Friday, 4 November 2016

Constitutional hugger-muggery ...

According to the legal decision of three English Law Judges, the purely English Law concept of the 'Crown in Parliament' (aka 'the Royal Prerogative') can not be used the UK Government executive (Prime Minister and Cabinet) to rail road through their non existent plans for Brexit by unilaterally triggering Article 50, with out first consulting the MPs and Lords in the UK Parliament and gaining their approval by means of a Parliamentary Bill as that is the only constitutional way to do this.

Ms May is now going to appeal to the UK Supreme Court to have this legal opinion overturned in her government's favour. Ms Sturgeon is now receiving brickbats from the usual suspects after announcing the Scottish Government will observe the appeal proceedings with due diligence and may join the action to prevent this judgement being overturned.

So far, so good but given the issue there is no written UK constitution and the UK Parliament's sovereignty is limited, under the Treaty of Union courtesy of article 19 of the treaty, will a Scottish Law Lord be a member of the UK Supreme Court panel to give weight to the Scots Law view which does not recognise the purely English Law concept of the 'Crown in Parliament' in any shape or form. There is, after all, no such beast as 'British Law' except in the increasingly hyperbolic, lunatic rantings of the Express, Mail and Torygraph as they try to claim the application of English Law is somehow unconstitutional, as it fails to support their highly jaundiced view of English Law, by applying legal and constitutional precedence and the current interpretation of the law.

I think we Scots need to watch very carefully the make up of the Supreme Court Judges hearing Ms May's government's appeal and if there is no Scots Law and constitution expert on the panel kick up a right old stooshie since, as I have argued quite often through the years on these pages, there is a legal necessity for the considered will of the people of Scotland to be an integral part of the argument against this appeal by the Tory Government. The considered will of the people of Scotland, by a sizable majority, is to remain within the EU and under the Treaty of Union these views must be properly considered. This time around there can be none of the usual Westminster political games played by both Labour and Tory MPs which allows England's view to be the only view which counts. 

It is time for the Scottish Government to exercise the arguments against the UK's unwritten constitution and Scotland's supposed subservient position within it, first exposed by Lord Cooper in his review of McCormack vs the Lord Advocate in 1953. At the time Lord Cooper wrote his review he could not see a time when the status quo could be challenged but he did not forsee the majority of SNP MPs at Westminster, a devolved Scottish Parliament governed by the SNP or the creation of a UK Supreme Court whose origins lay in the need for Blair to be able to impose control over the devolved Scottish Parliament. A move which fell at its first hurdle when it was pointed there was no such creature as 'British Law' and Scots Law Lords needed to be on hand in the UK Supreme Court to decide and advise on judgements and parliamentary acts which impacted on Scots Law and constitutional practice.

This all leaves the intriguing prospect that this dysfunctional Tory Government, seeking to appeal to the UK Supreme Court, could trigger the unraveling of the current Anglo-centric, UK Parliamentary, unwritten constitution as the UK Supreme Court will have to consider the merit of the considered will of the people of Scotland being ignored and side lined by this government on the issue of Brexit. A considered will, as expressed in the recent EU referendum, which is binding on Scots MPs and MSPs under Scots Law and constitutional practice as, as Ms Sturgeon has made clear in her opposition to Scotland being dragged out the EU, the considered will of the people of Scotland is paramount.

Will this misguided appeal by Ms May's Government become the straw which breaks the UK Parliamentary camel's back as its basis of operation collapses around its ears?

What a grand hugger-mugger, stramash and potentially fatal, UK constitutional stooshie that will present.


  1. This is going to be fun in a truly macabre way.

  2. This is going to be fun in a truly macabre way.

  3. Great piece thanks Tarff.

    It is certainly a very tangled web indeed. The WM lot like the simpletons to have as little info and knowledge of how things work, and about the mechanisms available to the Scottish government. Many people know very little about what is actually devolved, and even less about their own history (of Scotland), independence and about the parliaments of the so called, UK.

    I hope that Scotland comes out of this without too much damage, but that remains to be seen.