LAST week was another whirlwind week in the politics of Brexit. On Tuesday, Ian Blackford and I, together with other SNP MPs, participated in cross-party talks at Westminster.
At last it looked as though the opposition was united and that we would take enough Tory rebels with us to prevent the economic catastrophe of a No Deal Brexit.
I came home on the sleeper and had only been in Edinburgh for a few minutes on Wednesday before Ian phoned to inform me that privy councillors were on their way to Balmoral to advise the Queen to prorogue Parliament.
Fortunately, due to the foresight of Jolyon Maugham, director of the Good Law project, the same legal team who won the Wightman case, the challenge to the legality of a prorogation was already up and running in the Scottish courts with a scheduled hearing on September 6.
This meant I was able to convene a hasty teleconference with our legal team and to resolve to seek an emergency order to try and prevent the prorogation.
We obtained a court hearing at noon on Thursday by which time of course the order to prorogue had been made by the Queen. The effect of that order is that the Westminster Parliament should be prorogued no earlier than Monday September 9 and no later than September 12 until Monday 14 October.
READ MORE: Ignorance of Scots law has Brexiteers looking quite silly
When we first brought the case in early August, the UK Government’s position was that there were no plans to prorogue and our concerns were academic. This lack of candour was mirrored in the letter written to MPs by the PM which stated that the prorogation was necessary in order to introduce a new programme of domestic legislation and a Withdrawal Agreement Bill.
The effect of the prorogation will be to cut the parliamentary time available before exit day to fewer than 10 days. It is absurd to argue that this is to facilitate time to introduce a new legislative agenda when its effect is to limit the time to consider and enact that agenda.
The dogs in the street know the real reason for the suspension of Parliament and it is now clear from statements made in public by Defence Secretary Ben Wallace, the Secretary of State for Defence, Jacob Rees-Mogg, the Lord President of the Privy Council, and the Prime Minister himself, that the true intention behind the decision to prorogue Parliament is to prevent Parliament from holding the Government to account for its conduct of Brexit preparations.
When the court first ordered a hearing of the case it also ordered the parties to lodge notes of argument based on affidavits (sworn statements of the parties setting out their position). I have lodged an affidavit but there are no affidavits lodged for the UK Government and that is why I am calling on Boris Johnson to swear on oath his reasons for the prorogation.
We are asking the court to suspend the Queen’s order and to interdict UK Government ministers from acting upon it. We are attacking the legality of the advice given to the Queen, not the Queen’s actions in following it.
However, it is important to remember that the sovereign is not above the law. This has always been the tradition in Scots law. We do not live in an autocracy of divine right.
The Claim of Right 1689 states that there are legal limits on the power of the monarchy and our case is firmly based on the independent Scottish constitutional tradition that the monarch is in part subject to public responsibilities – to the people and the law. Her role is to serve, not to rule.
Furthermore, there is recent UK Supreme Court authority that the exercise of the prerogative power is open to review by the court The UK is a multi-national entity and the Scottish courts hold the Crown to account subject to Scots law. So a Scottish court can bind the Parliament in London.
The Act of Union did not abolish or subordinate Scottish constitutional law and our distinct legal tradition continues.
The advice which the UK Government gave the Queen was unlawful and unconstitutional because its purpose is to restrict Parliament’s ability to hold the Government to account and, because the advice frustrates the will of Parliament to scrutinise the Brexit process as expressed in a number of statutes, including the EU (Withdrawal) Act, the Northern Ireland (Executive Formation) Act and the Fixed Term Parliaments Act.
Last week, we sought emergency interim orders. The court refused them because Parliament cannot be prorogued before Monday September 9, arguing there was therefore no urgency, bearing in mind that the court was due to hear the full case on September 6.
There was no decision on the merits and the full hearing of the case was brought forward to September 3, when Lord Doherty will decide whether or not to make permanent orders preventing the prorogation. His decision could be appealed.
So, this week, the Scottish case will lead the vanguard on Tuesday, with Gina Miller’s case being heard in London on Thursday. I suspect both cases will end up in the UK Supreme Court together with the Northern Irish action.
I believe we have good prospects of success. Although we are in uncharted territory, it is significant that a number of separate legal teams have reached the same view as us and that litigation is proceeding in Northern Ireland and in London.
In the English case, Miller’s legal team will be joined by those of the former prime minister John Major, the shadow attorney general, Shami Chakrabarti, and the deputy leader of the Labour party, Tom Watson.
It is also worth recalling that while we lost at first instance in the Wightman case about revocation of Article 50, we went on to win in Scotland’s appeal court and successfully fought the UK Government all the way to the European Court of Justice.
Likewise, Miller was successful in her legal challenge to the UK Government on the manner of triggering Article 50.
And if we lose? The UK Supreme Court will have ruled that a prime minister can suspend Parliament in order to achieve a goal for which there is no majority in the House of Commons. This would be ample evidence that the British constitution and British democracy are broken.
Furthermore, if the prime minister can suspend the Westminster Parliament, that supreme sovereign parliament we have heard so much about, then what is to stop him from suspending Holyrood?
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Callum Baird, Editor of The National
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