Carloway, Brodie and Drummond
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.
“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.
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.