Stop the coup …?

Photo by Samuel Zeller on Unsplash

On 28 August 2019, the UK Prime Minister, Boris Johnson MP announced that he would seek the permission of Queen Elizabeth II, the British Head of State to prorogue (suspend) the sitting of the Westminster Parliament between 10 September and 14 October 2019. The Queen duly acceded to this request – though in her defence she could not really refuse being a mere ceremonial Head of State i.e. without possessing real executive powers

The Prime Minister has argued that there was nothing untoward or sinister about this development and that it was a necessary step to introduce a new Queen’s Speech which would set out the priorities of the Government which he leads.

This did not convince opposition politicians (Jeremy Corbyn, Nicola Sturgeon and Jo Swinson et al) who predictably labelled the move a “coup” i.e. an unlawful seizure of power and the undermining of British democracy. They argued that the move to suspend Parliament for 5 weeks was more about the Prime Minister driving his Brexit agenda through without proper parliamentary scrutiny – not about a new legislative programme.

In any event, the courts have now become involved in the matter: 78 British parliamentarians (representing all strands of political tradition) petitioned Scotland’s Court of Session to have Prime Minister Johnson’s action declared invalid.

A preliminary hearing took place last week and the judge, Lord Doherty was refused to grant the petitioners an interim interdict (a temporary court order) preventing the Prime Minister from carrying out his intention to prorogue the UK Parliament. A full hearing of the Court followed on Tuesday 3 September in Edinburgh, where both sides (the petitioners and the UK Government) set out their respective legal arguments in full.

As of this morning (Wednesday 4 September 2019), Lord Doherty has made his decision whereby he has declined to uphold the petition to prevent the Prime Minister from proroguing Parliament.

A link to Lord Doherty’s opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

The underlying rationale of Lord Doherty’s judgement seems to be that this political and not a legal matter. In other words, it will be for members of the UK Parliament – or ultimately the British electorate – to sort out this matter.

A link to the Evening Standard’s website containing video footage of Lord Doherty delivering the substance of his opinion can be found below:

https://www.standard.co.uk/news/politics/scottish-courts-throw-out-challenge-to-boris-johnson-proroguing-parliament-a4228621.html

This will not be the final word on the matter – there are bound to be appeals against Lord Doherty’s judgement (and he may well be relieved to be exiting stage left). I would not be surprised if this matter ultimately proceeds to the UK Supreme Court for a definitive judgement.

This, of course, is one of the problems with having an unwritten British Constitution. In other countries, which have written constitutions (France, Germany, Italy and the USA), there are very clear rules about suspending Parliament or the national legislature. Only last week in Italy, the prominent politician Matteo Salvini withdrew his party (the Northern League) from the Government in an attempt to force fresh, national elections. Mr Salvini miscalculated because the Italian President (the Head of State) decided not to dissolve Parliament and call new elections. Rather the President gave Salvini’s ex-coalition partner, the 5 Star Movement, and the Democratic Party an opportunity to form a new government (which they have duly managed to achieve). President Mattarella was clearly entitled to take this action under the relevant Articles of the Italian Constitution.

This does not mean that, in political systems with written constitutions, the courts have no role. Of course they do. It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

In such circumstances, it’s hardly surprising that Lord Doherty is only too happy to pass the buck to the politicians … for now anyway …

Watch this space.

Postscript

The Inner House of the Court of Session (consisting of Lords Carloway, Brodie and Drummond Young) will now hear an appeal by the petitioners against Lord Doherty’s judgement. This is scheduled to take place the week beginning Monday 9 September 2019.

In a separate, but connected, legal challenge, the English High Court rejected a bid by the campaigner, Gina Miller, to have the prorogation of Parliament declared unlawful. Leave to appeal to the UK Supreme Court has been granted.

Copyright Seán J Crossan, 4 and 6 September 2019

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sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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