James Cook @BBCJamesCook
THREAD I have been wading through the full judgment from Scotland's highest civil court, the Court of Session, on the prorogation of parliament this evening (with assistance, as you can see). Here are some points I think are interesting. #Prorogation #TheNine
^First, what is this all about? A group of parliamentarians led by @joannaccherry of the SNP wanted to stop the prorogation (suspension) of parliament, which has now taken effect, arguing that it was unlawfully designed to stymie parliamentary debate on Brexit.
As it happened the High Court in London has rejected a similar case but one argument made by the petitioners in Edinburgh (that is, Ms Cherry and co) was that Scotland (which has its own legal system pre-dating the 1707 union with England) had different law in this matter.^
^This was an appeal after a judgment in favour of the UK government by Lord Doherty (referred to here as the Lord Ordinary). An interesting argument by the petitioners suggested if the court couldn't intervene the "only option to prevent tyranny would be to 'take to the street'."
The petitioners cited examples from 1567, 1660 and 1669 (all before the 1707 union of the parliaments of Scotland and England) to make their case.^
And so to the decision. In the opinion of the presiding judge, indeed Scotland's senior judge, the Lord President, Lord Carloway, a prime minister asking a monarch to use her prerogative COULD be reviewed by the courts in certain circumstances.
"If the reasons for the decision were based upon legitimate political considerations, including a desire to see that Brexit occurs, they would not be challengeable. However, that is not the contention..." writes Lord Carloway.
Rather, the contention is that the prime minister did not provide the true reasons for prorogation. "The real reason, it is said, is to stymie Parliamentary scrutiny of Government action." In this, Lord Carloway effectively finds, Boris Johnson was not being truthful.
It's notable that Lord Carloway opines that this is not because of "any speciality of Scots constitutional law," but from applying "the principles of democracy and the rule of law", citing a case from the UK Supreme Court. With an appeal to the UKSC expected, that is interesting.
The Lord President goes on... "The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for Parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance..."
The judge summarises the reasons why he doesn't believe the prime minister. Among them: the “clandestine" manner of seeking prorogation; its "extraordinary length”; the lack of explanation to the court; the tenor both of the PM’s remarks to, and of the discussions in, cabinet.
Lord Carloway dismisses the claim that party conference season meant only a few extra days would be lost by prorogation, arguing that it would ordinarily be covered by a recess set by parliament itself not by prorogation. Full reasons here (from 53):
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The court, says Lord Carloway, "is not dictating the days on which Parliament should sit. That is a matter for Parliament to decide. It is merely holding that a particular attempt to restrict the available days is unlawful."
^Lord Carloway concludes "prorogation...is unlawful and thus
null and of no effect." As you can see I will have to grab a refill before I set out on the opinions of the other two judges. If anyone is interested?^
Hardly a clamour but I will continue with Lord Brodie.
Lord Brodie refers to arguments "both interesting and stirring about a particularly Scottish tradition of holding the Crown...to account" although the lawyer had not "actually identified any material differences between the applicable Scots law and the corresponding English law".
^Lord Brodie says he agrees with Lord Doherty that the Claim of Right Act 1689 (much discussed in this case) is too vague to provide a basis for overturning any particular prorogation of parliament.
This is the headline, which we already knew from the summary of the judgment, from Lord Brodie's opinion: the purpose of prorogation was to dodge parliamentary scrutiny and allow the government "to pursue a policy of no deal Brexit without further Parliamentary interference."
Part of Lord Brodie's reasoning: the PM's professed principal policy objective was Brexit by Hallowe'en "irrespective of the consequences of such a withdrawal" and a sitting parliament "presents the potential to interfere" with that. See point 89.^
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Lord Brodie says both the secrecy and the length of prorogation was significant as were Mr Johnson's cabinet discussions about the importance of "messaging".
^Lord Brodie says political manoeuvres are not necessarily justiciable but "when the manoeuvre is quite so blatantly designed 'to frustrate Parliament' at such a critical juncture in the history of the United Kingdom...the court may legitimately find it to be unlawful."
Interestingly Lord Brodie also makes his case by referring to a Supreme Court judgment, this one by the (now retired) Lord Sumption who, as it happens, has been on the airwaves this week arguing that these cases are political not justiciable.^
^Finally from Lord Brodie, he just thinks the government has gone too far here. "I see this as an egregious case," he opines.
OK. No wine left but here's Lord Drummond Young.^
Spoiler alert. He agrees with the other two.
Lord Drummond Young points out that government counsel acknowledged that there may be cases when prorogation of parliament was a matter for the courts.
The judge also makes the point that, in his view, the party conference issue is a red herring in assessing the length of prorogation as it would normally be dealt with by recess which could be revoked by parliament "at any time".
^"The effect of proroguing Parliament," writes Lord Drummond Young "is to prevent, or at least to limit severely, the ability of Parliament to perform its essential function of holding the executive to account."
Like his fellow judges, Lord Drummond Young is unimpressed by what he sees as a lack of credible explanation for prorogation from Downing Street, writing that "no attempt is made...to explain why a prorogation of five weeks is necessary at a time of acute national controversy."^
Lord Drummond Young goes on: "...the government, and the Prime Minister in particular, wished to restrict debate in Parliament for as long as possible..."
In conclusion, the judge writes, there was "not a proper purpose for proroguing Parliament."
Final points. It's my impression that Lord Drummond Young attaches more importance to 17th century law in this case than do his fellow judges. And he too quotes case law from the UK Supreme Court where this is all now heading. ENDS (having run out of wine quite some time ago).
threadreaderapp.com/thread/1172252249667592193.html
Thread reader version with extracts from the judgement.
If you read this, with the blog from Professor Mark Elliott, you can't help but lean towards the Supreme Court upholding the Scottish decision.
However they may take a completely different view yet.