Careful, a lot of London taxi drivers don’t accept Scottish court rulings.
(stolen from Twitter)
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. 
Remind me again: what would the penalty be if Boris Johnson fails to ask for an extension?
Depending on what you read, anything from nothing to indefinite imprisonment. If he stays as PM, and a court orders him to follow the law, and all appeals are exhausted by 19th October, and he still refuses to request the extension, he may well then be in contempt of court. In that case, we have a constitutional crisis.
Should it happen differently, for example if he resigns as PM or if the law gets tied up in legal wrangling for long enough, the consequences to him will probably be entirely political, in that he will have to seek election when the public knows he’s done these things. There’s a significant amount of voters who will think he’s a hero if we do leave the EU by 31st October, sadly.
The penalty for the country is that we’re utterly fucked, we either leave the EU without a deal, we have a Government that’s even less functional than currently, or both.
My prediction - Boris finds a way to not ask for an extension, we crash out without a deal, and there’s an election where he ends up leading another minority government. And the UK pretty much collapses.
My guess, for what it’s worth: If the requirement to seek an extension “bites” Johnson resigns as PM (but not as party leader), protesting volubly, rather than (a) seek an extension or (b) break the law and have to deal with the consequences of that. An interim/caretaker prime minister complies with the law and seeks an extension.
Whether or not an extension is granted, a general election follows soon after. Johnson campaigns as the man so committed to making Brexit happen that he resigned rather than request an extension, and he seeks to demonise his opponents as opponents of makign Brexit happen and, therefore, of the Will of the People.
The important question is not whether, if Johnson breaks the law, he will suffer a sanction and if so what saction. That’s a secondary issue. (Though it is fun to speculate about.)
The important question is, if Johnson breaks the law, what mechanisms and remedies are available to ensure that the law is nevertheless carried into effect, and the intention of the legislature realised? Can the consequences Johnson’s lawbreaking be rectifed by the actiosn of others and, if so, what others and what actions?
Thank you both.
I’m thinking that Johnson will be coy and mostly silent, except when he’s making vague promises that he’s going to ask for the extension. Then he’ll spend all day on 31 October out of sight and resign at 11:50pm, claiming that he just couldn’t bring himself to ask for the extension, but he didn’t want to break the law, so he resigned before the deadline. And it’s just not his fault that a new PM couldn’t be placed in time to ask for the extension before the deadline passed. He’s a man of principle, you see.
This won’t work. They thought of that, as a result of which the obligation set out in the legislation is to ask for an extension “no later than 19 October 2019”. So if his “with one bound he was free” move is going to be resignation, he has to resign before 20 October. That leaves 11 days to identify an interim PM who is willing to carry out the duties of the office; should be enough.
I’m not sure of the exact process, but would he not have to tender his resignation to the Queen and she have to accept it? The old dear will be in bed by ten to midnight, surely.
OB
Boris Johnson is a liar? Who knew? :smack::smack::smack::smack::smack::smack::smack:
I watched John Oliver’s latest piece on Boris. The winning line:
Great to hear; thanks for the information.
I suppose it’s theoretically not impossible that a failure to do what the law now requires might justify a charge of “malfeasance in public office” or at least nonfeasance - certainly the top rank civil servants are worried about the prospect that they might fall foul of the law if ministers ignore it.
BoJo denies lying to HM - but then, he would, wouldn’t he?: Boris Johnson says he didn't lie to the Queen over suspension of Parliament | CNN
If he’s not careful, she’ll invite him back to Balmoral for a week or two.
In November.
In a hairshirt and no shoes.
“We have to go to a foreign country now to visit Balmoral, Boris. Are you happy?”
"No? Good."