Nations Unhappily Held Together 270


Media commentary on today’s appeals before the Supreme Court misses entirely the main point – that the highest courts of England and Wales, Scotland and Northern Ireland may each have been legally correct in their differing judgements, because each was judging according to a different legal system. I shall here leave Northern Ireland aside through my personal ignorance of its legal system, for which I apologise.

The legal systems of England and of Scotland have equal status in the Act of Union. The Supreme Court is required to decide on the Scottish (Joanna Cherry) case under Scots law, and required to decide on the English (Gina Miller) case under English law. The Scottish legal tradition has always emphasised the sovereignty of the people, a tradition that can be traced back through the Claim of Right to the Declaration of Arbroath, which four centuries before Hobbes and Locke made the contractual relationship between people and King explicit:

Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule.

It is the last phrase which stirs the blood and is most often repeated; but it is the first part, the claim to a contractual relationship between sovereign and subject, which was way in advance of any other recorded thinking in medieval Europe.

In its appeal today against the Scottish decision the UK government makes an astonishing admission of the Westminster view of Scotland. Notwithstanding the very specific provision of the Act of Union that the legal systems of Scotland and England are equal, the view taken by Boris Johnson’s government in their appeal is that “it would be most astonishingly inconvenient if, notwithstanding that England and Scotland have been united since 1707” the Scottish courts should have the temerity to question the Westminster parliament. There can seldom have been a clearer statement that No. 10 sees Scotland as having de facto colonial status.

Joanna Cherry responds to this point in her pleadings:

The answer to the appellant’s complaint that “it would be most astonishingly inconvenient if, notwithstanding that England and Scotland have been united since 1707” the UK Executive might be subject to greater scrutiny and more readily called to account before court based on the north bank of the Tweed as compared to those on its south bank is simply this: don’t be persuaded by complaints of inconvenient for the Executive that it is even open to this court in the exercise of its appellate jurisdiction to lower Scots law standards, in this regard, to that which is regarded as properly justiciable before the courts of England and Wales. Let English law, if it is deficient in this regard, be brought up to the standards by which the Executive is called to account under Scots law. That is what is required of this court, acting as a constitutional court for the Union as a whole.

In summary, against the foregoing background, the respondents reiterate as follows:
(1)
This court must take full and proper account of the Scottish constitutional tradition in deciding this appeal. There is no necessary correlation between Scots law and English law on the question of what prerogative powers the Executive may claim and how they
might lawfully be exercised.

(2)
Esto there be any difference between Scots law’s and English law’s respective understandings on the limitations which the law imposes on the Executive’s power to prorogue Parliament (which is not known and not admitted), that constitutional tradition within these islands and this Union polity which is more
limiting of the manner in which the Executive may exercise this power to prorogue Parliament is to be preferred, the better to ensure the Executive’s democratic and legal accountability for the use of this power and to prevent its abuse of that power in an unlawful attempt to shift the proper constitutional balance of power among the three pillars of State and allow it unconstitutionally to dominate and so govern without due and proper regard to, Parliament.

Cherry argues that the Scottish legal tradition should be preferred because holding the executive to account is a good thing for the UK as a whole. But this does not really address the question (which to be fair she could not as she is only a party to the Scottish case) that the English judgement in the Miller case might have been correct in English law.

It may seem strange that the same judges decide the Scottish case under Scottish law and the English case under English law, when in each case the panel will have members who trained and practised their whole lives in a different legal system. But that is precisely how British colonialism works. Exactly those same judges, in exactly the same building, but with the different title of “The Judicial Committee of the Privy Council” may hear appeals from British colonies under the legal system of that colony. So for example they may resolve a land dispute under the customary law on landholdings of the British Virgin Isles. It is a remarkable hangover from formal Empire that they remain the Supreme Court of even some independent Commonwealth countries.

The dilemma facing the Supreme Court today is Scotland’s de facto colonial status. This will necessitate a fudge. Despite the submission of Joanna Cherry, if the Court were to find that the English judgement were correct under English law and the Scottish judgement were correct under Scots law, the court would be most unlikely to prefer one over the other – in contravention of the Act of Union. My strong expectation therefore is that the Court will avoid this dilemma by a judgement that either the English judges or the Scottish judges were wrong under the terms their own law. That is to day they will find the English judges incorrectly interpreted English law or the Scottish judges incorrectly interpreted Scots law. They will thus avoid the dilemma of preferring one over the other.

I should be most surprised if the Establishment did not claim the Scottish judges did not understand Scots law, and prefer England and the Executive of Boris Johnson, because that is the Establishment. But Brexit and populism have made life much more difficult to predict.

The Supreme Court’s decisions will have a profound effect. Either the power of the judiciary will be reined back in Scotland and there will be a major boost in the power of the Executive, thus changing Scottish legal tradition. Or the power of the Executive will be reined back in England and there will be a major boost to judicial activism, changing English legal tradition. In either case, either England or Scotland will have the right to complain that its legal tradition is not being treated by the UK Supreme Court with the respect it is due under the Treaty of Union. Which is yet a further example of the increasing impossibility of continuing the unhappy and unequal union of countries now so politically and culturally different as England and Scotland.

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270 thoughts on “Nations Unhappily Held Together

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  • Vivian O'Blivion

    Headline on Axios is “Justin Trudeau’s political star fades”. Multiple instances of “blacking up” emerge. Those who live by the sword of wokeness die by the sword of wokeness. Is it possible to overdose on schadenfreude?

  • michael norton

    onlyhalfaloony
    “I think the reason Labour is doing badly is that they’re sabotaging themselves. I don’t think most voters actually care about the anti-semitism nonsense. Also, the party seems to be trying to be very vague about Brexit”

    Apparently the LibDem lot with their full on Remaniac stance have over-taken Labour in the pols.
    This will be greatly appreciated by Boris Johnson.
    Boris’s faction of the Tories is running in the very low 30s.
    Brexit party and UKIP add up to 15%
    With the Remainiac LibDem and don’t know Labour dithering into oblivion, Boris should sail through at the next General Election.

    Apparently Boris thinks the Supreme Court will find against him, he may have to go up to Scotland to beg the Queen to let him stand down.
    Who will the Queen pick to take his place Jo Swinson, Jeremy Corbyn or John Bercow?
    Not very inspiring.
    Surely there has to be a General Election before Christmas?

    • OnlyHalfALooney

      Politicians often forget the “stay at home” factor. I’ve seen this in the Dutch Socialist Party, which moved sharply towards the centre (despite my protests and eventual resignation). The party executive’s thinking was that the Socialist Party voters would have no other party to vote for, so they would vote for the SP regardless. What happened, of course, was that many SP voters with supposedly “nowhere else to go” simply didn’t vote at all (and some voted Geert Wilders because their votes had always been protest votes and Wilders had become the protest party).

      I think it is very hard to guess the outcome of a general election in the UK. Except perhaps that it will almost certainly be a hung parliament with no obvious workable coalition.

      In all honesty, I agree with the EU27 leaders who think it is now time to pull the plug and offer no new extension. There is no end in sight to the political chaos in the UK. Perhaps this would be best for the UK too.

  • michael norton

    “What was supposed to be a conference to showcase a party united behind new policies on education and health before a likely
    General Election instead opened amid bitterness and acrimony, with a defiant Watson still in place”
    https://www.theguardian.com/politics/2019/sep/21/labour-plunges-into-brexit-chaos
    “Supreme court poised to rule against Boris Johnson, say legal experts”

    Surely Boris can not hang on if the Supreme Court finds he has acted outside of the law?

  • N_

    The Declaration of Arbroath was c*ck. The idea of a contract between the monarch and either a bunch of great landowning nobles or “the people” is c*ck. Hobbes wrote mostly cr*p; and as for Locke, empiricism is stupid and often wicked. Liberalism is dung too. Am I getting through here?

    John Ball of the Lollards, writing in the same century in which a few rich guys signed the Treaty of Arbroath (doubtless using the equivalent of Mont Blanc pens), a century after their counterparts Down South had signed the equally cr*ppy Magna Carta, wrote much more usefully. So did the later Levellers and Ranters.

    “When Adam delved and Eve span, who was the gentleman?” There ain’t no nationalism or Braveheart-presaging in that!

    So, enough with the idea that the Arbroathers prefigured Hobbes and Locke. So what if they did, when that whole strand of thought is poop, and when you have much better thinkers (yeah, south of the border) from the 14th century to refer to.

    • Vivian O'Blivion

      Accepted, the notion that the Declaration of Arbroath is a precursor of modern democracy is as tenuous as the much vaunted claim that the Magna Carta can be so linked.
      Certainly there are more instances of agitation for democracy in England & Wales than there are in Scotland. Given demographics it would be surprising if this were not the case.
      Wat Tyler’s trust in officers of the King may appear naïve to us but this has to be considered taking into account levels of literacy, religious indoctrination and the linkage between God and King. On a tactical front, Tyler’s organisation of the revolt in the prevailing conditions is genius, comparable to General Giáp at Dien Bien Phu. Anyways, that all history, what about the here and now?
      Support for the monarchy in the UK is 77%, support for the monarchy in Scotland is 59% (YouGov, May 2018).
      No harm to the auld dear but when she finally snuffs it England will go full North Korea and you knows it.
      I suspect you witnessed firsthand the bemusement North of the border at the mass hysteria South of the border when Diana Spencer was killed.

      • Iain Stewart

        N– says “that whole strand of thought is poop”
        Now now, p**p, please!

        Vivian says “the notion that the Declaration of Arbroath is a precursor of modern democracy is as tenuous”
        As you will recall, it’s generally held up more as an early example of popular sovereignty since 1320 (as in King of “Scots”, not “Scotland”) which was the point Craig was making at the top of the page. And you won’t need to be reminded that even Sinn Féin used to be a monarchist party in its earlier days, so “support” for this constitutional detail can come and go.

  • michael norton

    Recent polling does suggest that Boris Johnson’s popularity with the public has only increased the more outrageous his behaviour in parliament. On Saturday, the latest poll for the Observer newspaper had Johnson 15 points clear of Labour leader Jeremy Corbyn.
    https://www.euronews.com/2019/09/23/could-britain-s-parliament-be-recalled

    Boris Johnson has the demeanor of a person unbothered by parliament or the courts, he only supps at the court of public oppinion.
    His brief is to the fourteen and a half million.

    • michael norton

      Another one bites the dust
      A North East Labour M.P has had the whip withdrawn and his party membership suspended after an allegation of sexual harassment.

      Mike Hill has been the M.P. for Hartlepool since the snap elections in 2017.

      Labour confirmed it was investigating an allegation of sexual harassment, but declined to go into lurid detail.
      https://www.bbc.co.uk/news/uk-england-tees-49795248

      bit unfortunate this popping up during Labour Party Conference time?

  • jenny

    and jeremy corbyn and the labour party has betrayed the english working class – northerners will never forgive him

  • Peter

    Craig,
    The final phrase of your article struck a chord, “countries now so politically and culturally different as England and Scotland.” Perhaps not for the most obvious of reasons.
    I recently spent a good part of the weekend travelling from south Wales to the NE of Scotland by rail. Although chaotic and disruptive on this particular occasion, the thing that stood out most was not the long suffering public at large, but a small minority at either end of the journey. The glory that is the travelling football supporter.
    Disembarking Swansea supporters at Cardiff Central, beers in hand, singing the usual abusive songs and being generally obnoxious. Similarly, entering the carriage at Montrose, fortunately only for one stop to Arbroath, a small band of similarly loud and aggravating men – for it is always men. One in particular, beer bottle in hand, seemed to think that if he shouted his political opinions loudly enough in another passengers face, and swore at them enough times, his argument would be better understood.
    I’m sure that many of your readers will relate to these situations as we tend to pass them off as just part of life, but why? Having heard these songs and tirades on many occasions the length of the UK, (they never differ), I have to question whether there is not a substantial minority, that are not culturally and politically different in any way at all.

    • michael norton

      SNP to back Jeremy Corbyn as care-taker-primeminister
      https://www.bbc.co.uk/news/uk-politics-49850484
      Wow this is BIG news.
      Party leader Ms.Nicola Sturgeon said she “agreed” installing the Labour leader or “someone else” after a vote of no confidence in Boris Johnson was the only” failsafe” option.

      She added that leaving the EU without a deal was a “terrible” idea.

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