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By Jason Michael
ONCE THE DECISION of the Edinburgh Court of Session and Gina Miller’s appeal were referred to the United Kingdom’s Supreme Court – both contesting the suspension of the Westminster parliament, the eyes of the world were fixated on the eleven members of the highest judicial body in the British state. My own prejudice, both of the legal process and of Britain’s attitude to Scotland – which the ruling of the Supreme Court has not changed in the least, did not inspire much hope for a positive outcome for those hoping for the resumption of parliament. The ramifications of such a ruling, besides the mere legality of the government’s actions, were to far-reaching. Not that it would cost me much sleep, but today’s ruling puts the British monarch in a bit of a pickle – it puts Mrs Saxe-Coburg und Gotha firmly in the frame and explicitly subjects her to the law. While this has always been the case in Scots law, it hasn’t entirely been this clear in English law. We can only imagine there will be a few powerful people south of the border unhappy with this precedent.
Media coverage and much of the public analysis of the case have removed the monarch from the discussion, preferring to she her part in this as that of an unwitting victim of a Prime Minister who has ‘misled’ her, but, and in reality, Boris Johnson does not have the executive authority to prorogue parliament. The bottom line is that it was not the Prime Minister who, with a minority government, made the authoritarian move to close Westminster, it was the unelected head of state – the monarch. Naturally, her supporters have leapt to her defence, saying she had no option; that she must act on the advice of her chief ministers, that she was ‘just following orders.’ But if the law is the law and if, as has been determined today, the monarch is not above it, then not even she is entitled to the Nuremberg defence. Ignorance of the law is no excuse for acting ‘unlawfully.’ It comes as a huge surprise, then – given these two consequences alone, that the Supreme Court came to this decision.
Boris Johnson did not suspend parliament, He does not have that power. Mrs Windsor suspended parliament, and she did it 'unlawfully.'—
Jason Michael (@Jeggit) September 24, 2019
Then we have to consider what this means for Scotland. We all know the theory; that, with the slight proviso it is subject to a Supreme Court in London, the Scottish legal system is independent. But we know too the reality of the hegemonic relationship we have with England. In practice, the British state doesn’t give a fig for the will of the Scottish people and about as little for the so-called independence of our courts. In union, Scotland and the interests of Scots are railroaded by the British state. We have precisely no say over what happens to our own natural resources, with a massive democratic deficit in the Commons our youngsters are sent to fight and die for England’s geopolitical interests abroad, and without a second thought the British government stole a significant portion of our oil and gas-rich sea territory on the eve of the opening of the Scottish parliament. We know the reality of this union relationship, we know the contempt of the Westminster government for Scotland, and so it stands to reason that we didn’t really want the theory of the equality of our legal systems tested. We could do without another humiliation.
It was tested, however, and it was proven. The ruling of the Court of Session – the highest court in Scotland – stood the test of the Supreme Court in London, showing once and for all that Scots law is equal to English law and that our Claim of Right (1989), that it is the ‘sovereign right of the Scottish people to determine the form of Government best suited to their needs,’ has legal meaning (not legal force – yet, but meaning). The ruling of the London Supreme Court opens for us the possibility of the legal testing of the Claim of Right, giving the sovereign people of Scotland – and not the British parliament – the right to determine the future government of our country, be that in union with England or as an independent state. This is a consequence of the Supreme Court ruling, and we never saw that coming – or I never saw that coming.
Still, however, we have the naysayers. Since the reading of the ruling by Justice Brenda Hale, there has been a number of commenters on social media suggesting this ruling and its implications are little more than a greater scheme to further entrap Scotland in the union, a proposal which suggests a conspiracy at the highest levels of the British state. But the ruling itself undermines this conspiracist thinking. The actions of the Supreme Court were not taken in light of the question of Scottish independence, but on a matter of constitutional law pertaining to the power of the monarch and the government. Its determination found that their power is not limitless. Rather, it ruled that executive power rests in the sovereign will of parliament – that, in law, it is the people and not the monarch or her government who exercise, through their elected representatives, the sovereignty of the people (for Scotland) and the authority of the Crown in parliament (for England and Wales).
Not merely in our theory of democracy, as has been the case until this morning, does the sovereign will of the people trump the monarch and her government, it is now an explicit matter of British law. This was the purpose and intent of the Supreme Court. Its consequences for the future of the monarchy, the future government of Scotland, and the future course of Brexit are simple ancillaries to this decision – they are, for all the Supreme Court was concerned, unintended consequences.
So, where does this leave us now? For the people of England and Wales it puts beyond all legal doubt their sovereign right to hold their government to account. This was a point I recently argued with SKY News’ Adam Boulton, who asked me: ‘If parliament returns now what in practice will it do about Brexit before 19/10?’ My response to him was that a democratic parliament does so much more than talk about one issue (Brexit in this case), that Westminster is the state legislature for some 66 million people – people who have a right to be duly represented by their elected members of parliament. The Supreme Court this morning shot down his narrow Brexiteer interpretation of the function of parliament and found in favour of the supreme right of the people.
But not just for laughs. If parliament returns now (the big issue) what in practice will it do about Brexit before… twitter.com/i/web/status/1…—
Adam Boulton (@adamboultonSKY) September 18, 2019
It means all this and more for the sovereign people of Scotland. On top of the recognition of the validity – in practice – of our highest court, it recognises – in practice – the different nature of sovereignty in Scotland. We are not subject to the Crown, either to the person of the monarch or to the sovereignty of the Crown in the Westminster parliament. They are in fact, so far as the government of Scotland is concerned, subject to us – as a matter of British law. No longer is this a mere theory or a principle of the historical terms of the treaty of union. It is British law in practice, and so determined by the highest judicial authority in the British state. Let’s pause and absorb this for a second. In theory it changes nothing. This was always the theory. But in practice, this changes everything. Until this morning the behaviour of the British government assumed a misguided and an essentially English legal attitude towards Scotland – that we were dominated and subject to its authority. This is no longer the case.
The ruling of the Supreme Court offers Scotland and Scotland’s elected representatives – the only representatives of the sovereignty of the Scottish people – a whole new set of opportunities. British government attempts to stifle the Scottish government can now be challenged in the Supreme Court and retarded by the precedent this sets. In principle, it removes from the British government the assumed right to grant or withhold permission for constitutional referenda in Scotland, voted for by the Scottish parliament and Scottish MPs in the House of Commons. It is a ruling that states, in law, that Scotland’s membership of Great Britain and the United Kingdom is a matter for Scotland to ratify or reject when we – and only we – see fit.
Now, I do not think for a single second that these consequences were at the forefront of the eleven justices’ minds as they were deliberating, and I do not believe these things were on their minds when they reached their unanimous decision. This is, to be frank, too much of a conspiracy. It would involve far too many people, and it would, if it was the case, draw into question the very foundations of the British legal system, and ultimately and comprehensively undermine the legitimacy of the British state. Notwithstanding the personal prejudices of the justices themselves, this was an independent decision arrived at by legal experts wholly independent of the other branches of the state. My belief is that this was primarily the decision of an English imperialist legal body by and for the English state, but that it has serious ramifications for the autonomy of the Scottish legal system and for the power of the sovereignty of the Scottish people within and outwith the union.
Supreme Court: Suspending Parliament was unlawful, judges rule