In the light of the decision of a Scottish Court on the illegality of Boris Johnson's request to the Queen that Parliament be prorogued I have tweeted this comment:
Article 50 says ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements'.
Right now we're not following our constitutional requirements.
So hasn't Article 50 notice failed?
Or will it if Parliament is not recalled?
It's an open question, but one worth considering, I think.
I will be curious as to the EU's reaction. I suspect it could say we can't leave. It may not want to, but it might ask that the constitutional rules be followed. It may not be able to ignore the precedent to the contrary.
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Nothing has changed or will change until the Supreme Court issues its determination. The Scottish Court has decided that the advice to prorogue given to the Queen is justiciable and that the advice was unlawful. It is unlikely that the Supreme Court will decide that the advice is justiciable and even if it does it is even more unlikely that it will find the advice unlawful and direct the government to amend its advice to comply with whatever criteria of lawfulness the Supreme Court decides are appropriate.
Given that a general election is inevitable in the near future I suspect the Supreme Court will refrain making judicial determinations about the relationship between government and parliament and allow the matter to be settled in the court of public opinion.
So I think everyone should take a deep breath and relax a little.
And realise Scottish law differs
So that Parliament might be prorogued in England but not Scotland?
Maybe
That may be possible
It’s an interesting possibility
Constitutional law is different between the two countries
Paul, the case might go to the Supreme Court, but I would think that the government would be very very stupid (more so than it has already been) to let it do so – it will open a constitutional can of worms. And if the uk government challenges the Court of Session ruling, they have to be prepared to do it under Scottish law – which the Supreme Court can and will do. Any number of things could happen now though and they could have to rule under English law, or try and find a compromise, or any number of in-betweens. This is not a ruling about the relationship between government and parliament, but that the PM misled the Queen, a grave action, and that their real reasons for prorogation are not allowed under the constitution.
Things have already changed, and I would think the PM will recall parliament rather than risk litigation. If it does go to the Supreme Court and the action is found unlawful, I think there will be some serious turmoil.
Richard, (re my comment below) I misunderstood your reference to the EU ensuring constitutional matters are correct and that is written into the A50 agreement, you could be right that they may step in – if it can be proved – it will still need to go through the courts I would think. Not even constitutional lawyers understand the uk constitutions fully, so I doubt the EU will. the actual brexit vote, and the A50 notification, do not appear to be unconstitutional though, so the focus would have to be elsewhere, and could be argued either way no doubt. The government made a huge mistake with their gung-ho prorogation attempt, so they could have another one coming – their no-deal planning for instance, does not sound like something that benefits the uk, so you have to wonder if even suggesting no-deal is unlawful constitutionally (I would suggest it would have been through the courts already if it was – maybe).
Lets hope Article 50 is revoked. The government has no a leg to stand on if the other UK courts as well as Scotland’s declare the prorogation of Parliament illegal (which it is). It will require an extremely magical lawyer to dream up any defence for the government, Dominic Cummings must now have reached the end of his tether in this anti-democratic charade that the Tories are intent upon.
“Right now we’re not following our constitutional requirements.
So hasn’t Article 50 notice failed?”
I’m sure AP Herbert would have enjoyed all this no end. From the legal point of view at least.
In a word, no.
The Scottish Court decision is about prorogueation, nothing to do with Article 50, and is going to get overturned in the high court for sure anyway.
Article 50 just says that a country has a right to unilaterally withdraw from the Union – the constitutional requirements of doing so are up to the country itself. You are reading something into the process that isn’t there.
For sure?
You think those judges think that?
Why?
Please get your courts right. The Scottish Inner Court is Scotland’s highest court, higher than any English court. Its decision requires that the prorogation be ignored. It can only be overruled by the U.K. Supreme Court, which would have to rule that it got Scottish law wrong and until the SC rules, the Scottish Inner Court must be obeyed. It’s quite possible the Supreme Court will rule for the Government in the Miller case (English law) and against the government in the Cherry case (Scottish law). English law does not overrule Scottish law, the two exist side by side and the U.K. Parliament and U.K. government and U.K. Queen must obey both.
Agreed
Interesting question indeed Richard,,, and one that has the potential to be questioned in court.
BUT, the EU has nothing to do with our constitutional matters, they would not, and cannot, interfere with any member’s constitutional situation. That actually sounds like you’ve believed some of the brexit baloney, and believed the anti-EU rhetoric that has been bandied about for a while now. ‘Give us back our sovereignty!’ ,,, um, we never lost it?
The Article 50 revocation is entirely up to us, as has been tested in ECJ. Someone would have to make the case that brexit is against the constitution(s) of the U.K., and that would have to be referred by our own courts.
I realise now that ‘unlawful’ is different from ‘illegal’, and the prorogation is unlawful (civil case, any illegality as in criminal offence – I think anyway – would still need to be proven). Interestingly, Gina Millar has written to the government (that case at the High Court still needs to be resolved on appeal I think, though the first ruling is that they don’t believe it justiciable) to say they need to open parliament immediately.
I have read the summary of the Court of Session judgement – full ruling published on Friday I think – effectively saying that it is because there was no signed witness statement they’ve had to assume the PM etc were up to no good. Wow.
As also for your question above, the issue now lies in the differences in constitutional laws – between Scotland and England (and NI) – assuming this goes to the Supreme Court, who will have to sort it out. Constitutional lawyers are drooling at the prospect of having these matters tested.
Your go-to geek on (English) constitutional law is:
https://mobile.twitter.com/davidallengreen
I can recommend you listen to his interview on LBC (there is a link on his Twitter somewhere).
For Scottish constitutional law @PeatWorrier is yer man, but he appears to have gone off on holiday (after hurriedly writing an article for The National, which I haven’t read yet). Very different constitutions, so are they very incompatible? This might open the doors, certainly from a Scottish perspective, to have brexit deemed unlawful – but that may be too big a morass of unknowns when Scotland isn’t the member state that is exiting. Thorny. Fascinating.
I have to disagree
The EU must ensure we have acted constitutionally
That is within its remit
The EU doesn’t have any say over our constitution. If it does, then we are not an independent, self-governed nation any more and it is a great reason to leave.
But as I said, the Scottish judges ruled on prorogueation, which has nothing to do with article 50.
The EU has to ensure we are compliant with regard to our relationships to it
That does not in any way say what you imply
Michael G says:
“But as I said, the Scottish judges ruled on prorogueation, which has nothing to do with article 50.”
Not directly but you are ignoring the implication that follows from it ……. That’s what we’re musing about. You seem to be missing the point.
Also part of the Cherry case was the argument that Parliament has not yet agreed to exit the EU, just that the PM could start the (revocable) A50 process if she so chose, per Miller. And that because any form of exiting the EU impacts individuals’ rights, Parliamentary approval is required. Meaning that No Deal is only lawful if Parliament approves it. We have not yet heard what the Scottish Court ruled on this matter, but judging by a tweet today by @jolyonMaugham, we may hear tomorrow that such approval is required so that in its absence the PM would be legally required to revoke A50.
Nigel Goddard says:
“…..we may hear tomorrow […] the PM would be legally required to revoke A50.”
Well Boris did promise ‘No Deal’ by October 31st. I’m damn sure this is not what he had in mind, but knowing Boris’ record, if that’s what he’s forced to do, rather than resign, he’ll insist that’s what he was working towards all along. (And wasn’t he clever to make it happen in such a convoluted way….. 🙂 )
I’ve long said that to revoke A50 is (seem to me) the logical default position of not reaching an acceptable withdrawal agreement.
This is interesting from a QC,
“Dinah Rose QC
@DinahRoseQC
I’ve only seen a summary, so caveats apply, but the Scottish judgment seems based on ordinary public law principles, equally applicable in England. The judges have inferred that prorogation was imposed for an improper purpose, from the circs, and HMG’s failure to submit evidence.”
So, with caveats, it might be that there have been no particular Scottish law applied – have to wait until we read the full reasoning tomorrow. If this is the case, then the only difference between this and the English court was that the latter decided it wasn’t justiciable (wriggling out of it, and no wonder). English courts don’t sit in the summer apparently. Bizarre. But that’s why Scottish courts were first used.
In a way, it would be a shame that constitutional matters were not tested, but it would make Supreme Court decision easier, and against government more probable. Still, the Scottish court decision should have meant parliament being recalled, I would have thought.
I’ve already mentioned in another reply, that’s still in the ether (sorry Richard, I feel like I’m pestering you now, when you’ve said you are going to be incredibly busy over the next few days, and I’ve had time on my hands!), that I can see the point about a no-deal has the potential to be called unconstitutional – and that the EU will not accept it if so – but it still needs to be proved and evidence given to the EU before that would be the case.
Interesting timing for the publication of Yellowhammer eh? One could even say, a little bit obvious? Having already had the leaked documents, its impact is not what they hoped I should imagine. Ramp up the fear, control the population, flood social media with trolls, control the population. The government (state machinery) seems a lot more confident now (note we don’t hear so much about ‘fake news’ anymore?) regarding its control of social media,,, ah well, we’ll see. I am assuming the publication of yellowhammer is to try and overshadow the court cases on prorogation, but it could be something entirely different.
The whole prorogation thing has seemed a bizarre move to me – it just demonstrates how weak a position the government has – as well as all the unlawful parts that made it a huge risk. Really not the kind of government anyone wants, at any time.
Contrary says:
” English courts don’t sit in the summer apparently. Bizarre. ”
Not Bizarre exactly….. this is a hangover from the long standing tradition of the London ‘Season’. Starts with The Boat Race, and goes on through Wimbledon, and a Test match or two, and various other ‘Society’ events, deflowering of debutantes and than some sporting slaughter in the Highlands and finishes with….a race meeting, presumably Epsom (The Derby ?)…about as far ‘out of Town’ as ‘Society’, would dare to go without an armed escort. Stock brokers for their part would ‘sell in May and go away’ and return about October and do a spot of dealing before Christmas…..
https://www.thesloaney.com/the-season-a-guide-to-the-british-summer-social-season
In an earlier age of course, before public sanitation measures the royal court fled London, and went into the country to avoid plague season.
Which of these models of elite life of the capital is intended to be re-instated post-Brexit is a matter of conjecture.
Okay, more interesting things, I wasn’t aware that the case in Belfast was somewhat different:
“CJ McKinney
@mckinneytweets
The High Court in Belfast has rejected a Brexit legal challenge arguing that the UK government “would be acting unlawfully should it withdraw from the EU without a withdrawal agreement”.
CJ McKinney
@mckinneytweets
Lord Justice McCloskey said that, because of its intensely political nature, “the evidential underpinning of the Applicants’ cases is a mixture of unsubstantiated assertion, subjective opinion, rumour, innuendo and speculation”.
CJ McKinney
@mckinneytweets
This evidence fell “manifestly short” of proving that the government breached section 10 of the EU Withdrawal Act in its recent conduct of the Brexit negotiations.
CJ McKinney
@mckinneytweets
The High Court also rejected various other arguments, but did not consider a challenge to the prorogation of Parliament. McCloskey LJ said, essentially, that this was being argued out in the English and Scottish courts already and he had enough to be getting on with.”
It appears to me that 3 different, but related, cases have been put forward, but only the one that directly relating to only prorogation has been ruled on. This NI case is more relevant here maybe, that they wanted to test if no-deal brexit is unlawful. So Belfast has said it is political, not legal. Maybe that question would have a different outcome in Scotland, due to constitutional differences, but I suspect no court would want to test it until after it happens, and by then it’ll possibly be too late.
Andy – far too much information! Haha, what a bunch of wombles, unbelievable how ‘tradition’ can be so entrenched as to be impractical. Do you read any of the Secret Barrister? Effectively says the English judicial system is near falling apart the courts are so far behind with criminal cases – but they still ALL go on their summer hols all at the same time? Still bizarre to my mind.
I am also awaiting, with eager anticipation, which model of elite life they choose to reinstate – it might make the difference between us – having to doff our cap and walk in the muddy puddles as any approach – and – dying of cholera in droves. Can’t wait to find out.
Why do we have to put up with this situation. The referendum itself was advisory, riven with illegality and little respect for informed opinion on which any decision can be based and therefore no MP was mandated to respect it. Every effort has been made to respect it but quite obviously the considered opinion of MPs is that to leave would do more harm than good. That is why we have a representative parliamentary democracy where it is to make decisions on our behalf. Not one of mob rule where
‘leave means leave’ that takes no account of the nuances in between but one that makes appropriate consideration of the facts and decides accordingly.
Mr Johnson wants to use every procedural ruse to reach his nirvana of no deal. He is not the protector of democracy and the rule of law but the keeper of the desire to keep the Conservative party intact Sadly he will have neither as the greatest protection to our democracy is to abide by the rule of law and the party he attests to support is falling apart.
Article 50 should be revoked and we should start again, reboot, publish Operation Yellowhammer etc so that the people of this country have the maximum amount of information and are not treated as dullards and therefore unable to make a truly informed choice. That surely would hold our elected MPs to account.
Democracy enhanced and the people have a voice.
This barrister’s opinion published on the Foundry Chamber’s website appears to agree with you.
https://www.foundrychambers.com/on-sunday-11-august-2019-rose-slowe-was-interviewed-by-richard-foster-on-bbc-radio-5-about-article-50-and-the-legality-of-a-no-deal-brexit/
I broadly agree with @Michael G
I doubt very much whether the EU would wish to get involved in the UK constitutional arrangements.
I’d suggest they are far more likely to give us a unilateral extension to enable us to sort it out ourselves.
Though it is not inconceivable that there would be an appeal to the European Court of Human Rights because prorogation goes to the heart of democracy and hence human rights.
I wonder if even the European Court could find it has involvement.
lmportantly, basically if we allow prorogation to be available just as if the Executive had inherited the Divine Right of Kings then our democracy, even with all its faults, is worthless. Parliament can be shut down at will.
If the Supreme Court doesn’t realise this then I fear for our country and our ‘democracy’.
The issue is that Is not the case that Parliament has been prorogued by a Government(?) that effectively does not pass the test of being one based on our rules because it has not got any majority in the HoC?
I think that this is where the law might come in and intervene – and rightly so.
As I see it, we have – as a sovereign nation – woven EU law into our own.
If we are not going to keep to our rules/ constitution in dealing with EU law then:
1) The EU has a right to look at how we are handling EU Law (which is part of a treaty folks) within those rules – that we are consistent with good and established practice so that EU law is not being abused and that it is being respected along the lines of any agreement we have made with them as well as English law.
and:
2) That the British Government dealing with this issue has an effective mandate (a majority) that is recognised to carry out any actions affecting EU law, as after all, the British people are EU citizens too (we have not left yet remember).
As I see it, nothing in (2) seems to stand up to scrutiny at the moment. Since when was crashing out ever considered in the referendum? Sure – it was about leaving. But even Daniel Hannan spoke of retaining the single market. Now, it seems policy is to crash out with No Deal = no single market.
And what about Ireland? These are EU citizens too and the Good Friday Agreement is at risk, and so is peace.
As for (1) – we are in a treaty framework with other countries called the EU. The EU is not a sovereign country. It is a treaty and those in the treaty want to be assured that we are conducting ourselves properly as we withdraw from it.
What is wrong with that?
The only people objecting to that are those in the Establishment who have never accepted sharing sovereignty with Europe and the misled folk in the street who follow them.
I’m quietly chuckling to myself (yes, I know it’s not really funny) at the prospect of apoplexy in some quarters if this ends up in the ECJ 🙂
I can’t see how the prorougation of parliament has anything to do with Article 50.
Even if it has, one could argue that it is the decision to withdraw from the EU that has to be done in accordance with constitutional arrangements, not the withdrawal itself. And, given that article 50 was (eventually) voted on by mps, that box is ticked.
You can’t
I can…
That’s the law for you
A new case against Boris has been launched in the Scottish Courts
The campaigners have applied directly to the inner house of the court of session, the court’s senior tier, as it has a power unique amongst British courts to provide a legal remedy if one is not available elsewhere, a power known as nobile officium.
Maugham said that if Johnson refuses to seek an extension, as he has repeatedly suggested he will, they would ask the court to making the extension application required by the Benn Act on the prime minister’s behalf.
“The inner house of the court of session has a special and versatile jurisdiction — its nobile officium — which it can use to, in effect, per procurationem or ‘pp’ any letter that the prime minister refuses to send,” he said. “The rule of law is not a thing to be grifted — not even by the prime minister.”
https://www.theguardian.com/politics/2019/sep/12/anti-brexiters-new-legal-challenge-scotland-to-force-article-50-extension
Woah, fascinating. The court can pp a letter for the PM – that would be just, well, just, gosh. I do hope they say they’ll do it.
The things we are learning about the legal system these days, eh.
The standard work on ‘nobile officium’ (which has a long history in Scots Law, is drawn from Roman Law and appears quite distinct from English Law), and which is still used, sparingly in the Court of Session is: Dr Stephen Thomson, ‘Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland’ (2015).
Dr Thomson, according to his university CV., is currently Associate Professor in the School of Law, City University of Hong Kong. He is a Legal Adviser to the Ombudsman of Hong Kong, a member of the Constitutional Affairs and Human Rights Committee of the Law Society of Hong Kong, and an examiner on the Overseas Lawyers Qualification Examination. He was recently a Herbert Smith Freehills Visitor at the Faculty of Law, University of Cambridge.
Dr Thomson seems to find himself in the middle of monumental events wherever he goes. I suspect some sharp journalist should hurry along and interview him.