The incredible sulk

Hulk angry. Hulk ignore law. Hulk smash constitution. Hulk want no deal Brexit. Lyin Bastert Johnson has now compared himself to the Hulk, warning the EU that “Hulk always escaped, no matter how tightly bound in he seemed to be – and that is the case for this country.” Then he went on to add that the angrier the Hulk got, the stronger he became. We can only assume that the Prime Minister of the UK has been exposed to a heavy dose of gammon radiation which has fried his brain. I must have missed that Avengers movie where the Hulk negotiated a deal on the Northern Irish border and made phytosanitary arrangements that the EU could accept.

Of course there are some important ways in which LBJ does resemble the Hulk. Neither of them can keep their trousers on, both are out of control mindless destructive forces, and both inhabit fantasies. That’s where the similarities end. The Hulk always ends up regreting the damage that he wreaked when he went on a rampage. LBJ only ever regrets things that he feels won’t further his career or inflate his ego.

It’s a crucial week for the exercise in political convenience that passes for the British constitution. On Tuesday the UK Supreme Court is due to start making its decision on the ruling of the Scottish Court of Session that the Government’s prorogation of Parliament was illegal. The English High Court has ruled that the matter is not within the competence of the courts, and it’s up to the UK Supreme Court to resolve the difference between the two rulings. Not even the Hulk can smash the two together in a way that doesn’t overrule one of them.

One of two things has to happen. Either the Supreme Court will uphold the ruling of the Court of Session, or it will uphold the ruling of the High Court. It has to uphold one of them. If it upholds the Court of Session ruling, then Parliament will have been found to have been prorogued illegally and will start sitting again immediately. The Prime Minister will have been found to have lied to the monarch – even though it’s improbable to think that the Queen didn’t know exactly what LBJ was up to – and he will either have to resign or he’ll be impeached by Parliament. There will be an almighty constitutional crisis. English nationalists will be outraged that Scotland has overruled England. It will increase the resentment amongst sections of the Conservative party south of the border, and reduce their resistance to another Scottish independence referendum.

Alternatively, the Supreme Court will uphold the High Court’s decision that the matter of prorogation is a political one which the courts should not get involved in. If that happens it’s a dreadful blow for the Scottish legal understanding of the constitution. The Supreme Court will have ruled that the Scottish constitutional tradition no longer has any influence in the UK. That will be devastating to those who claim that Scotland has a constitutional voice within the UK. It will in fact be a decision that the UK is simply, in legal terms, Greater England. Scots law and constitutional tradition will have been determined to be subordinate to that of England.

As was pointed out by TT Arvind, who is a professor of law at York University, there is an important difference between the English Bill of Rights of 1689 and its Scottish counterpart the Claim of Right which was passed by the Scottish Parliament that same year. Both these documents are regarded as being foundation stones of the constitution of the UK, one operational under English law, the other under Scots law, yet the English Bill of Rights simply declares that “parliaments ought to be held frequently”, whereas its Scottish counterpart goes significantly further saying “parliaments ought to be frequently called and allowed to sit”.

The reason that the Scots Claim of Right goes further in asserting the right of parliament than its English counterpart is because in 1640 the Scottish Parliament had already asserted its right to sit after it had been prorogued by the monarch. Charles I prorogued the Scottish Parliament, and in a typically Scottish way the Scottish Parliament went “aye, right”, and sat in defiance of the king. While Professor Arvind stresses that the Claim of Right does not create legally enforceable rights as a modern law might, it is strong evidence that the Scottish constitutional tradition expressly rejects the right of the monarch, or a Prime Minister exercising the royal prerogative on behalf of the monarch, to prorogue Parliament against the will of Parliament.

Professor Arvind also points out that the English High Court cited the Parliament Act of 1949 as evidence that parliament could be prorogued for a political purpose. However there is a significant difference between the prorogation of 1948 and that carried out by LBJ this year. In 1948 the Labour government, which commanded a majority in the Commons, wished to pursue a programme of nationalisation of important industries. However due to the Parliament Act of 1911, the House of Lords had the right to delay bills for three sessions of parliament over two years. The Government was concerned that the Lords would use this power in order to block the nationalisation programme. In order to get their programme through, the Government decided to alter the Parliament Act so that the Lords could only delay bills for two sessions over one year. Since the 1911 Act carried a legal obligation to a delay over three sessions before it could be altered, the Government got around this with an extraordinary short session of parliament in 1948, with a King’s Speech on 14 September 1948, and then proroguing Parliament just over a month later on 25 October. That fulfilled the requirement of the 1911 Act.

The crucial difference here is that the prorogation of 1948 was carried out by a Government which commanded a majority of 146 and the prorogation had the aim of ensuring that Parliament could carry out its business without that business being blocked or prevented by an unelected upper chamber. Labour was elected in the first general election after WW2 with a mandate to introduce nationalisation and the National Health Service. The deeply reactionary upper house, which at that time was composed solely of hereditary peers, was viscerally opposed to this. The workings of democracy were facilitated by the prorogation.

This year’s prorogation has the opposite aim, it is to ensure that a Government without a majority can escape the scrutiny of Parliament and drive through a policy for which it has no popular mandate. While the Government can argue that it has a mandate to deliver Brexit, it is a minority government and therefore cannot legitimately act as though it can ram through whatever policy it likes as if it did have a majority. Certainly the government has no explicit mandate to deliver whatever form of Brexit happens to suit the political purposes of Johnson and his cronies. The Hulk is the strongest force in any room, Alexander Boris de Pfeffel Johnson’s Government is not the strongest force in the chamber of the House of Commons. The purpose of this year’s prorogation is to frustrate the workings of democracy. It’s more incredible sulk than incredible hulk.

Many English commentators are predicting that the Supreme Court will uphold the ruling of the English High Court and overturn the Court of Session. It does seem that many of these commentators are basing their predictions on the casual metrocentric assumption that Scotland is subordinate to England, we shall have to wait and see what the Supreme Court decides. However if the Supreme Court does uphold the High Court ruling, it will be a deeply alarming development. They will have ruled that the British Government does indeed have the right to suspend Parliament in order to escape scrutiny. If that comes to pass, then independence becomes a necessity in order to defend Scottish democracy itself.

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38 thoughts on “The incredible sulk

  1. lf the Supreme Court overrules the Court of Session, it will in fact be an existential crisis for Scottish democracy because it will encourage those forces of reaction at Westminster to put Scotland, a pole of opposition to them, under direct rule using their nice shiny new buildings and staff in Edinburgh. It may encourage them also to try to subordinate or eliminate Scots Law entirely. That such acts are entirely unlawful acts of constitutional, legal, anti-democratic vandalism and should be unthinkable will not matter – because LBJ’s prorogation of the Westminster parliament is all those things, and he will have been allowed to get away with it.

  2. Surely the Supreme Court could uphold both thenHigh Court and the Court of Session rulings? They’re a result of different laws rooted in different legal systems, so surely they could both be true. (Somewhat amusingly it occurs to me that they could also, at least in theory, both be overturned?)

    From a political POV it seems to me that any pair of ruling the Supreme Court gives could have constitutional consequences. There’s not really any option that’s not going to seriously tee off some large segment of the population.

    • This is nothing new. Back in the 1970’s it was decreed that the House of Lords and not the Court of Session would be the last court of appeal for all civil cases in Scotland. This decision generated much controversy at the time among those in the legal profession who saw that Scots Law would henceforth become subordinate to English Law. Looks like they might be about to be proved right.

  3. Wondered when the next missive might appear from your water-cooled keyboard, as always it generates a smile and a chuckle… Bravo.
    Rejection of the CoS judgement in favour of that of lower Courts would be a lot more than be “a deeply alarming development”, it would cut directly across the Articles of Union. I doubt the SC would risk it but in these political times, who can tell. It would open a can of worms where England is perceived as subjugating Scots? Just what you need when negotiating new deals heading for sunny uplands, a tin-pot dictatorship? 🙂
    In terms of the Incredible Sulk/Bulk, DM’s printers must have exhausted all supplies of green ink available or run a premier and recycled the resulting vomit. It is childish and purile, yet Doris fits the profile. I doubt this is a Cumming’s plan, presumably a diversionary move will be created shortly.
    Seriously, how low can you get? Don’t ask Johnson, the dachshund was last reported in Tibet and still running… Watch Johnson’s approvals soar in England, but beyond the Watford Gap… ? Gobshite will probably be the common and printable observations…

  4. At the risk of repeating myself, the following comes from the Court of Session judgement :

    “Scots and English law were not necessarily the same as regards the use of prerogative powers (Admiralty v Blair’s Trustees1916 SC 247 at 266). If there was any difference, the law that was more limiting of executive power should be preferred.”

    So fingers crossed …

  5. I wonder if Scottish courts are overruled by supreme court, how this affects the treaty of union article 19 , would that be grounds to say the treaty of union has been broken by England.

    Likewise if England ignores Treaty, what’s to stop any treaties after treaty of union with united kingdom, being ignored by other countries?

    Eg spain and treat of Utrecht?

    • The cynic in me says that anyone who believes that the Supreme Court will find in Scotland’s favour, should have their bumps read. I do so hope that I am wrong but, I hae ma doots.

      • Some people say that the score is currently Non-Prorogue 1 Prorogue 2. I’d suggest that it’s 1-0, with the ball being put out of play a couple of times by the Belfast and London courts. As someone without legal training it seems to me that the Supreme Court has to draw on Scottish, English or NI law to make a legitimate decision. (Let’s forget about the sheep-“shearers”. We always do anyway. 🙂 )
        So, if the ball is thrown from the touchline you could say that a Scottish jersey is there to collect it according to how things are understood. If it goes straight into the Scottish net it could be kinda incendiary.

        • The sheep-“shearers” fall within the jurisdiction of English Law, more’s the pity. (For now ..)

          Yet there always has been a body of Welsh Law, before the loss of independence (to 1284), prior to the “Acts of Union” (1535 and 1542), subsequent to the Henrician settlement (1542-1999), and post devolution (1999-date).

          Don’t forget also, that unlike Scotland, the so-called Acts of Union between the “shearers” and the Anglos were abolished by Westminster as of 21 December 1993 (as amended) under the Welsh Language Act 1993, Sched. 2.

          We look forward to Scotland (Picts an’ aw’) in joining us in our freedom from such ‘Union’.

          – Possessor a LLB. (Hons.) English Law Degree
          an d Activist Member of SNP and PC.

        • It could spell the end of the Union either way – if the UK Supreme Court finds against the Court of Session judgment, then we Scots walk away from the Union in disgust; if the Supreme Court finds for the Court of Session judgment, then the English Nationaists “expel” us.

  6. I think the Supreme Court will decide that the Scottish court was correct in saying that the government and B Johnston prorogued Westminster parliament to enable its brexit plan to progress unhindered

    I think the Supreme Court will decide that the English and welsh court was correct in deciding that proroguing the Westminster parliament is a political question and not a legal question no matter how they went about the prorogation

    The Miller case for getting the S50 order through parliament in 2017 following the brexit referendum saw the government trying to do it with prorogation back then but the Supreme Court decided that as parliament had not had a chance to pass a law for a S50 order to leave the EU it was a legal requirement that the then government would have to allow parliament to sit and determine if brexit should go ahead and then pass an act of parliament allowing it to do so.
    Parliament sat and passed an act allowing brexit to proceed and to me that point is still relevant in this latest case because I think it is the same logic used in that case that will see the Supreme Court say that as an act of parliament has already been passed saying brexit should proceed then prorogation of parliament now to help it proceed is a matter of politics and not a legal matter

    Others have said that they think the Supreme Court will agree with both the English court and the Scottish court but for different reasons

    I agree

    Hope my explanation above is understandable

    • There was information available to the appeal heard at the Court of Session that was not available to Lord Doherty when he made his ruling. I understand – although I may be wrong – that the High Court in London didn’t engage with the evidence at all, ruling that the case was outwith its competence.

  7. Johnson’s “Hulk” adlib aside attracting widespread ridicule and and a host of memes, prompted one poster to suggest Caroline Lucas had refused his defection to the Greens….
    That this charlatan’s polling numbers continue to rise despite a series of failures almost repeats his performance as London Mayor, but like Farage an affliction largely confined to England. Even a SC finding against him seems unlikely to dent his popularity. All very odd, a declining nation mesmerised by snake-oil salesmen, ably abetted by MSM…

    • Of particular note:-

      ”Indeed, not only did the Court find the prorogation to be a ‘manoeuvre’ designed ‘to frustrate Parliament at such a critical juncture in the history of the United Kingdom’ but also a ‘blatant’ and ‘extreme’ such manoeuvre.

      Lord Brodie specifically referenced a publication on judicial review, detailing cases where courts had reviewed the Crown’s exercise of its powers in ‘egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities.’ The fact that the work cited was authored by (then) Lord Justice Sales, who will sit in the Supreme Court appeal on Tuesday, will not have been missed.”..

  8. Of particular note:-

    ”Indeed, not only did the Court find the prorogation to be a ‘manoeuvre’ designed ‘to frustrate Parliament at such a critical juncture in the history of the United Kingdom’ but also a ‘blatant’ and ‘extreme’ such manoeuvre.

    Lord Brodie specifically referenced a publication on judicial review, detailing cases where courts had reviewed the Crown’s exercise of its powers in ‘egregious cases where there is a clear failure to comply with generally accepted standards of behaviour of public authorities.’ The fact that the work cited was authored by (then) Lord Justice Sales, who will sit in the Supreme Court appeal on Tuesday, will not have been missed.”..

  9. You’ve got to laugh. Some Libdem politician are annoyed about Tories joining their party. That’s the party that’s already chocablock full of them, including Swinson herself.

    ‘Lib Dem leader Jo Swinson heckled by her own party members over Tory defectors.’


    ”They’ll talk to each other, but there’s no pact”, says lying Carmichael. Aye right!

  10. ‘The flaw in the Benn Act’ – Jolyon Maugham.


    Lesley Riddoch outing the hypocrites.

    ”Lib Dems new policy is to revoke Article 50 if in government – an option that exists only because of cross-party legal action in Europe by @joannaccherry, @andywightman plus other SNP, Scottish Green & Labour politicians – from which the Lib Dems bravely absented themselves.”

    • An option that only exists if the GE takes place before the UK exits the EU on 31st October or if the UK gets an extension and the GE takes place during that extension. Oh, and the LibDems win enough seats to form the next Government.

      Which of these do you think will happen?

      • “Which of these will happen?” Not the third option anyway Legerwood, thank goodness, so taking that into account it cancels out the other two. I’ve got to the stage of not knowing which party I despise most of all now. Blatant, overt Tories or sneaky, covert Libdems?


        Sam Gyimah has left the blue Tories to join the yellow Tories. Remember him “talking out” the John Nicolson SNP Turing Bill? The great speeches that they made versus 25 minutes of listening to his petty, spiteful tommyrot. Pathetic.

  11. I am not surprised about Jo Swinsons multiple accents of late. I wouldn’t trust that woman as far as I could throw her. She is nothing but a carpet bagging chancer who used her parents address in Milngavie on the ballot paper in 2017 general election.Unfortunately for me she also my MP and a totally useless one at that She had moved to south of England with hubby when she got booted out in 2015 by John Nicolson. No evidence exists to say she has bought another house in this constituency. Reliable info states she stays with her mother when she blesses the constituency with her presence. Supposedly at one stage she was renting a house here. She has broken numerous promises she made prior to 2017 election. She had opened an office in Kirkintilloch town centre couple doors down from John Nicolsons office and promised it would stay there. Magically after her re-election it shut. the current office she and the Lib Dems have is in an industrial estate in the rear end of Bishopbriggs that anyone would need to use a compass or sat nav to find. She consistently claims credit for accomplishments of local Independent and Green councillors. She has never set foot in this area and relies on support from Tory and Unionist voters who live in big expensive houses in the area. I laughed myself silly about the prospect of her becoming Prime Minister. She is clearly delusional I probably have more chance of getting that job. She is a Tory in sheep’s clothing her ideas to cancel Brexit without a further referendum and not allowing a 2nd Scottish referendum are totally anti democratic. I sincerely hope she gets booted out again at next election otherwise I will have to hope that proposed boundary changes that would put my area in West Dunbartonshire go through then I might get a decent MP. Yes I really would prefer to be separated from rest of my community to ensure I don’t have to suffer her as my MP any longer

  12. Oops noticed my post above has posted to wrong subject. Boris thinking he is like the Hulk is hilarious. He obviously hasn’t seen the latest Avengers movie where the Hulk embraces both sides of his persona and becomes Smart Hulk and becomes much calmer.Then again Boris isn’t very smart he just acts like a smart arse most of the time

  13. The key to all this is that the only conflict is in the decision on whether to judge the case at all.

    By saying we can’t judge the High Court may or may not be correct but that doesn’t mean that the Court of Session is wrong.

    In effect there is no actual judgement to be upheld from the High Court. However the CoS operates under Scots Law and sees things differently.

    Also remember that the actual asking, which is the point where it went from theory to practice, happened at Balmoral.

    As that is so the CoS has a far stronger jurisdictional right to officiate in this case.

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