Scottish court throws down another obstacle to no-deal Brexit, setting up possible constitutional crisis

Britain's Prime Minister Boris Johnson visits the NLV Pharos, a lighthouse tender moored on the river Thames, to mark London International Shipping Week in London, Thursday, Sept. 12, 2019. (Daniel Leal-Olivas/Pool photo via AP)

With an explosive, unanimous verdict that could have far-reaching ramifications, three senior judges in Scotland’s highest civil court ruled on Sept. 11 that the British government’s suspension of Parliament had been “improper and unlawful.” Protesters had filled the streets of over 80 towns and cities across the United Kingdom since plans for the long-rumored five-week prorogation of Parliament was confirmed, yet the suspension went through in the wee hours of Tuesday morning Sept 10 amid extraordinary and unprecedented scenes in the House of Commons. In the chamber, defiant Scots and Welsh members of Parliament sang impromptu national ballads, while Labour members struck up their party anthem, “The Red Flag.”

Less than two days later, the court in Edinburgh issued its earthquake verdict. Now the courts may prove to have succeeded where the street protests failed.

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The courts may prove to have succeeded where the street protests failed.

On Wednesday morning, gasps followed the court’s ruling that Prime Minister Boris Johnson’s request for a suspension had the “improper purpose of stymieing Parliament.” Furthermore, the ruling implied that he had misled the queen when his envoys asked her to suspend Parliament. One interpretation of those events that spread quickly around popular U.K. online forums is that Mr. Johnson had therefore induced the monarch to act unlawfully.

Later on the same day, the government reluctantly released some secret details of its “planning assumptions” in the event of a no-deal Brexit, drawn from a strategy outline known as the “Yellowhammer” papers. The Commons had voted to force this disclosure on the last evening before prorogation.

Interruption to medicine supplies and public disorder on Britain’s streets are among its “worst case” predictions, for which government staff have been secretly preparing; food and fuel shortages feature prominently on these lists too. The government admitted to having known about likely price rises for food and fuel, which will "disproportionately" affect poorer people and families. After years of austerity budgets, many are already struggling as some in low-paid work have had to resort to the U.K.’s proliferating network of charity food banks.

At stake is social cohesion and indeed social justice in the United Kingdom.

At stake is social cohesion and indeed social justice in the United Kingdom. Law and order suddenly feels precarious. Conservative Party lawmakers have publicly attacked the judges; one senior Tory—Kwasi Kwarteng—went on national television saying that he did not personally believe the judges were politically biased but claiming, without evidence, that “many people” up and down the country were saying that. Such polarization is rapidly becoming the new normal.

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Downing Street sources began immediately to leak, in time for the lunchtime news shows, the suggestion that activists had gone to the Scottish court because they would find a more anti-Brexit view there than in London. The unmistakable hint was that the Scottish court was less competent, or, again, politically motivated in its decisions.

Almost two-thirds of Scottish votes in the 2016 referendum had rejected Brexit. A senior, influential trade union leader, Len McCluskey, mused about conducting a citizen’s arrest for Prime Minister Johnson. After the rhetorical fracas, the attorney general was forced to issue a statement of the government’s highest regard for the impartiality of the bench; in the words of a Downing Street spokesperson, “We have absolute respect for the independence of the judiciary.”

A cross-party group of members of Parliament, led by the Scottish National Party’s Joanna Cherry, an eminent lawyer, had brought the case against prorogation to the Scottish court. Lord Carloway, Scotland’s most senior judge, wrote that if there was an intention to “stymie” [sic] Parliament, then the advice given by the prime minister to the monarch was illegal; the court then made the factual judgment that the intention had indeed been to stymie Parliament. The panel of three Scottish judges cited as evidence that the length of the requested prorogation (Sept. 9 through Oct. 14) was much greater than required for the stated purpose (the compilation of new legislative business for the Commons) and declared that documentary evidence supported that view.

Opponents to the prorogation of Parliament claim that the real reason for this highly unusual action was to allow the increasingly hard-right Conservative government to push through a hard, “no deal” exit from the European Union without interference from British M.P.s. The spin from Mr. Johnson was that this lengthy suspension was needed to prepare a new legislative program for the upcoming term.

Next to nobody bought that story. But Parliament managed to regain some ground just before the prorogation took effect by passing legislation to prevent a no-deal exit on Oct. 31. Mr. Johnson appeared to suggest on Sept. 9 that he might seek to bypass that piece of law.

The High Court in London last week rejected a similar case against the government as “not judiciable,” ruling that the legitimacy of Mr. Johnson’s prorogation was a political, not a legal matter. This week the Edinburgh court demurred from this view, and now next Tuesday, the U.K. Supreme Court will adjudicate the case.

So here are two nations, each with a distinct and separate legal system, in which senior courts have reached opposite conclusions. For the Supreme Court to find for the Scottish judges would be constitutionally significant. Traditionally, Scottish criminal cases are heard by the U.K. Supreme Court only if an appeal is made on human rights grounds. A key question here is if the Edinburgh court’s verdict is binding outside Scottish territory.

The Court of Session in Scotland, established in 1532 by an act of the pre-union Parliament of Scotland, is Scotland’s highest court. It predates the United Kingdom Supreme Court by 477 years. This is a reminder that, constitutionally, the United Kingdom is a union, not a unitary state; distinct traditions continue in a number of areas of life, notably in the legal systems. Some suggest that the London Supreme Court should not overturn the Scottish court’s verdict. Other voices, online and on the streets of London, anticipate Tuesday’s verdict putting the Scots in their rightful place.

A constitutional crisis has emerged in this deeply conflicted kingdom. What is that cracking sound you can hear? It could be the 1707 Act of Union, uniting the parliaments of England and Scotland, disintegrating in our time.

What is the uproar of furious voices in the streets? It could be the anger in our divided country spilling over, from those who feel Brexit is being stolen from them or from those worried over in the Yellowhammer papers, engaging in civil disturbance and even food riots.

Already there are wounds being inflicted on U.K. unity that will take decades to heal. It is time, unless it is already too late, for words of justice and peace. But who will speak them?

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arthur mccaffrey
2 months 3 weeks ago

Go Scotland! Americans need to understand that Scotland has its own legal system, totally different from England, and has done so for centuries. Scottish Law is closer to the Napoleonic Code law of France, and involves interpretation of a constitution, closer to the American system, while English law is a Case Law, involving interpretation of precedents. It has been a long time since Scottish law has been invoked to settle a dispute in the UK parliament--which just goes to show how much political life has deteriorated in Parliament. Hope Scotland votes for independence and stays in Europe with which it has many old ties, known affectionately as the "Auld Alliance".

John Mack
2 months 3 weeks ago

Scotland has a separate university system too, much closer to the US system. And the established church is not a branch of the Anglican church. It is a Calvinist Prersbyterian church BUT it is also totally modern and allows for same sex marriage. The only obstacle to an independent Scotland's staying in the EU (it would have to reapply) would be Spain. Spain does not want to encourage its own regional independence movement, that of Catalonia which has a history and language distinct from Spain's. it is also the richest part of Spain, and the least locally corrupt.

Judith Jordan
2 months 3 weeks ago

arthur mccaffrey

I agree with everything you said. I would just remind some of the readers that even though the courts interpret the laws in the UK, there is no separation of powers as there is in the U. S. Parliament rules supreme. Parliament has absolute sovereignty and is supreme over all other government institutions, including the executive and judicial bodies.

LAUREN KENT
2 months 3 weeks ago

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sheila gray
2 months 3 weeks ago

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