The future of democracy

I’ve been watching the Supreme Court session on telly. It’s both dry and dull, and intensely gripping at the same time. This is a case with massive ramifications for the UK as whole and for Scotland’s place within it. It’s cannot be stressed enough just how important this case is, it will determine the nature of democracy within the UK. It will tell us whether Scotland’s democratic norms and traditions can be respected within the UK.

Brexiters are unhappy, although to be honest unhappiness is a base state with them. Never have a group of winners been so miserable since Better Together won the independence referendum. They are claiming that this case is all about stopping Brexit. But that’s not true. This case is all about stopping Brexit in the exact same way that a Scottish independence referendum is all about Scotland returning to EU membership. Certainly, those who pursue this case are hoping that it will strengthen their ability to prevent Brexit, just as many of those who seek Scottish independence hope that achieving independence will allow Scotland to join the EU in its own right. But fundamentally both those issues are about something far more important and far more profound. The trigger for this case is Brexit, the trigger for Scottish independence is Brexit. But Brexit, or rather preventing Brexit, is not the ultimate purpose.

This purpose of this case is about a much bigger and more important question than whether the UK is or is not a member of the EU. It’s about where sovereignty lies within the tattered assemblage of conventions, tradition, laws, and precedent which passes for the British constitution. Fundamentally it’s about British democracy itself. The UK has always preened itself on the quality of its democracy. Indeed the claim that democracy would be threatened if Scotland became independent, and that Scotland required the UK in order to guarantee the strength of our democratic institutions, was one of the core arguments of Better Together in 2014. However the way in which both this British Government and that of Theresa May have pursued Brexit have seriously called into question the strength of the UK’s democracy. Theresa May had to be dragged through the courts in order to establish the principle that it was Parliament and not her who could authorise Article 50. Boris Johnson has now been taken to court because he has prorogued Parliament with the transparent goal of blocking the functioning of Parliament because he is hell-bent on pursuing a no-deal Brexit for which there is no majority in the Commons.

This case is about determining where the ultimate seat of power rests within the UK. In effect, the position of the British Government is that the UK is an elective dictatorship in which a Prime Minister gains power on the basis of their party winning the largest number of seats at a General Election, and is then able to do pretty much as they please without subjecting themself to Parliamentary scrutiny. This Government believes that as the leader of the executive branch of government the Prime Minister has the right to avoid such scrutiny and to silence MPs when it’s convenient to whatever goal the Prime Minister may have in mind. This, they claim, is a matter of politics, not of law.

The plaintiffs in this case seek to establish that it’s the House of Commons which is the higher body, and the right of that body to question, scrutinise, and ultimately vote down the actions of the Prime Minister is paramount. They argue that the operation of that Parliament cannot be silenced by a Prime Minister merely because Parliament is likely to disagree with the executive. If that position were to be upheld by the Supreme Court, that would be the legitimisation of tyranny. Sovereignty in the UK rests with Parliament, not with the Prime Minister exercising the functions of the monarch. The Prime Minister is only able to exercise such functions in the first place because he or she commands a majority in the House. That is clearly not the case with this particular government and this particular prorogation.

The venom with which Brextremists have responded to this case is all the more ironic given that those who sought Brexit claimed that they were doing so in order to reestablish the sovereignty of the British Parliament. Yet now they are the ones arguing that the sovereignty of that parliament can be overruled by the Prime Minister. A Prime Minister who, let us not forget, does not command a majority in the House.

The inescapable fact here is that if the Prime Minister did possess an effective and working majority in the Commons, then there would have been no need for this case in the first place. It’s only because Alexander Boris de Pfeffel Johnson doesn’t have a majority that he prorogued Parliament, because by doing so he was able to escape parliamentary scrutiny. We saw in the brief few days that Parliament was sitting just how disastrous parliamentary scrutiny proved for the Government. The Government lost six votes, lost control of parliamentary business, and saw Parliament pass a law obliging the Prime Minister to request an extension to Article 50 from the EU – something which he has repeatedly stated, and is still stating, that he will not do.

If the Supreme Court rules in favour of the Government, the highest court in the UK will have agreed that the Prime Minister does indeed have the right to silence MPs for as long as he or she pleases, for whatever reason suits. That will be a deeply alarming development for democracy in the UK and what passes for a British constitution, and will signal the further descent of the UK into authoritarianism. It will show that there are no constitutional safeguards in the UK to protect us from a Prime Minister who does not respect those traditions, conventions, and precedents which form a part of the constitution but which are not enshrined in law.

More than that, the Supreme Court in London will have overruled the highest court in Scotland. Now it’s important to stress here that the Scottish judges in the Court of Session were very clear in their ruling that they had not found that the Government’s action was illegal because of any peculiarities of Scots law. The principles upon which they ruled the prorogation to be illegal were, in the opinion of the Court of Session, equally applicable in the law in the rest of the UK. However the overruling of the highest court in Scotland on a matter of fundamental constitutional significance will appear to many as Scotland being overruled by England, and a demonstration that there is no place within the UK for Scottish constitutional traditions. It will further strengthen the democratic arguments for independence, as it will provide proof that it is only through independence that Scotland can protect itself from the actions of an authoritarian British government with little electoral support in Scotland.

On the other hand, if the Supreme Court upholds the ruling of the Court of Session, it will have found that the Prime Minister acted illegally in proroguing Parliament. Parliament will not be recalled, the Supreme Court will have found that the prorogation was null and of no legal effect and so Parliament will still be sitting. The Commons could return immediately. The first order of business of what will be an extremely angry House of Commons will be to take action against a Prime Minister who had illegally abused his power in an attempt to silence MPs. Alexander Boris de Pfeffel Johnson will either have to resign immediately, or the Commons will start proceedings to impeach him. The UK will be embroiled in the biggest constitutional crisis in living memory. This destroys any pretence that opponents of independence might have had of claiming that Scotland requires the security and stability of the UK.

Meanwhile those English nationalists who seek to pursue Brexit will be furious at what they will see as Scotland overruling England. The opposition within the Conservative party to Scottish independence will diminish further, as they will perceive Scotland as standing in the way of what England wants.

The stakes are extremely high. The very future of democracy in the UK is at stake. But whatever happens, the British state and its institutions have been weakened and discredited. This chaos is not what anyone voted No for in 2014. Yet even if the Supreme Court does rule against the Government, the forces of English nationalist populism that Brexit has unleashed will not go away. Ultimately, the only way in which Scotland can guarantee its democracy is through independence and a written constitution.

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51 thoughts on “The future of democracy

  1. Another clear explanation Paul. Thank you.

    I do hope the Court of Session verdict is upheld so that I can have a break from Netflix or a good book and enjoy watching our glorious Union fall apart further.

    The MSM will have a field day, especially the red tops. Truth may be in short supply.

  2. Pretty much spot on Paul.

    If the SC finds for the Prime Minister then they are saying he is allowed to function above the law, all he has to do is say it is political.

    He can prorogue parliament any time he likes for any length of time. From the day after a GE to the day before the next GE if he wants, even for matters of political expediency alone.

    In other words a judicially underpinned dictatorship.

  3. It all boils down to two questions the SC judges have to ask themselves.

    1. Does the judiciary have a legal obligation to ensure that parliamentary sovereignty is ensured, that they have the final say on political matters?

    2. Is parliament’s ability to have that final say being materially or even existentially impacted by the executive’s action?

    If the answer is yes to both then they must find accordingly.

  4. Spot on, as usual, Paul. However, I had to take issue with your claim that “Brexiters are unhappy, although to be honest unhappiness is a base state with them.”

    I’m not! I voted for Brexit and have been tickled pink at all the shenanigans over the last three years. The implications for the Union (UK) of a simple yes/no poll with a majority for leave in England with a different result in one or more of the constituent nations was perfectly obvious from the outset. Imagine a referendum on the reintroduction of the death penalty on the same basis – a simple yes/no question on a majority basis. For what offences? What safeguards? How would executions be carried out? It is an impossible question – same with the EU poll – but with the added complication of constitutional sovereignty. The UK is not a country – merely a political and economic union between three nations and six counties of Ireland. Brexit was always going to be a choice between the UK and EU for Scotland, Wales and NI. England simply craves independence.

    As a Fifer living in Lancashire – with a strong desire to see the dissolution of Westminster and the UK – I voted to leave for completely anarchic reasons. Had I been living in Scotland, Wales or NI – I would have voted remain. My preference would be to see my country of birth step up to the mark and take responsibility for its own affairs as an independent nation within the British Isles – with or without EU membership. It is the British Establishment – Westminster, its master in the Square Mile – and all its agencies and institutions – that must be comprehensively annulled in its power and influence.

    I appreciate that the perspective on the north bank of the Tweed is completely different – but there were four reasons people in England voted to leave the EU…

    1) ATAD: Those who have some interest from a financial perspective. Especially those directly affected by the EU’s Anti Tax Avoidance Directive. This would have heavily impacted Britain’s dependencies and the financial sector. Whilst this is a minority group, they are very powerful.

    2) Immigration: Here there are subcategories. -Those whose livelihood has been genuinely affected by mass immigration (cheap labour, housing, etc). -Those who have a nationalistic/jingoistic agenda (still fighting the war). -And those of a xenophobic/ bigoted persuasion. -Individuals who believed 40 year of misinformation spread by various news outlets.

    3) Austerity: This group is made up primarily of those whose lives were directly or indirectly affected by 6 years of austerity. Their motivation was to punish the perpetrators of austerity who were also the champions of the remain campaign, namely Cameron and Osborne.

    4) Anarchists: Those, myself included, who were motivated by a strong desire to see the end of the UK as a rogue and corrupt entity on the global stage.

    Scotland doesn’t need an election or indyref2 – the decisive vote was the EU poll. The consequences were there for all to see from day one. It may be that the 2014 vote in Scotland has inhibited the ambitions of the SNP – had the Brexit vote preceded it, then I suspect we might be in a different place right now – but better late than never, eh?

    If Scotland were to declare independence, it would end the UK. It’s the only solution to the impasse.

    Get a move on please – I’ve sair ribs with all the laughing!

        • Alex Salmond: “If I had but known 5 years ago that BorisJohnson would become Prime Minister and Britain would be poised on the brink of a hard Brexit then I would have delayed the Scottish referendum and now looked forward to a 60% plus Yes vote…”


    • Thanks for that. I know people in the US who voted for Trump for the same reason as you voted leave. They have a similar attitude to the chaos ensuing – all very predictable. I refused to vote but knew as soon as the result was declared that I would be watching a monstrous car crash in slow motion for a number of years. I am still watching.

  5. In 1689 the Sovereignty of the English Parliament was passed. In1689 the Sovereignty of the Scottish People was passed. These were upheld in the Treaty of the English and Scottish Parliaments. The last time they were confirmed was a debate in the Commons on 4th July 2018.
    It was passed unanimously. Westminster Parliament is actually the ENGLISH parliament as it was not put into abeyance like the Scottish Parliament. The Scottish Parliament was reconvened on devolution.

  6. Excellent review. This case is where the duplicity of the Act of Union is exposed. No matter what the outcome, the differences between what it does and what it says it does will become greater. Which will fuel populists on both sides of the border. These are extremely interesting times.

  7. The UK is not a democracy, as it has an unelected head of state – who exercises real powers at the top of the political system – and an unelected second chamber. At best the UK is only a part democracy.

    In 1963 the Queen and Conservative Prime Minister Harold Macmillan (in effect an electorate of two people) put Lord Home in place as the next Prime Minister. He stood down from the House of Lords and became Sir Alec Douglas Home. But until he won a by-election a few weeks later he was not a member of the Commons. So for those weeks the UK had a Prime Minister who was not a member of either House of Parliament. The UK has nothing to preen about.

  8. You may recall that when we were discussing the risible 15 bullet point Yellowhammer ‘Contingency Plans’, as the lad in the suit at the Ministry of Truth NNC Breakfast sofa described this arrogant piece of toss,9he’ll get kept on in Brexit Britain btw) I pointed out that there must be a tome of source documents behind the headline points on this single A4 ‘Management Summary’.

    Every Government Department, the Banks, Finance, Health, Police, emergency services, Transport, Industry, the armed Forces, LA’s and so many many more Stakeholders would have had input into this No Deal Impact Analysis, yet no scribe or broadcaster followed this up.
    Drip drip drip.
    It is reported that Private Eye has revealed that as part of Yellowhammer, that thousand of local government officials will be seconded to London to deal with the massive fall out of No Deal, and their post will be filled by Army personnel.

    So there are detailed plans which theBlue Tories have not released, and now we know why.

    The British Army will be running Glasgow Council?
    Just like Egypt or Pakistan, England and Wales will be under a military dictatorship.
    Not Scotland, mind. If there is not an immediate announcement to launch Indyref 2, I doubt that I’d be alone is going ahead, whether the Holyrood Administration likes it or no’.

    I repeat, regardless of the outcome of the SC hearing, the do doo will hit the fan by Friday.
    The UK under Martial Law.

    Let’s hope Russia doesn’t attack after October
    Staplers and biros will not repel the Johnny Furriner.

  9. Another fabulous article Paul, clarifying the current situation. Thanks for that.

    Lord Keen stated that LBJ would abide by the outcome of the court case. Then one of the Judges (no daft) asked Lord Keen if it was possible that Johnston would prorogue Parliament at a later date. Keen didn’t know. He was then asked to put the question to Johnson and get his answer in writing. Ha ha.

    Joanna Cherry was interviewed by Jon Snow on Channel 4 tonight. Commenced with him exhibiting his very Englified bias and lack of knowledge. Joanna Cherry laid it all on the line including the repercussions of the decision whatever way it goes, such as leading to an Independent Scotland. It would be great if someone could get the interview on here. Legerwood?

    • Petra,

      CH4 news has not updated its website yet – still full of last nights items. The interview is part of a longer item on the Court case and is on YouTube – 4.10 min in – but I dont want to put a link in case I muck up this website.

      As to Lord Keen, I am not really sure he did say clearly and unambiguously that BoJo would abide by the verdict of the course if it went against him. He seemed to use a form of words, as only solicitors can do, that left plenty of wriggle room. Maybe I am being a bit cynical but to me it sounded as if BoJo might appear to accept the verdict but would then try to find a way round it. Could be wrong.

      If CH4 updates their site soon I’ll post the link.

      • Thanks for taking the time to dig that out Legerwood. Joanna Cherry is one massive asset to our cause. Well worth listening to folks. Around 4 mins in.

    • Petra,
      This is what Lord Keen said when asked if the judgement went against the PM

      “”The Prime Minister will respond by all necessary means to any declaration that the original prorogation was affected by any unlawful advice that he might have given for the purposes of the original prorogation””

      It is the ‘respond by all necessary means’ that sort of rings alarm bells. Is that necessary to comply or necessary to get round the judgement and do what he wants? Then the words ‘original prorogation’ does that mean there will be another attempt at a propagation? I think the question from the judge as to whether there would be another prorogation may have been prompted by that ‘original’. But who knows. Maybe I am reading too much into it but you know, lawyers and words.

      • And thanks for clarifying this too Legerwood. I’d heard Lord Keen reply to the Judge but things move so quickly, with one trying to hold onto what they go on to say, that this was the (false) impression that I was left with. Lawyers “speak” right enough. Why can’t they just keep things simple, lol, instead of using such convoluted language? Maybe that’s why they frequently get called liars, instead of lawyers? Slippery or what?

        Well “responding by all necessary means”, could even relate to his comment of “rather being dead in a ditch.” Seriously however, I’d reckon that if he was going to comply Lord Keen would have said just that. Johnston and Cummings will no doubt have a plan and maybe that related to them “complying” initially and then suspending Parliament again. Who knows? All I can say is that the Scottish Judges, via LBJ, have opened a constitutional can of worms, it’s resulted in an education for many and leads me to lauding Nicola Sturgeon for not jumping the gun, especially when she’s been under such pressure to do so over the last three years.

  10. Remember that whatever the Supreme Court decision is , the Supreme Court will not have made any new laws ,they will just be saying what the current law allows .

    Whatever decision is made it is worth remembering that the current law has always allowed this to happen and it therefore may well happen again.

  11. Lots of superb articles recently Paul. Just one pendantic point, the ruling was that the prorogation was ‘unlawful’, not ‘illegal’, and I’m not totally sure, but I think you get thrown in the jail for the latter, but for the former there isn’t actually a punishment, the Inner House didn’t even say he had to unproprogue parliament, just that his actions were wrong. The PM would have to be charged with some crime for it to be illegal I think. Pedantic, but then, we are all learning so many interesting legal things these days. The outcome of this Supreme Court case will indeed be very important for the future.

  12. I’m in agreement with everything you say Paul, but even if the Tory ground troops are less bothered about Scotland leaving the Union, the top brass know fully well that it is the cash cow for the Union. I’m not sure how we get past this.

  13. If I might paraphrase you , Paul :

    If the Supreme Court finds for the Government – then the Union is F*cked !

    If the Supreme Court finds against the Government – then the Union is F*cked !

    This seems eminently agreeable to me !

  14. This, as they say, could go either way but I was a little impressed that today, the presiding woman judge – Lady Hale(?) was able to quickly demolish Lord Keen’s point about the prorogation of parliament by the Atlee Government, citing it as precedent.

    She responded to his point by remarking that in that case, it had been a majority government ( with a massive majority, I believe ) which knew that its legislation would be held up by a highly partisan HoL which was wholly hereditary. I don’t think she actually said so, but the point was well made that the circumstances were quite different and the prorogation then, was about actually upholding democracy with elected members against a reactionary House. Good for her.

    • Anyone else think that Lord Keen QC was looking a little hot under the collar today?

      And that many viewers of the Scottish versus English legal cases / system must be confused when the hear Lord Keen speak with a Scottish accent?

      Same too for viewers of Newsnight, tonight, when Lord Falconer, with his Scottish accent, was getting his points across. And then Joanna Cherry SNP QC never off of our screens now. One thing for sure is that many people, north and south of the border, must be getting their eyes opened to the fact the we Scots don’t live in some kind of an uncivilised backwater stocked with a bunch of ignoramuses. That said it’s this kind of thing that I reckon leaves the SC Judges sitting between a rock and a hard place or as Millsy says, “feffed if they do and feffed if they don’t.”

    • Lady Hale did indeed say that the House of Lords was completely composed of hereditary peers when Atlee was Prime Minister. She did not skip a beat when she demolished Lord Keen’s argument. I have a funny feeling she actually enjoyed doing it too.


  15. oh! so true, Paul … oh! so true …. my gut feeling though is that the Supreme Court will “bottle it” and say “we can’t interject into Parliamentary matters ,,,”

    If only the UK “Supreme Court” (Sic !) had the teeth that the American or Canadian equivalent has, you would see an unambiguous decision.

  16. Horrified to see C4’s Jon Snow’s ask Joanna Cherry “But the majority of the Supreme Court are indeed English judges, your Scots are outnumbered?”
    As a traditionally honest and intelligent reporter, the mask slipped to reveal he is not immune to ignorance and assumed superiority, the SC case is not a football match between two tribes half a world apart, but a legal case of critical importance to governance of ALL the UK.
    Cherry didn’t skip a beat in correcting him that nationality was irrelevant and the CoS judgement was rendered under both English and Scots Law, but it should never have had to be explained in the first place.

    • exactly , well said, the thing is the truth by which I mean the correct legal decision, is already there it’s just a matter of the lawyers and judges actually finding it through the legal framework and only then will we see who’s lap it sits in

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