Wise in their own sight (but not so wise in ours)

It doubtless seemed clever to challenge prorogation in Scotland; Scots law differs much from English and their chance of victory was higher. However I can think of two audiences in Scotland who may be unimpressed.

(South of the border there is a huge third audience whom I expect to be very unimpressed, but that is another matter.)

Firstly, a Scot does not need to be unusually honest or unusually lacking in nationalism to wonder how exactly to defend the Scottish supreme court’s ruling on the United Kingdom’s parliament. Every Scot can defend Scotland’s supreme court bullying the MSP’s who sit in the 11-times-over-budget building at the end of Edinburgh’s Royal Mile, but I’m not the only Scot who “couldna juist charge his memory” over why the propriety of a Westminster-affecting act is being ruled on by a provincial court. (There will be some justification, of course – but, in the words of “1066 and all that”, it will not be memorable.)

Secondly, her majesty is in Scotland for the summer, as usual. Also as usual, she has prorogued parliament. It is something she’s accustomed to doing every year at roughly this time for roughly this length of time – but which May did not advise her to do last year during a session whose length was unprecedented in three centuries.

Many a PM has noted how their meetings with the Queen, unlike their meetings with their loyal cabinet colleagues, do not leak. I have no idea whether, after Boris performed his constitutional duty to inform and advise her majesty of prorogation, she chose her constitutional duty of ‘warn’ instead of her constitutional duty of ‘advise’ – but it seems at first glance unlikely she ‘warned’ against something whose unprecedented feature was how long it had been since she’d last done it.

I therefore conjecture that her majesty may think the Scottish supreme court’s action ill-advised rather than her own.

As this ruling is mere PR skirmishing before the UK’s supreme court rules (IIUC, it has no actual effect in itself), it seems to me that the remoaners are again paying a high PR price for a stunt that will play well with themselves but with not so many beyond. The court that travestied historical custom to rule for Gina Miller in 2016 is not the strongest oak for leavers to lean against, but it is being said the case has “no hope” in English law. I hope that’s true, but I anyway think that remoaner lawfare victories have a cost they underestimate.

Updated: 12th September 2019 — 12:44 pm


  1. The EUrocrats are also wise in their own opinion: This spectator article has some relevant remarks.

  2. Niall is, I am sure, rather wise in his analysis.

    Nevertheless, I do wonder whether the English should not have some fun. I suggest this though I am extremely fond of Scotland, the Scottish people and all (well, nearly all – midges and heavy rain definitely excepted) things Scottish – and would not for a moment vote for such a thing.

    But might we English not have a referendum: for independence from the UK?

    [Aside: there are complexities with Wales, but I don’t think that really spoils the potential for fun.]

    Best regards

  3. Point of Order, M’Laird,

    Miller and Major (such a lovely couple, water finds its own level) did not bring their case in Scotland, the Scots case was brought by an English QC (private citizen) and 70+ MPs and Lords. The first instance decision was a model of clarity, the judge’s funereal solemnity (and more importantly) judgment a credit to Scots law. Read it here. http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

    The Scots Appeal only has brief reasons but is a stark contrast to the lower court’s decision. Guido has a link to a photo of the summary reasons, I’m sure a longer version will be provided with full reasons. https://order-order.com/2019/09/11/prorogation-ruled-unlawful-scottish-high-court-appeal/

    The English case (Major/Miller) was in the High Court (same level as the first Scots case) but had the three of the most senior judges of that court – the highest two (The Lord Chief Justice, the Master of the Rolls, and the President of the Family Division (who might not be third), and that heard the Major/Miller case. The judgment might yet be a song, called The Miller’s Lament, in A Flat Major. https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdf

    There is no way to reconcile the Scots appeal case with the English case, but the English and first Scots cases are readily reconciled. However, the Supreme Court is our first avowedly political court, so we shall see.

  4. Niall, Miller and Major’s didn’t challenge prorogration in Scotland: their case was heard in the English High Court, which found for the Government.

    The separate case in Scotland was brought by Joanna Cherry and others, and their reasoning (allegedly) was that at the time the High Court in England was closed for the summer holidays (or something?!)

    It’s interesting that the judgement under English Law is that there is precedent for prorogation for political ends, so what Boris did is legal. Whereas the judgement under Scots Law seems to be “we (the judges) don’t believe Boris”.

  5. Duncan S (11th September 2019 at 9:07 pm), many thanks for the correction (I have corrected my post). After the judgement, Gina Miller was jumping up and down telling MPs to go back to parliament and carry on, in a way that made me think she was involved and so the same group had backed both cases.

    I may also have been wrong in assuming that their justification for using the Scots court would be “not memorable”. If Cherry et al. really based themselves on “the right court is closed today, so will you please hear the case” and the judges said “fine” then I will remember that insolent absurdity!

    the judgement under Scots Law seems to be “we (the judges) don’t believe Boris”.

    The europhiliacs are all miffed today because someone suggested that people could think those Scottish judges were biased. 🙂

  6. Niall, pleae don’t doubt your assumption about the “not memorable” justifiation. I’m pretty sure, even if the High Court in London had been open for business, Scot Nat Cherry, et al, would still have run to the Court of Session in Scotland.

    Wasn’t the whole point of creating a Supreme Court (of the UK) to get over the problems created by the Court of Session in Scotland, and the High Court in England, having equal legal weight?

  7. Wasn’t the whole point of creating a Supreme Court (of the UK) to get over the problems created by the Court of Session in Scotland, and the High Court in England, having equal legal weight?

    I thought the whole point was that the Law Lords originally did that heavy lifting, but in the era of Blair and the “alt-Right On” and “Kewl Britannia” they were seen as out-of-date and fuddy-duddy, whereas “Supreme Court” sounds American and trendy, like being on Starsky & Hutch or something?

  8. I don’t buy this ‘High Court’ not open for business lark, there is always a vacation judge on duty, and English High Court judges used to be hauled out of bed in the wee hours to be pestered for injunctions, e.g. to stop a newspaper print run if it contained an egregious libel (OK, that was a while back) or to rule of someone dying or removing assets from the country etc.

    The High Court only listens to ‘urgent’ cases in August, see their press release. https://www.justice.gov.uk/courts/court-lists/list-cause-rolls2/summer-vacation-notice-2019.pdf

    BTW, a comment of mine from yesterday is still awaiting moderation. I only put in an English and a Scottish legal case and a Guido link.

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