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

1 2 3
    • Non-Brit

      Excellent link, thanks for sharing it.

      On a personal level, the “Britain” of the “home counties” has never been something I felt even remotely attached to. It is a completely alien world. I feel far more at home in continental Europe, even with language barriers. To be fair, I have never been to the home counties, though I have seen pictures of the area (it looks nothing like my home) and its culture and ill-gotten wealth have been dominant forces throughout my lifetime, impacting my local area and beyond, despite the geographical, economic and social distances which separate us.

      All my life I’ve wanted to leave Britain. Scottish independence was less about Scotiish nationalism for me, than it was about feeling occupied by “Britain”, which in reality meant England, because my country had no choice but to live with the consequences of decisions made down South which were at odds wth our own social values and culture. We simply don’t vote the same way here in Scotland as they do in England. Except for a brief period, nearly every Westminster government during my lifetime was voted into power by the English without us, and Scotland would have had very different governments and policies had we been an independent country. Devolution helps with this situation, but it’s not enough.

      Since the Brexit referendum, and more especially since the post-May extreme right took over the Tory party, I have felt almost a desparation for my country to get out of Britain. The current state of affairs feels unbearable. My worst fear is not the hardest of all Brexits – because I hope that would give Scotland the impetus it needs to become independent – but some kind of “compromise” that would allow the nations of the UK to blunder on “together” while leaving the EU and forming some Faustian trade pact with Trump’s USA.

      Worse still, I suppose, is the possibility that we do crash out of the EU with the very hardest of Brexits, but that Scotland then chickens out of another Indy ref, or, even worse again, Westminster refuses to “allow” us one, or refuses to recognise the result if it favours Scottish independence. That would be beyond irony, given the Brexiteers’ endless braying about the need to respect the “will of the people” (this, despite Brexit having such a slight majority), the virulent uptake of the word “traitor” to describe anyone with a different view, and the devil-may-care disregard by Southerners that it is only the *English* will that is being imposed on the rest of us.

      I also fear the creeping fascism in “Britain”, and the ominous sense that at some point in time it could cease to creep and start to leap. I’ve never felt so menaced by domestic politics, and that’s despite surviving Thatcher as a child.

  • Scots

    Better off just leaving the union then.

    The trouble is they would jump straight into the European Union
    It’s utterly retarded – but the Scots should have the option to do it

    They have the right to self determination.

    • Terry callachan

      Joining the EU should be a choice for people in Scotland
      If they didn’t like being in the EU and a majority voted to leave they could leave

      Britishness shows that Scotland doesn’t have a choice it voted by majority to remain in the EU but is being forced to leave

      Britishness shows that it was only because so many English people living in wales voted for brexit that a majority in wales are in favour of brexit , the majority of welsh people voted remain

      Britishness means a majority of English people voted for brexit but they also are happy for brexit to be forced on Scotland and Northern Ireland who voted by majority to remain

  • Courtenay Barnett

    Very interesting analysis. Seems to me that there is a lot of wisdom coming from Scotland. Recall the famous – Lord Mansfield, some 32 years as Chief Justice ( the longest severing Chief Justice ever in the United Kingdom).

    Another contribution: in a criminal case the verdict in England is either “Guilty” or “Not guilty”. Under Scots law, seems that they are perceptive, realistic and wise, in having an intermediate position of “Case not proven”.

    Since there will be a decision before an English Supreme Court – there is no room for any politically fair intermediate position.

    • N_

      The difference between “not proven” and “not guilty” has no practical legal effect and is just for show. If you are on a jury and everyone agrees that “guilty” is not the right verdict and you want to discuss which of the other two to return, just flip a coin because otherwise you’re wasting everyone’s time. The distinction is a complete waste of time because for a person to be found guilty the case against them must be proven. If it is not proven then they are not guilty. Choose whichever of those terms takes your fancy but in law they mean the same,

      I don’t like jury decisions in Scotland being by majority vote either.

      • N_

        For those who don’t know, for a jury to convict a defendant of a serious crime a simple majority of 8 out of 15 is required in Scotland and usually a supermajority of 10 out of 12 in England and Wales where there is no unanimity after some time (and if it’s not 10-2 in either direction, there can be a retrial). One area in which Scots law is far superior to English law is divorce.

      • Terry callachan

        The legal effect of not proven is that you are not guilty until proven
        To the accused the legal effect is that you do not go to prison
        That is without doubt a very profound legal effect Marxist

      • Lorna Campbell

        Just for show? Not proven is much closer to the actualite than not guilty. Only those involved directly know whether someone is guilty or not. The fact is that, if the evidence is not sufficient in a criminal case for a verdict of not guilty beyond reasonable doubt, then the accused may not have proven his case or he is not guilty. The Scottish verdict was, historically, closer to the actual fact of the case and in keeping with Roman Law and European Law.

  • Hatuey

    I may be guilty of taking this all too seriously. I think we all are since the length of the prorogation won’t matter much in the great scheme of things.

    Anyway, the Supreme Court, as I understand it, is not being asked to comment on which of the two divisional courts was correct in its judgement. It is being asked to consider whether prorogation is a political matter or not and, if the latter, subject to judicial authority.

    • N_

      Is that right? Did the government appeal against the Court of Session’s decision on the grounds that the lawfulness or otherwise of a prorogation is non-justiciable? I’ve not got into the ins and outs, assuming the proprogation for merely few days longer than it might otherwise be “granted” is largely part of the “clock” gameplan. But if it’s ruled non-justiciable, another reason might be for the executive to have the option of doing it again, perhaps for much longer or indefinitely.

      • Hatuey

        I’m not sure exactly what the overarching purpose of anyone involved is. I don’t think it’s necessarily a Scottish Courts v English Courts issue, though. It’s all kinda moot, if you ask me.

        I think your bias as someone who wants to stop Brexit shows though.

  • Vivian O'Blivion

    A trap is being laid by Cummings. After defeat at the High Court, Jolyon Maugham made an impassioned speech to the effect; “if a five week proroguation is legal then why not a five month proroguation?”. I thought it was a powerful argument.
    On Sunday, Johnson refused to rule out a second proroguation immediately after the debates specific to the Queen’s speech. This morning, Secretary of State for Northern Ireland, Julian Smith again refused to rule out this course of action. They’re trying to goad the Supreme Court into finding against HMG.
    Cummings calculates that the winning strategy is to prompt a “people v’s Parliament” GE. The greater the times that the “people’s Government” are seen to be “kicked in the teeth by the treacherous elite”, the better this strategy plays out for Cummings.
    The problem (one of the problems) is that an A50 extension will be required for a GE, and Johnson must be seen to be blame free in regard to a request for an A50 extension.
    The obvious route to an application for an A50 extension is to defeat Johnson in a Vote of No Confidence. This is entirely feasible, the problem is where to go from there. Thanks to Jo Swinson’s school of Wile E. Coyote strategy, an agreed caretaker Prime Minister and an agreed reason for applying for an extension (GE or Referendum?) will be nigh on impossible in the 14 days following a VoNC.
    Perhaps Joanna Cherry’s hairbrained letter from the Court of Session will come to Johnson’s rescue?

    • N_

      Eugenics Boy certainly wants that kind of GE, I agree. Also I imagine that some Trump guys are involved too. The campaign which has already started is very similar to his, mutatis mutandis.

      Paths to getting such a GE without an A50 extension include:

      1. Hold it before 31 October. Pass a short bill setting the date and amending the FTPA as required. Square it with Corbs.

      2. Fudge! Agree that Britain leaves the EU in theory on 31 Oct but there will be a period of a few weeks where all practical arrangements will continue to remain in place pending the GE. Don’t call this an A50 extension; call it something else. Think up a Latin-root “fancy” word for it. And as the Sun blames it all on the b*stards in Bruxelles and fancy-talking traitors at home, Eugenics Boy will have the election victory in the bag.

    • alwi

      re: “Jo Swinson’s school of Wile E. Coyote strategy”

      Is she a tory plant, or just unbelievably stupid?

      • Jimmeh

        She’s dim. She can’t understand the questions she’s being asked by interviewers – far less come up with good answers. She doesn’t even realise when she’s been skewered.

  • Antonym

    “Nations Unhappily Held Together “.

    Apt description of not only the UK but also of the EU. Who wants to leave the frying pan for the fire?

    • Laguerre

      The other members of the EU know on which side their bread is buttered. That’s why no defections. Britain, or rather England, is on its own and isolated. Brexiter fantasies are very bizarre.

    • Iain Stewart

      “Who wants to leave the frying pan for the fire?”
      Well, the leave Europe movements have all calmed down to near complete silence in the space of the last three years, including Hungary, Poland, Denmark, Five-star Italy and FN France. Maybe they have been discouraged by something going on elsewhere, whatever that could possibly be?

      • michael norton

        Yes Ian,
        the machinations of our members of parliament who are 75% for Remain in the E.U.
        are against and refuse to endorse the view of the people, this lesson is being learned by the people of Europe, you will not be able to Leave, so save your angst for something else, like football, rugby, golf or darts.
        There is little Democracy left, anywhere.

  • Sharp Ears

    The proceedings in the Supreme Court are being broadcast on the BBC News Channel 231 and intermittently on Sky News. Also via the Supreme Court website. https://www.supremecourt.uk/

    Lord Pannick is holding forth currently. Lady Hale intervenes occasionally as did Lord Hodge (no relation to the Dame afaik).

    Ms Miller is sitting behind listening to the dry stuff. Trust she is getting her money’s worth.

    • IrishU

      SE,

      I am most worried that I do not know enough about the Supreme Court Justices’ political views, especially in relation to Israel and the Middle East. Would it be possible for you to do some digging and unveil some pertinent associations?

      Perhaps one visited Israel once or is the great-aunt of someone who works for Goldman Sachs.

      Much obliged.

  • N_

    The “argument” that says Scotland is “de facto colonial” would apply equally well to England and, being obviously false, it need not delay us. It is a case of the intellect being dragged along by a chauvinistic chip on the shoulder. There are Scottish judges who have “trained and practised” their whole lives in the Scottish legal system and who are sitting on the British Supreme Court, and who will participate in making this afternoon’s decision on exactly the same basis as their English colleagues.

    If the prorogation is found to be unlawful in exactly one of the jurisdictions – let’s say the Scottish one – then it is ipso facto unlawful in the British jurisdiction, and the fact that it would be lawful under the other jurisdiction is irrelevant.

    A more interesting point, @Craig, goes back to what you wrote about in an earlier piece on the prorogation, namely the role of the monarch.

    Let’s assume the prorogation is found to be unlawful and let us now be blunt. If that is how things are, then the head of state [1] gave the okay to an unlawful act suggested by her advisers. She is responsible. That is what her job is. In any other country, if she had got that job for any other reason than who her father is, she would be forced to resign in ignominy.

    Windsors out! Down with the Kingdom!

    Note

    1) Some background. As well as being the head of state, the monarch is also in law the head of government and a member of the cabinet. (Is anyone sceptical about that? Look it up!) And the cabinet itself is a subcommittee of the Privy Council, which is an advisory body to the monarch. The Privy Council has a large staff called the Privy Council Office, which plays a coordinatory role between ministries. That role strangely duplicates one of the functions of the Cabinet Office. The reason for this is it serves as a conduit for royal family influence and intelligence gathering, (And there are other such conduits too.)

  • Alec

    Once again you rail against nations unhappily held together in the case of the United Kingdom which has been the least unhappy of unions for several hundred years whilst taking the opposite view of the EU. Remainers sow division in the more successful union to prevent the dissolution of the least successful. This I find irrational in the extreme. You appear to want the UK as a whole to stay in Europe but not be the UK anymore. Scotland has infinitely more in common with England than any part of the EU and hugely more to lose by separating from it than the EU. What is this terrible rage inside Remainers that sees Brussels as a better friend than it’s own country? Perhaps you will have your way and Scotland go independant. I suspect you will be horribly shocked when you find that Brussels doesn’t want you and will only take you as far more of a colony then England has ever made you.

    • N_

      There might be some sense in what you are saying, were it not for the fact that you seem to believe that many supporters of Scottish independence are primarily motivated by being fanatical “Remainers”, which is simply not the case. Leaving aside those who thump the table and talk about an iScotland “remaining” in the EU, some of the more intelligent independence supporters believe an iScotland should belong to the EU and others believe it should chum up with Norway, maybe in “Nopec”. In fact the most important country with which harmonious trade and other relations would have to be established would be rump Britain. There is no way that many Scots in Scotland would want a hard border with England, given the number who have lived and worked down south or who currently have family studying or working or otherwise living there. But as soon as the independence supporters admit that the most important country for iScotland to have good relations with would be rump Britain (the equivalent of which was kind of assumed by everybody in the last days of Czechoslovakia), then rather than winnning over the middle ground they would be more likely to induce people to wonder what on earth the point would be of independence in the first place. Hence they don’t say it, preferring to encourage chauvinism among people of low intelligence.

      • N_

        As for terrible rage, yes. “We love the EU” among many Scottish independence supporters is the political equivalent of “We support whoever’s playing against England”. Everyone knows it. Unadmitted gut stupid racism affects the intellects of probably the majority of independence supporters. I was kind of forgetting that, by focusing on what I took to be your belief that they are “Remainers” first, which they aren’t. The mentality is far closer to that of the English Brexiteer than to that of any “Remainer”.

        • Lorna Campbell

          The thing about people who insist that wanting independence is linked to dissing England at each and every point shows a lack of awareness about their own motives in wanting to keep us all together against the wishes of around half the Scottish population. Self-awareness is a requisite for intelligence, and British/English Nationalists tend to show a grave lack of that quality. Yes, it would be so much better if the Union had worked out, but for that to happen, the respect has to be a two-way process. When has it ever been that? And I mean, ever, in the sense of a thousand years and more of our mutual history? When has England ever treated Scotland with anything other than contempt and arrogance? When has England not put itself first, second and last – even when it had a population not so much bigger than ours? We might well be a chippy lot, but, by God, not for nothing.

    • Laguerre

      “Scotland has infinitely more in common with England than any part of the EU”

      I wouldn’t be sure; they’re very close to France.

      • Mist001

        “I wouldn’t be sure; they’re very close to France.”

        Maybe Scotland likes to think so but having lived in Marseille for the past 12 years, I can assure you that you would be shocked at the amount of people here who don’t know that Scotland is a country and they couldn’t point to it on a map. As far as the French are concerned, Scotland is simply the name of a rugby team.

        • Laguerre

          What you see in Marseille is not the same as you see in Paris, for obvious reasons. Kilts are often to be seen.

          • Mist001

            Maybe Scotland is very close to the North of France then but that’s not representative of the whole of France.

        • JOML

          Mist001
          “As far as the French are concerned, Scotland is simply the name of a rugby team.”

          That suggests Scotland really needs to get out of the UK, as your statement clearly suggests Scotland, as a nation, is being stifled.

          • Republicofscotland

            That’s why the parcel of rogues signed the illegal union documents in a cellar in Edinburgh, with baying mobs in the streets above not allowed a vote.

            The parcel of rogues were well paid (The Equivalent) to sell Scotland out. Some of the money was used to start up a bank RBS, which is still, run by a parcel of rogues.

            English spy Daniel Defoe, reported back to London, that the common man was outraged at the union being forced on Scotland.

          • Mist001

            Things are slowly changing now but it’s to do with the French education system. Even as little as 20 years ago, French school children were not taught about the United Kingdom. They were simply taught about a country called Great Britain (Grande Bretagne). The same applies to NI, hardly any French person that I’ve met even knows that NI exists. To them, it’s just a single place, Ireland. If you look for French maps of the UK on Google, even now you’ll see that most of the maps make no distinction between England, Scotland, NI and Wales. It’s simply two parts, Great Britain and Ireland.

          • Doghouse

            Mist001
            “If you look for French maps of the UK on Google, even now you’ll see that most of the maps make no distinction between England, Scotland, NI and Wales. It’s simply two parts, Great Britain and Ireland.”

            Who’d have thunk the French possessed an over abundance of common sense and would depict all the independence problems Britain/EU and Scotland/England/Wales in that little map of theirs? And who’d have thunk that not only common sense wise would it depict all the problems, but would contain all the solutions too!?

            Je serai un oncle de singe!!

          • Iain Stewart

            With rare exceptions (ie those who know me) no French person ever refers to anything other than Angleterre, of which he imagines Écosse to be some ill defined and less annoying region, like Irlande. Just as the URSS was never anything other than la Russie. Grande Bretagne and Royaume Uni are exclusive to diplomats.

        • Old Mark

          As far as the French are concerned, Scotland is simply the name of a rugby team.

          Thanks for that acerbic comment Mist001- it demonstrates that what Orwell wrote in The Lion And The Unicorn still holds a good deal of water-

          A Scotsman, for instance, does not thank you if you call him an Englishman…Even the differences between north and south England loom large in our own eyes. But somehow these differences fade away the moment that any two Britons are confronted by a European. It is very rare to meet a foreigner, other than an American, who can distinguish between English and Scots or even English and Irish.

          Although Orwell wrote this essay as a call to,arms against Hitler during WW2, it he’d had Mein Kampf to hand he would have known that AH himself makes exactly the same point inadvertently when, in praising Lloyd George’s oratory, he repeatedly refers to the Welsh Wizard as an Englishman!

          ScotNat talk of the Auld Alliance is essentially just so much sentimental bollocks.

    • Vivian O'Blivion

      My guess would be the UK leaves the EU without a deal in February 2020, Scotland with it. It is far from established that an independent Scotland would opt for full EU membership. “The” Customs union is an option. That debate has yet to begin. Independence has still to be won.
      The notion that No-deal is a fixed position is nonsense. The EU minus the UK is a market of 442 million as little as 27 miles from English Channel ports. There will be a deal to be negotiated after the U.K. departs the EU. When this eventually sinks in, some form of integration between the EU and the UK will emerge, call it Labour’s, “A” Customs union.
      In the medium term, Scotland in “The” Customs union and rUK in “A” Customs union should be manageable at Gretna and the Tweed.

      • Laguerre

        “When this eventually sinks in, some form of integration between the EU and the UK will emerge,”

        The failure to sink in is only among the Leaver public, the ones who believe every word in the Express, Mail and Telegraph about the sunny uplands once a ‘clean break’ is made. The EU has already prepared its position, which is that of the WA, and Remainers, I think for the most part, understand that a No-Deal Brexit is just the beginning of a prolonged period of torture, while some sort of arrangement is worked out, lasting possibly five to ten years. It’ll be easier for independent Scotland, as they are more realistic.

        • syntax_error

          “The failure to sink in is only among the Leaver public, the ones who believe every word in the Express, Mail and Telegraph about the sunny uplands once a ‘clean break’ is made.”

          But those Leaver types don’t represent us all. We’re traditionally a broad church from left to right. Anyone who disbelieves that, in my opinion, has fallen for a different form of propaganda. Do you need a list of respectable, left-wing socialists who have trouble giving the EU a vote of confidence?

    • kathy

      ” Scotland has infinitely more in common with England than any part of the EU and hugely more to lose by separating from it”

      I think that myth has been busted once and for all by Brexit. On your second point, Scotland will be a wealthy country with our abundance of natural resources such as water and oil – not to forget the “water of life”, whisky which is a good money spinner. England is the one who will be bankrupt after we leave.

  • Crispa

    Thank you for this insight into the historical equality of the respective legal systems, which I had not thought about before. However, my bet is on the Supreme Court upholding the English (and NI’s) verdicts and turning over the Scottish on the original grounds of the decision to prorogue being a political decision with motivation not being relevant. The main argument in a nutshell will be that the checks and balances of the British constitution already and always prevent excessive misuse of power, therefore should be left alone as far as the law is concerned. For example, to follow the Lord Pannick argument, if a government might seek to prorogue for 12 months just because it can, the outcome of that would be that the government would simply not be able to carry on its business of running the country, it would be unable to pass any laws, and it just would not happen. If, on the other hand, this proroguing is found to be unlawful it would mean any attempted proroguing would in future be open to legal challenge, effectively emasculating the legitimate authority of government, and that would be unacceptable also. I would like to be proved wrong but I would put my money on the status quo.

    • John2o2o

      Crispa, thank you for your thoughtful comment. But how does what you say here:

      “The main argument in a nutshell will be that the checks and balances of the British constitution already and always prevent excessive misuse of power, therefore should be left alone as far as the law is concerned. ”

      square with the treatment of Julian Assange, who it is widely believed is a political prisoner.

      In the Guardian the following was reported in May:

      “UN experts have called for Julian Assange to be released from prison and criticised the British government for breaching his human rights. The UN working group on arbitrary detention (WGAD) said it was deeply concerned by the “disproportionate sentence” imposed on Assange for violating the terms of his bail, which it described as a “minor violation”.”

      https://www.theguardian.com/media/2019/may/03/un-calls-for-julian-assanges-release-from-high-security-uk-jail

      In the case of Julian, the British government seems to be able to act with impunity. Where are the checks and balances on misuse of power in this case?

    • N_

      No British judge will go full-on postmodernist and use a twerpy phrase such as “always and already”.

      Your logic here is mightily confused. Your “example” (namely that non-court checks and balances would work in some other context) doesn’t suggest the court shouldn’t play a role in this case, or in some other bunch of contexts, and anyway the Supreme Court is part of the “system of checks and balances”. Nor does the example fit with the “on the other hand” (namely that if a court rules this prorogation unlawful then future prorogations could be challenged). Why shouldn’t they be? And the “on the other hand” is itself peculiar because I thought the court had already accepted that prorogations are open to challenge. I doubt the government will get an “everyone who isn’t the government can f*** off” decision today, but soon we shall find out.

      The way the word “political” is functioning at the Supreme Court and in the media today is wacko. But that’s par for the course in Britain. It amuses me to wonder how a British official might explain in French to a foreign colleague (or to himself if he had a brain) that this meeting is a policy one whereas that meeting is political.

  • eddie-g

    I think you’re correct that they will decide one court got it right and one did not. This is a British constitutional question, and whatever the Scottish and English legal systems’ historical differences, there is only one right answer.

    The constitutional position today, more or less, is that HM Government may act with full political discretion, provided it follows the law. If I had to place a bet, it would be that the court will recognize prorogation as a political function and not something judiciable. In a close second, the court might also agree with the Scottish decision that it is possible to prorogue parliament illegally, but they will not agree with the reasoning that absent evidence of legitimate intent, we should assume illegal intent. I don’t put high odds on another outcome.

    What may however be as meaningful is if the court affirms the “provided it follows the law” qualification on what the Government is permitted to do constitutionally. Parliament required the government to request an extension to Article 50, it will be very interesting to see if the court makes reference to this. Of course if they do, it will be oblique and highly probable that the media will under-report it, as it will be as important a comment as any ruling on the prorogation.

    • N_

      the court will recognize prorogation as a political function and not something judiciable

      I doubt they’ll say that. But soon we’ll find out.

      Until a few days ago I thought that no exercise of the royal prerogative (and prorogation is such) was subject to being overturned either by the legislature or the judiciary, but in fact this isn’t true and there are precedents for the exercise of the prerogative being justiciable. What should make prorogation exempt among all the other exercises of the prerogative?

      • eddie-g

        To be clear, one court has already said that.

        Exercise of the royal prerogative is justiciable to the extent that the exercise of it goes beyond what the constitution allows, which for better or worse gives the Supreme Court plenty of interpretive leeway in this case.

    • kathy

      I disagree. As I understand it, under the terms of the union, Scottish law will never be superseded by English law or the terms of the Union would be breached and therefore void.

    • Jimmeh

      “there is only one right answer”

      I think you’ve missed the point; with two legal systems, there can indeed be two right answers.

      I think the Supremes will probably decide that prorogation[1] is a political decision, and that courts should not interfere. But who cares what I think? We’ll all find out in the fullness of time.

      [1] This word is everywhere for the last month or so. As far as I can tell, “prorogue” in the sense of parliamentary sittings means exactly the same as “suspend” does. In both cases, the non-sitting of parliament is followed by a Queens Speech. In that respect, it differs from a “recess”, which is what happens during the conference season, or the Spring and Christmas holidays for that matter. Recesses are also different in that committees continue to sit, and bills-in-progress are not reset to zero. So why has the word “prorogue” become the trending lexicographic fashion among journos?

      It’s like the word “exponential”, which is suddenly everywhere – nothing increases rapidly any more. It always increases “exponentially”. I’m sure hardly any of the journalists (liberal arts graduates all of them) could explain the difference between an exponential function and a polynomial function. I assume they are just trying to prove they must be clever, because they have Big Words.

  • mark golding

    The prorogation of the ‘English’ Parliament was political, intended to choke off debate. Anyone who doubts this attempt to prevent scrutiny of the Executive is delusional, so blinded by political allegiance that they have become divorced from reality.

    England since the end of WWII Britain has become far removed from the principles of the liberal democracy that should prevail. Britain’s elite has followed the US Executive in that lies, deceit, and underhandedness are de rigeur, causing distress, forced expulsion, pain, and hardship. This is not the human condition. Brexit, when considered at a higher level, seems to be a purge of these gross violations by the moral sense of a nation. This central pillar of democracy and decency must be maintained and reinforced by putting an end to the Union, reforming the intelligence services and the abolition of the British monarchy in favour of a democratic republic.

    • N_

      @Mark – What do you think Britain was like prior to 1945 when there wasn’t even one person one vote for the House of Commons?

      • mark golding

        Thank-you N_ for opening that memory hole or that place where awkward or inconvenient information can be put…

        Yet it was the power of political advantage and also crucially accountability that propelled a shift towards freedom, equality, and justice. We are certainly better connected by our conscience and guilt stares us in the face if we bother to look for it.

        And looking the other way is why the war criminals still walk down the leafy countryside lanes and suburbs.

        A telegraphist, once wrote, ‘the wire has expunged the oblivion of massacres, famines and the use of concentration camps’ ; a message had just filtered down the wire that read, ‘“I hate Indians. They are a beastly people with a beastly religion. The famine was their own fault for breeding like rabbits.”

  • Sharp Ears

    The whole is another lawyers’ paradise, whatever the outcome. There are 11 judges sitting today and for another two days apparently.

    Wonder what the man in the street has to say about it?

    There is a queue forming!

    ‘Judges of the Supreme Court of the United Kingdom
    https://en.wikipedia.org/wiki/Judges_of_the_Supreme_Court_of_the_United_Kingdom
    The following people will be appointed as Justices of the Supreme Court of the United Kingdom, replacing Justices who reach the statutory retirement age: Lord Justice Hamblen (13th January 2020) Lord Justice Leggatt (21st April 2020) Professor Andrew Burrows QC (2nd June 2020)
    Appointer‎: ‎The Queen‎, on advice of the Prime Minister.
    Style‎: ‎The Right Honourable‎; Lord or Lady
    Salary‎: ‎£206,857 ‘

  • giyane

    Imho this is not a case of two nations unhappily held together but two ideologies. On the one hand the political, the colonisers, the wolves in sheep’s clothing who talk in English accents but whose hearts are loyal only to Israel, or Kurdish accents but are ascending the slippery pole of U.S. imperialism, prvin Scottish accents who need the trimmings of British failed colonialism.

    On the other hand are religious who love their Faith and detest Zionism, those who lovectruthcand detest Islamism , and those who love Christian social justice and detest Conservatism and all its works.

    Trying to dress up ERGism as radical reform is so thirty years ago. Why do they even pretend to have A Law? Dog eat dog is their law.

  • N_

    “Lord” Keen, the Scottish-educated Scottish barrister who is Minister for the Crown Dependencies (that’s REAL colonialism!) is representing the British government at the Supreme Court today. He has told the court that Parliament can only be recalled if the government asks for it to be.

    Really? Careful there. Why can’t the Supreme Court tell the government to “ask” the monarch to recall Parliament and “advise” her to do what they “ask”?

    Meanwhile, who has the Palace got in court? Someone should sneak in a camera 🙂

  • Grouser

    I travel in France quite a lot. I am frequently asked if I am English. When I say that I am Scottish there is always a big change in attitude. Not only do they know the difference, but the French seem to have a soft spot for Scotland, which is missing when they speak about England. Incidentally, the French that I speak to cannot believe how mad (their preferred word) the English are to get themselves into such a terrible mess over Brexit. They usually either know that 62% of voters in Scotland voted to Remain or when they are told about it they cannot believe that Scotland’s vote has been ignored.

    • Laguerre

      Tell that to Mist001 @16:01. He seems to think the French have never heard of Scotland apart from as a rugby team, from his viewpoint in Marseille, popularly known as the biggest Arab city in Europe. My personal experience in Paris, is that the French continue to have very warm feelings towards the Scots, and they’re always disappointed when they discover that I’m not Scottish.

      • Mist001

        Correction. I don’t ‘seem’ to think anything. I’m not a weekend visitor to Paris on the Eurostar. I’m telling you exactly how it is down here and I’ll tell you something else. EVERY immigrant from Algeria, Syria, the Middle East, wherever, KNOWS about Scotland, and are aware of at least part of Scottish culture (kilts, bagpipes and Rangers/Celtic). However, very few of them have heard of Edinburgh. They all know Glasgow though.

        I am specifically talking about White, Caucasian French people when I say that very few of them are aware of a place called Scotland which I think is mainly due to the reason I’ve explained above. Mind you, this isn’t a tourist hell hole like Paris. For the majority here, I’m the first and only Scots person that they’ve ever met and will ever be likely to meet.

        • Laguerre

          You sound like one of those Le Pen supporters N_ mentions just below. There are a lot round you.

          • Iain Stewart

            It might have been your bizarre “Caucasian French” expression.
            Anyway, you must have had some fascinating conversations, talking to every immigrant 🙂

          • Old Mark

            It might have been your bizarre “Caucasian French” expression.

            To a French resident such as Mist 001 this ‘expression’ is quite normal- Guadeloupe & Martinique are both completely French in how they are administered, the language spoken and so forth, and even Jean Marie le Pen had no quibble with this fact- despite most Martiniquans etc clearly not being ‘Caucasian French’.

    • N_

      cannot believe that Scotland’s vote has been ignored.

      Ask them whether they think the vote in the departments of Pas de Calais and Aisne in the 2017 French presidential election was “ignored” too.

      More voters in those two departments voted for Marine le Pen than for Emmanuel Macron in the run-off round. And those wicked colonialists from the rest of France just ignored them, installing Macron as President with complete disregard of their preferences. What a disgrace, eh?

    • Merkin Scot

      I lived in eastern Europe for a number of years in a flat with two French natives. They certainly know the difference between England and Scotland. There was a fair amount of pish written earlier on this thread by a couple of UKIP types.
      .
      “Plus ça change, plus c’est la même chose,” as the French say when discussing Perfidious Albion and Brexit.

  • Hatuey

    I heard some of Swinson’s speech. She wants to kill Brexit, save the sacred British Union, and perform some sort of unspecified magic towards saving the planet. All things that may impact negatively on the UK’s prosperous middle classes.

    There was no real mention of austerity, food banks, workers rights, war, or anything that impacts on the poor of the UK or the world, but I must admit that her speech still inspired me.

    I’m now 100% in favour of a hard Brexit, committed fully to Scottish independence and destroying the Union, and firmly opposed to environmentalism — actually, put me down as one of those climate change deniers.

    When the selfish middle classes of this country start acting in a socially responsible way, I might decide to act socially responsible myself. Between now and then I’m happy to watch the whole thing crash and burn.

    • Republicofscotland

      “and firmly opposed to environmentalism — actually, put me down as one of those climate change deniers.”

      Really?

      What about the 37 countries that have seen fast sea level rises and lost land.

      Or the Icelandic glacier all 38 miles of it that just melted into the ocean?

      https://www.ecowatch.com/sea-level-rise-countries-vulnerable-2602886224.html

      https://www.sciencealert.com/iceland-just-held-a-funeral-for-the-first-glacier-killed-by-climate-change

      As for Swinson, she’s a vile creature, whose party will not come to power, but they will if asked, do as Clegg did, and prop up the Tories after a GE.

      • Iain Stewart

        Rosco, you need to read between the lines of Hatuey’s comments without taking every word necessarily at face value.

        • Hatuey

          Happy to be taken seriously and at my word occasionally, Iain.

          To answer Rosco’s question, it’s my democratic right to be wrong.

          If scumbag lib-dem toffs can deny and turn a blind eye to reality, I can too. Where were their lofty principles when they went into coalition with the Tories and executed austerity, bombed Libya, shafted students? Then there was “the vow” which took lying in politics to a whole new low level.

          Screw them and their environment.

          • SA

            “If scumbag lib-dem toffs can deny and turn a blind eye to reality, I can too. “

            No. You are bigger than that. I find that one cannot descend into mud wrestling with such wreckers, they always win because they like wallowing in mud.

          • Iain Stewart

            “Screw them and their environment.”
            And they can take their lousy planet with them, too!

  • N_

    The BBC are reporting today’s hearing in the Supreme Court as if a reconvening of Parliament following an overturning of the prorogation is likely. I think they’re right that Boris Johnson will leave office if that happens. Who then would be caretaker PM? None of the chairs or deputy chairs of cabinet committees look as though they’ll be asked. Perhaps a former PM – Brown, Cameron, May? Or a law officer?

  • Gary

    I think you underestimate the power of ‘the fudge’ The Miller case is being appealed, by Miller. The Scottish case is being appealed by the government. I think that may be important in this case/cases. As they are concerned with law they may well find that rather than the differences in the law itself, the differences in how the cases were presented may be the key for a ‘unified’ outcome.

    For example, they may find that there is not enough evidence as presented in the Scottish case to find against it and simply find that Miller’s case was not heard due to a misunderstanding of English law. Because, as we know, Miller’s case was never heard, the judges simply decided it was not justiciable (despite this Boris et al have all said they ‘won’ this case when, in fact, it was never heard) This is probably the easiest way out of the ‘competing courts’ scenario and avoids preferring one legal system over another. They would be agreeing with an existing judgement (Scots) and hearing the Miler case for the first time.

    However, anything remotely connected with Brexit will, of course, break all existing rules and conventions and surprise us all. I COULD see them agreeing with BOTH courts. In that case, the only court issuing a judgement on the case would be the one that the government would have to comply with. If it WAS correct under English law NOT to hear the case but WAS correct under Scots law then there has only been ONE judgement ie the Scots judgement with which to comply. From my limited knowledge (I used to prepare cases for court and action outcomes for the Civil Service) that is correct, if not somewhat confusing.

    But then, as much as they will listen to the points of law brought before them, I fear that their innate personal biases and preferences will carry this case. They are only human and they will have an opinion on Boris, Brexit and Scotland that will colour their views. I’d LOVE to be wrong about that…

  • Gavin C Barrie

    The Supreme Court judges are in a real fix no doubt about that:-

    Scots and English legal systems have equal status , and yet 4(?) Scots judges to 7 (?) English judges.Doesn’t seem like an even playing field?
    Professional impartiality?The case before them will potentially lead to the end of the UK. Quite a dilemma individually to determine, with no leaning towards your nationality.Temerity of the Scottish legal system was cited above, so little prospect of the English population amicably accepting a ruling in favour of the Scottish legal findings. And yet,who, English, Welsh N Irish or Scots would wish to live in a country where a Prime Minister could be empowered to close down the parliament?

    I want Scotland to be independent. I’m fully relaxed of the economics – it is my professional background.

    I want Scotland disassociated from a legal “system” that is able to deal as it has, with Julian Assange. A pliable legal system that serves it’s establishment. And so regrettably I expect a Supreme Court ruling in favour of Boris Johnson.

  • Ralph

    “The legal systems of England and of Scotland have equal status in the Act of Union” – I don’t know how Scotland can be equal to England in a matter like this, especially since the population of England is about ten times more than Scotland, or one Scots vote is worth 10 English ones?

    • Gavin C Barrie

      @ Ralph – England is 10 times the population of Scotland, is that your criteria for governance? And I suggest you chart the growth in populations of Scotland and England since the Act of Union. Indeed just going back to the 1900’s indicates a trend. And ponder why.

      And note a small diamond is worth lots more than a bag of coal nuggets.

      • Ralph

        You try and define quality instead, there is no way you or anyone else can do it, and given the numbers, and on the balance of probabilities, England would still come out ahead.
        You would also have to include in scotland’s side the shits bliar and brown, which should be enough to destroy your argument on its own.

  • fwl

    Scotland a colony! You only have to read the leading work on Sikunder Burnes by our esteemed historian C Murray to appreciate how fundamental Scots were in the development of the empire and colonies.

  • fwl

    On the Supreme Court case the Lords’ question as to whether the Government might re-prorogue (sounds unpleasant) if the Court finds the current action unlawful is interesting.

    The Supreme Court if it decides the act is unlawful can quash it, but the executive might then do the same act, but this time for another reason and suggest that the new reason is lawful.

    The Lords are wise to this hence the question, which Lord Keen could not answer. This is therefore one of their concerns.

    If they allow this to happen for 6 weeks then what is to say it can’t happen again for longer periods – what then?

    So from what magic hat are they to find their authority to challenge what has been done and if so what limits are they to put on their power so that they are not forever invited to nose around in the mystery between Crown and PM or be accused of inventing new constitutional powers.

    The Government argued that Parliament is Sovereign and that Parliament (the rebel alliance) could have prevented proroguing if they had called a vote of no confidence or if they had thought to add an amendment to the July Act dealing with NI supervision.

    This might allow the SC a way out if they want to keep out because they can say that Parliament still has a method of policing itself – but it screwed it up this time.

    At the same time they could suggest that they might intervene in the future if a majority government were to prorogue for naked political reasons.

    At present we now have a minority government who managed to prorogue even though the House had the number and means to stop it. Therefore the Court can say it is not required to assist. Parliament had the means and the numbers to stop this but did not do so.

    However, if in future there is a majority government seeking to prorogue for political reasons then yes step in and quash.

    Anyway two more days of argument to go and no doubt the Lords may have their own original thoughts too.

    • jake

      “At the same time they could suggest that they might intervene in the future if a majority government were to prorogue for naked political reasons.”
      My reading of the Scottish court judgement was that prorogation was OK and that even a political motivation was OK…where they had the problem was with the pork pies being fed to the queen. My point is that I don’t see the Supreme Court going further than they need to and the question of political reasons, naked or otherwise, isn’t something that they’ll see as anything to do with them.

      • fwl

        Wasn’t the actual advice given by Mogg and Co as Privy Counsellors and if so (a) why wasn’t David Pannick asking for their statements and (b) isn’t their advice privileged. Have the Courts delved into PC or PM advice to the Crown in the past?

  • giyane

    The catastrophic effect of allowing the executive to ignore parliament was seen in the Iraq War of 2003 which resulted in the 2010 Cameron policy of sub contracting colonial destruction to Islamist criminals who were defeated by Russia in 2017.

    Credit for putting right the catastrophic decisions of Blair and subsequently Cameron can be given to Putin. Boris Johnson is the person least likely to learn these vital lessons of recent history and he is about to subject us to an economic shock without parliamentary approval which is reckless in the extreme.

    I would expect the judiciary to unite in opposition to the Cummings reckless plan.
    Johnson is not trusted and he has clearly bribed the Queen’s advisors with a share in the profits from the ERG crazy scheme.

    The Scottish Law only foresees a threat from Royal power but in a global age a few dogs in the casino of the City of London have more power than any king or queen.

    Are their Lordships paid to ignore reality?
    No. Judges are hands on practitioners in the blood and guts of life. I think they will give Bullingdon boys short shrift and parliament will be reconvened.

  • Mark Russell

    Four men – friends from schooldays – have rented a large apartment in a housing collective for over two decades. Charles, Hamish, David and Mick share the tenancy on an equal basis, but Charles – with the highest income has contributed generously to their living expenses over the years – yet always respected the views of the others in matters of any importance concerning their home. They’d had their share of disputes with neighbours – and each other – in the past, but in recent years relationships had improved greatly and life was good. Until Charles falls out with the landlord.
    It had been simmering for years, then one day, Charles announces that he’s had enough and tells the other three that he wants to move. David says ok – but Hamish and Mick are reluctant. They like the landlord and the neighbours too – so they say no. They drink wine and argue some more then Charles tosses a coin – and it falls in his favour.
    Next morning he serves a notice to quit on the landlord – and tells the other three afterwards. Major argument. Bigger fallout. They have 30 days to find another place – and the landlord reminds them that they also have to pay a termination fee and the full-year maintenance charge for the residents dispute intensifies.
    The following week, Hamish and Mick tell Charles they are staying put. They’ve spoken to the landlord and he’s very happy to let them have the flat on their own – without incurring any new tenancy fees – and they’ve also spoken with their neighbours who all urged them to stay too. Even David is having second thoughts.
    Charles explodes, packs a suitcase and tells them he’s off on holiday and can’t be contacted for the next two weeks. He’s not due to return until the night before his notice to quit expires. He still hasn’t found a new place to live – but he tells the other three that they will be moving out, no matter what – and he wants them to pay a couple of grand up front to help him find a new place for them when he gets back.
    What do you think happens?
    The reality of Brexit is that the United Kingdom ends as a political and economic union of nations. England voted overwhelmingly to leave and that must be delivered, but the other three nations have to decide now where their future sovereignty lies. Regardless, they should not in any way seek to impair England’s journey. It’s not politicians at Westminster who will determine the future – but the people of the British Isles in their respective countries. Westminster is no longer fit for purpose. Without the UK it is irrelevant. That is the reality outside the bubble.

    I think the lads will manage fine. Mick’s been seeing an old girlfriend again and is thinking about asking her to move in when Charles leaves. Most things make sense when you open your eyes..

    • fwl

      I was stuck by the metaphorical landlord. Do you see the EU as our landlord? How did that landlord get control in the first place? No one wonder Charles wanted out. Not because he was underwriting the others, but because this third party had come along and become their landlord.

    • Squeeth

      “the other three nations have to decide now where their future (sic) sovereignty lies.”

      That’s always been the problem, the population of England have always been disenfranchised over questions about the nature of the UK, for an obvious reason.

    • Hatuey

      The reality is that Charles is a sociopathic paedo with a predilection for massacring innocent coloured people, especially if there’s a few quid in it for him. Nobody in the neighbourhood can stand Charles and they wonder why anyone would stay with such a vile racist weirdo. Of course, what they don’t know is that he’s basically holding his “friends” hostage.

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