techniques is to treat the interviewees that support the opposite view with utter contempt, which will influence the more gullible of the viewers of which side they are expected be on. Thank goodness many of us have woken up to the BBC stands for State Propaganda.

  7. Jo says:

    Incidentally, isn’t the response to the Belfast challenge to be issued on Tuesday? I wonder how that one will go.

  8. SleepingDog says:

    Without the text of the conversation between Boris Johnson and the Queen, it remains a possibility that the Queen broke the law, but since she is ‘constitutionally’ above it, it is tactically convenient to bring the case against Johnson alone.

    Rather than simply calling for the abolishment of the BBC, which a lot of really unsavourly types are slavering for, we might be better considering what charter a real public broadcaster should be given, by the People not the Queen. One essential role, for me, would be to support collective decision-making (which I think more accurately describes what is needed than the inadequate flavour of ‘democracy’ the public is allowed). In other words, it is not just the People who should be ‘challenged’ but the political system and power relations, with proper consideration of flaws, alternatives and improvements, with rolling and look-ahead monitoring.

    Plus if we are going to get a rational political system that works to modern speed requirements, we are probably going to need a machine-readable constitution and machine-readable law (including machine-readable international treaties). And that will almost certainly require an international legal language that avoids the current situation where drafts in one modern language can mean something different in another. And an automatic translation and advice service for citizens. And dismantlement of neoliberal protections for corporations, but that is another story.

  9. maxwell macleod says:

    Interesting that you are quick to be rude about church of Scotland ministers when Lord ( Phillip )Brodie, who led the charge, was brought up in a Manse by one of the former leaders of the church of Scotland !

  10. Welsh Sion says:

    If there are any lawyers in the house, this is the judgement of the Inner House of the Court of Session, 11 September 2019 before Lords Carloway, Brodie and Drummond Young:

    In the reclaiming motion by

    JOANNA CHERRY QC MP and OTHERS

    Petitioners and Reclaimers
    against

    THE ADVOCATE GENERAL

    Respondent

    https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih49.pdf

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