Why the Supreme Court must support Scottish judges against the end of democracy

Consider this:

If the executive can suspend parliament whenever it likes, for purely political reasons (it doesn’t like what parliament is doing), then the executive have the power to end our parliamentary democracy.
First it is for a few weeks, and then it is for a few years.
It is simply nonsense to say that this is a political matter, because politics has been shut down.
Parliament cannot even vote no confidence in the Executive because parliament has been suspended.
The argument that the law should not get involved in political matters does not wash on this occasion.

That’s the view of Oxford Emeritus Professor Simon Wren-Lewis, who wants to see the Supreme Court support the Scottish court in ruling Boris Johnson’s prorogation of Parliament unlawful.

He believes Boris Johnson has shut down parliament for his own political reasons, and the only institution that can stop it – and stop a Prime Minister doing it in the future – is the UK’s legal system.

He says it is clear that Parliament was shut down for political reasons because shutting down parliament for five weeks is not necessary before a Queen’s Speech.

And the excuse that Parliament normally suspends itself for the party conference season isn’t good because Parliament was thinking of not doing so because of the gravity of the current situation, and also it was suspended well before that season.

It’s a clear argument that makes mincemeat out of Dictator Johnson’s claims. But will the Supreme Court accept it?

Source: mainly macro: Why the Supreme Court must protect our constitution

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No Comments

  1. trev September 15, 2019 at 1:13 pm - Reply

    If the Supreme Court doesn’t accept that learned view then it makes a mockery of the Law and of Democracy itself, and paves the road to Tyranny (much as Plato once predicted).

  2. Zippi September 15, 2019 at 1:58 pm - Reply

    It is just my opinion but I think that Mr. Johnson may have prorogued Parliament early and for long in order to kill two bird with one stone. I do believe that he was not going to prorogue Parliament early but the threat of opposition Parties plotting to “sabotage” his negotiating strategy may have force him to act. I believe, firmly, that had this not happened, he would not have sought to prorogue Parliament this early. I am not excusing him, merely offering a reason; there seems to have been a concerted effort to get rid of him, much like with Jeremy Corbyn, before he had had the chance to do anything.
    We must also look at this in the context of history and all other prorogations and what was the intention behind them and what was the outcome, the consequence. I am not claiming, nor pretending to know but I am resisting a knee jerk reaction to something that we don’t like, without understanding it in historical context. If I have learnt nothing, in recent times, it is that our politics are filled with unsavoury, dishonest and dishonorable characters, people who will lie, smear, tell half truths, untruths, pervert, all to serve their own ambition, not those who elected them to do their bidding. In this regard, Boris Johnson is unremarkable. I have yet to see evidence to support that what he has done, no matter how unpalatable, is any different.

    • Mike Sivier September 15, 2019 at 7:50 pm - Reply

      Prorogation is a regular, and habitual, part of the Parliamentary calendar. Parliament is prorogue at the end of each Parliamentary session – usually for only a few days before Parliament re-convenes for the Queen’s Speech and the opening of a new session. The current prorogation is wildly irregular because it is for a period around seven times longer than usual, and at a time when a huge part of Parliament’s business was unfinished.

      • Zippi September 15, 2019 at 9:43 pm - Reply

        I am aware that this particular prorogation is extraordinary, when compared to others in the last several decades, even that of John Major but what about others? This is why I am not going to form any conclusion, because I feel that I don’t have enough information, regardless of my personal feelings about it. Is this prorogation unique? Have there been any others like it, if so how many and for what reason? People are talking about codifying and effectively putting our Constitution onto tablets of stone but if this latest prorogation is not unique, is there a need, or it is merely a fierce reaction to something that we do not like? In order to find out, we must look back not over the last several decades but centuries.
        From 1900 to 1930, the median average length of prorogation was 54 days. This falls well short of that. One article that I have read, in trying to find A.V. Dicey’s opinion on the matter, suggests that the Fixed term Parliament Act is to blame; it was suggested that, upon the reconvening of Parliament, this Act be abolished.
        I think that what lies at the heart of this is not whether, or not Mr. Johnson was right to prorogue Parliament but whether, or not he did so by honest means. From what else I have read, it really is not the business of the courts, “as the distinguished judge Lord Sumption reminded us, ‘The Supreme Court held in the Gina Miller case in 2017 that a constitutional convention is not justiciable in the courts.’”
        Google “A.V. Dicey on prorogation” and see what you find. I’m not pretending to know what’s what, for both £aw and Parliamentary Constitution are not my field, I’m sitting this one out and will await the decision of the Supreme Court. All that I will say is that, if the Court findsa against Prime Minister Johnson, I can’t see how he can remain in office but for the Fixed Term Parliament Act, which, as I have been led to understand, does not require him to resign, even if he loses the confidence of the House! This, it would seem, is an unintended consequence of the Act.

        • Mike Sivier September 17, 2019 at 12:33 am - Reply

          If you check the dates of the prorogations prior to 1930, you’ll see that many of them happened near Christmas or summer recesses, and include the lengths of those scheduled breaks as well.

          And if I were you, I would not assume that not being required to resign despite losing the confidence of the House of Commons is an unintended consequence of the Fixed-Term Parliaments Act!

      • Zippi September 17, 2019 at 1:23 am - Reply

        Not unintended?

        • Mike Sivier September 17, 2019 at 12:58 pm - Reply

          No – unfinished. Brexit was supposed to happen in the last Parliamentary session.

  3. Zippi September 15, 2019 at 2:00 pm - Reply

    P.S. My understanding is that the Court Of Session did not find that the prorogation, in itself, was wrong but the way in which Boris Johnson set about achieving it.

  4. J Edington September 15, 2019 at 3:09 pm - Reply

    I would like to see the Supreme Court (that I don’t actually recognise) back the Scottish Courts. I am more than a bit dubious of it happening, however, since the whole raison d’etre of the Supreme Court, based on English Law, was to enable over-riding of Scottish Law, despite the Treaty Of Union saying both country’s laws would be respected.

    • Barry September 17, 2019 at 8:39 am - Reply

      Whether you recognise the Supreme Court of Great Britain and Northern Ireland is irrelevant, Scottish law is based on British law as is the American constitution and most of the worlds legal systems, so the English law you deride is accepted by most.

  5. Foggy September 15, 2019 at 4:49 pm - Reply

    I can’t see it happening. Some Supreme court judges are members of the Privy Council- will those judges excuse themselves in this case ?


    • Zippi September 17, 2019 at 1:27 am - Reply

      One would think that they would have to declare a conflict of interest, if that be the case. How can they be seen to be impartial, otherwise?

  6. Gary September 15, 2019 at 10:40 pm - Reply

    What doesn’t seem to be made clear, here or anywhere else, is WHY this is going to the Supreme Court.

    Until only a few years ago that court didn’t exist and, if you wanted to appeal anything already found in the Court of Session (after an appeal as in this case) you would have had to go to The House of Lords. Had the Supreme Court not been brought into existence then parliament would have had to have been recalled if only to hear this case about it’s very prorogation!

    But that isn’t really what I mean in this case. We need to remember that a judgement has been made and that it is the government that is appealing this judgement and seeking to overturn it. Therefore, as with ANY appeal it is THEY who must prove their case, not Joanna Cherry etc. Although not a criminal case and therefore it is only a ‘balance of probability’ still, the burden of proof lies with the government now, not Cherry. Thus making things somewhat harder for them (govt)

    Boris has been keen to say how an ‘English Court’ found in their favour when, in fact, it felt it should not consider the case and so no judgement was given. He then made out that Scottish Courts would naturally be biased against him. I believe this is the first time a PM has been so brazenly anti-Scottish in my living memory, usually that kind off rhetoric is left to backbenchers (who are never reprimanded for it) To see a PM behave SO badly is worrying. No respect for parliament, no respect for the law, no respect for the judiciary. Even the most ardent Brexiteer SHOULD be worried. But it’s very difficult to see bias when it’s not aimed at you, isn’t it?

  7. Barry September 17, 2019 at 8:35 am - Reply

    Given that parliament was going into recess due to party conferences and had been agreed to by all parties in july you May have noticed the seat squatters in the Lib Dem one this week and prorogument is just ending a parliamentary session and a regular occurance all this faux outrage is pitiful

    • Mike Sivier September 17, 2019 at 12:55 pm - Reply

      Rubbish. You know perfectly well it was intended to silence Parliament – which was planning to sit throughout what would otherwise have been the recess for party conferences in order to get Brexit sorted.

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