View Single Post
Old 09-11-2019, 08:14 PM
UDS is offline
Join Date: Mar 2002
Location: Australia
Posts: 8,933
Originally Posted by Baron Greenback View Post
As the case was against the Westminster government, on a matter concerning the whole of the UK including Scotland, then the court's decision is binding on the UK government.

Obviously the Supreme Court is involved now, and we'll see what they think. That court has to decide between two fundamentally opposed positions, held by two of the three judicial systems governing the UK:

a) the reasons for prorogation are not justiciable - it's a purely political decision (England and Wales), and

b) the reasons for prorogation are justiciable and the reasons have to be proper, and in this case they aren't (Scotland)

It's a bloody minefield...
Actually, there's a relatively easy reconciliation: The rule of law means that the government must comply with the law; in this context, this means that it must comply with the law of England and Wales and the law of Scotland and the law of Northern Ireland; as a matter of Scottish law, the reasons for prorogation are justiciable; as a matter of Scottish law, the reasons iin this case are improper. If the government's conduct doesn't pass muster under Scottish law then it makes no difference at all whether it passes muster under E&W or NI law. Exactly the same reasoning would apply if the Scottish courts had taken the view that the question was not justiciable and the E&W courts that it was.

What this means is that the biggest questions at the Supreme Court hearing next week will be (a) is the issue justiciable as a matter of Scottish law? and (b) were the reasons given proper as a matter of Scottish law? It is irrelevant to question (a) whether the issues is justiciable under the law of any other part of the kingom, and it is irrelevant to question (b) whether the reasons given, if they were justiciable, are or would be considered proper under the law of any other part of the kingdom.

In other words, in the events which have happened, the Scots law case is the big one.

The case will be heard by a panel of 9 judges, two of whom are Scottish judges (as in; members of the Scottish bar; practised Scottish law in the Scottish courts; were appointed to the Scottish bench and were judges in the Scottish courts before being appointed to the Supreme Court). I believe the convention in the Supreme Court is that when questions of Scottish law arise, the non-Scottish judges on the panel will normally defer to their Scottish colleagues (and correspondingly for questions of NI law and E&W law). So the opinions of these two judges may be decisive. Let's hope they don't disagree.