They’re at it again. Not content with attacking the foundations of the devolution settlement, the latest Conservative wheeze for winning the hearts and minds of the people of Scotland is to attack the foundations of the Treaty of Union itself. Stung by the use of the courts in order to hold his government to account, most notably when the prorogation of parliament last autumn was ruled unlawful, the Conservative government of Johnson has embarked upon a review of the powers of judicial review.
Judicial reviews exist in order to provide a legal check that a government or its officials are exercising their powers in a fair, lawful way, for the purposes for which such powers were intended, and without exceeding their authority. It was a judicial review which found last autumn that Johnson’s government had exceeded its power and authority when it unlawfully prorogued parliament in order to prevent MPs from holding the government to account over Brexit. This review was initiated in the Scottish courts by the SNP’s redoutable Joanna Cherry MP.
Naturally Johnson and his puppet master Cummings are not at all happy with anything that can restrict them. The British Government has now announced a committee to examine the power of judicial reviews. The committee is to report its findings before Christmas. This is clearly a part of the commitment that the Conservatives buried away in their manifesto for the last election that they would seek to restrict the ability of the legal system, parliament, and the people to hold them to account. The Tories talk a lot about grievance mongering on the part of supporters of Scottish independence, but the greatest practitioners of manufactured grievance in the UK are the Conservatives themselves. How dare anyone try to hold them to account. How dare anyone try to ensure that they remain within the law. In their own eyes they’re the real victims here.
Johnson’s government’s aim is to reduce the power of the courts and hem in their ability to hold the government to account. In other words, Johnson and Cummings want to limit the ability of the courts to rule that they are acting unlawfully or that they have exceeded their powers. Where the courts no longer possess an effective power of judicial review, a government will be able to act unlawfully. And it will.
That would be bad enough. However the review is not to be restricted to the English legal system, which also covers Wales. It is also to encompass the Scots legal system. The reason for this is that the British Government is answerable to courts everywhere in the UK, so if Johnson succeeds in his bid to restrict the powers of the English courts, someone who believed that Johnson and Co were acting unlawfully – again – could simply use the courts in Scotland. This is what happened in the prorogation case last autumn, when the case was heard in the Court of Session in Edinburgh.
Unfortunately for Johnson the independence of the Scottish legal system is one of the fundamental guarantees of the Treaty of Union. Article 19 guarantees “That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same Authority and Priviledges as before the Union…” This article has always been understood as the guarantor of the independence of Scots law. Until now, no British goverment has attempted to undermine it in such a blatant way.
The independence of the Scottish judiciary causes problems for Johnson because it means that there is an independent authority within the UK which is able to rule that some of his actions are impermissible. This is not a government which is prepared to recognise any limits on its power and sovereignty. So for all their preaching about how precioussss the union is to them, the Conservatives are now not only embarking upon a power grab at the expense of a devolution settlement which they promised could only be altered with the express permission of the Scottish Parliament, they are now also attempting a law grab at the expense of the Scottish legal system. Moreover one which is in direct breach of the treaty which established the UK in the first place. For a government which claims it seeks to make a positive case for the union, it’s really not making a very good fist of it. The only fist evident here is the one that the Conservatives are using to punch Scotland in the groin.
Johnson and the Brextremists in the Conservative party did not seek to “take back control” from Brussels in order to strengthen democracy in the UK. They did so because they could not countenance any restrictions on the absolute power of a British Government. They have consistently sought to sideline parliament, they have embarked upon an assault on the devolved governments, and now they’ve turned their guns on the legal system. This is a dangerous development in a state such as the UK where there is no codified constitution and little to restrain an authoritarian government which is willing to trash the precedents, customs, and practices which have previously passed for checks on the absolute power of the Prime Minister.
We are now witnessing a direct attack on the very basis of the Treaty of Union. The foundational document of Scotland’s place within the UK is now itself threatened by a government which hypocritically preaches about how much it loves the union.
The case for independence has now moved on from the claims and counter claims of the referendum campaign of 2014. Then the arguments were all about currency, about the need to prove that the average Scottish family would be better off by the price of a weekly Chinese takeaway. British nationalists still want to make it about those things, because they seek to blind us all with manipulated statistics. But the real case for independence is now about the very basis of democracy itself. It’s about ensuring that Scotland has a government which is answerable to the people of Scotland. It’s about ensuring that the government in Scotland acts lawfully and does not exceed its powers. It’s about having the guarantee that those in power and authority use those powers for the purposes for which they were intended. We can no longer be certain of any of those things within the UK. The campaign for Scottish independence is a campaign to secure the fundamentals of democracy itself.
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