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.
My new book has just been published by Vagabond Voices. Containing the best articles from The National from 2016 to date. Weighing in at over 350 pages, this is the biggest and best anthology of Wee Gingerisms yet. This collection of pieces covers the increasingly demented Brexit years, and the continuing presence and strength of Scotland’s independence movement.
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