Richard North, 12/09/2019  

One should recall that, before the shock ruling of the Scottish Inner House on the prime minister's advice to HM the Queen on the prorogation of parliament, the Lord Ordinary had already dismissed the petition.

This was Lord Doherty, who had ruled on 4 September that the advice given in relation to the prorogation decision was a matter involving "high policy and political judgement". This, he said, "is political territory and decision-making which cannot be measured against legal standards, but only by political judgements. Accountability for the advice is to Parliament and, ultimately, the electorate, and not to the courts".

The ruling was not dissimilar to that of the English High Court where the panel headed by the Lord Chief Justice similarly decided on a "line of separation" set by the courts, as to whether the issue was one of "high policy" or "political" or both.

In the circumstances and on the facts of the present case, the three judges ruled that "the decision was political", adding an intriguing rider that purpose of the power of prorogation was not confined to preparations for the Queen's Speech. It could even "extend to obtaining a political advantage".

Furthermore, they ruled, even if the prorogation in the present case had to be justified as being to enable preparations for the Queen's Speech, the decision how much time to spend and what decisions to take for such preparations was not something the court could judge by any measurable standard.

In reaching these conclusions, the judges were particularly keen to preserve the separation of powers, reflecting the different constitutional areas of responsibility of the courts, the Executive and Parliament, and thus concluded that the claim – this one lodged by the egregious Gina Miller, must fail.

In their view, therefore, the decision of the prime minister to advise Her Majesty the Queen to prorogue Parliament was not justiciable in Her Majesty’s courts.

When yesterday the Scottish Inner House reached a completely contrary view, it is not an exaggeration to say that this came as something of a surprise. There were, apparently, gasps of shock in the court as the Lord President, Lord Carloway – heading a panel of three judges – read out its judgement.

Conceding that advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, they nevertheless decided to impose an innovative qualification of their own.

If the purpose of the prorogation was to stymie parliamentary scrutiny of the executive - a central pillar of the good governance principle enshrined in the constitution – then the advice would not only be judiciable but also, in their view, unlawful.

And if the impact of this was not enough, what followed from the ruling was the assertion that, despite Johnson's consistent claim that the sole purpose of the prorogation was to end the session and thereby bring forward a Queen's Speech, opening a new session, this was not true.

"The circumstances in which the advice was proffered and the content of the documents produced by the respondent", the judges said, demonstrated that stymying parliament "was the true reason for the prorogation". Once again, Johnson had been caught out lying.

With two out of three courts finding in favour of Johnson, however, the matter is now to go to the Supreme Court, the hearing(s) taking place next week leading to a decision expected by 23 September. Whatever the finding of this court, however, the Scottish Inner Court has done serious damage to the prime minister in office.

On the panel, Lord Brodie considered that, while the petition raised a question that "was unlikely to have been justiciable", this particular prorogation was intended to frustrate parliament and therefore could legitimately be established as unlawful.

But what came next was particularly damning. This, said Brodie, "was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities".

It was, he added, "to be inferred that the principal reasons for the prorogation were to prevent or impede parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further parliamentary interference".

Yet, for all that, it is far from certain that the judgement will damage Johnson's core constituency. Parliament is hardly the most popular institution in the land and Kwasi Kwarteng, the business minister, claims that voters were "beginning to question the partiality of the judges" and accusing them of "interfering in politics".

This comes from a report in the Telegraph and you would expect this newspaper to protect their boy. But, as it stands, two out of three courts agree that this is not a matter for the judiciary.

It is perhaps indicative that the Scottish judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, most of them opposition MPs. But there is something unedifying about MPs running to the courts to settle a dispute between themselves and the executive. Even if they win, they diminish themselves by having to turn to a third party to fight their battles.

The Guardian, in its running thread, relies heavily on Lord Sumption, a former supreme court judge, who had spoken to the BBC's World at One during the day. He thought the Scottish judges were "pushing the boundaries out", a clear inference that he was witnessing judicial activism. His own view was that the prorogation was "a political issue, not a legal one", and that the case could only be resolved politically.

Should the Supreme Court agree, it will do much to wind back the outrage that has accompanied this prorogation although, after its intervention on Miller's Article 50 case, one cannot assume that it will resist the temptation to interfere. To predict an outcome would be rash.

Needless to say, sundry MPs are demanding that parliament should be recalled, with Labour and the SNP leading the charge. But the Scottish court gave no order to that effect and, pending the Supreme Court judgement, the only person with the constitutional authority to get the MPs back in their places is the Queen, by way of formal proclamation.

If the Supreme Court finds that the prorogation is void, then presumably the Queen's intervention will not be needed. MPs can go back to Westminster as if nothing had happened.

Meanwhile, as if they hadn't already had enough excitement for the day, the chatterati are getting worked up about the "Yellowhammer" document that was released by the government late yesterday evening. Since the contents have already been comprehensively leaked, the disclosure tells us nothing new, of a report that has been vastly over-egged.

And with that, it has to be said that nothing of yesterday's events have brought Brexit any closer. If there was anything relevant, it was an intervention by France's minister for Europe, Amélie de Montchalin, who accuses the UK of breaking "the spirit" of negotiations with the EU by trying to strike "mini-deals" with individual EU member states.

"We see that in the bilateral meetings the British try to get with their opposite numbers that they are trying to organise a managed no deal", she told a news conference after meeting the 26 ambassadors to France of the EU's members, with the British ambassador excluded.

"And what the British want is to ensure that the different relationships that they have with each EU member state are recreated before the moment of separation, thanks to these mini deals", she says. "It is completely contrary to the spirit in which we’ve been negotiating. When [Stephen] Barclay [the UK Brexit secretary] or others try this in France, we say: 'We hear you. Go and talk to Michel Barnier to see what can be done at the European level'".

For her peroration, de Montchalin warned that a no-deal was now "highly possible", adding that a Brexit extension request by the UK would not be accepted under "current conditions". If nothing changes, she explained, "we have always said time alone is not a sufficient reason [for another extension]. We cannot commit today, because we have no concrete scenarios yet".

Johnson may yet get what he wants, without even trying.

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