Hi EmmDee,
Why do you think that it will probably be reversed by the SC?
Any chance that you can elaborate on your tantalising edit please?!
Hi,
So - to start with (apologies if you are already aware of all of this), there are significant differences between English and Scottish law; both in terms of the whole basis of the law but also in terms of the conventions around the legal system's interaction with the executive and vice versa. English law has long standing conventions that the courts shouldn't stray into matters for the executive and vice versa. Scottish courts don't place such tight restrictions on themselves. In both cases (and Northern Ireland), the Queen and decisions made by her are not subject to judicial review - though the Queen acts on the advice of her PM
The first case brought to the English High Court last week tried to claim the 5 week shutting down of parliament was unprecedented and illegal. The court ruled, not that the action was legal, but rather that the length of the prorogation was a political decision and therefore not a matter for the court ("non justiciable" is the phrase). That case is being appealed to the Supreme Court.
The Scottish case was slightly different. The case here was not to do with the length of prorogation but rather it questioned the validity of the advice. Essentially the case was that the PM was not honest about the reason for the prorogation - rather than the stated case of being to prepare for a new Parliament, it was actually done to stifle Parliament's oversight of the executive. Crucially, the Government failed to lodge a sworn statement to justify the decision. David Allen Green (follow him on twitter if you like this sort of stuff) spotted this during the case - he likened it to the Sherlock Holmes case where the biggest piece of evidence was actually the lack of what should be there - "The dog that never barked". The Scottish judges took an inference from this that because the Government couldn't provide (or wasn't willing to) a sworn statement that they did indeed have a reason for the advice other than the one publically stated.
Both of these case are now going to the Supreme Court. Up to a couple of weeks ago, any legal commentators I have read in the UK, gave little hope to an appeal to the Supreme Court i.e. after the English High Court case. The thinking being that the Supreme Court would take a similar "non-justiciable" view. The Scottish case raises the chances from 0% to something else but who knows what. It is still an act of the executive being challenged in a UK court which historically is slow to interefere in the executive. It is complicated by the fact that the Scottish case also used civil law standards which would be valid in England and was brought on a different basis to the English case. So while I say the balance of probabilities is that it won't succeed, it is certainly not zero. And in fact - given the track record - I wonder if it brings a significant risk of unintended disclosures during the case i.e. another "dog that won't bark" - or an order to provide documentation. So even if it doesn't succeed, it has the potential to backfire on BJ
As to my edit - I was referring to the Dominic Grieve "Humble Address" that he got through Parliament on Monday before it closed. It essentially required the Government to publish the advice about a no deal exit (Project Yellowhammer) and to publish all correspondence between Ministers and named advisors relating to the decision to Porogue - both on official communication channels AND private/personal. You may have seen a lot of noise last night about the publication of the Yellowhammer document (essentially confirming the leaked document published by the Sunday Times) but the Government refused to publish any internal communications (citing privacy).
The latter is the bit, I think, Grieve was really after. The rumour / suspicion is that there were explicit discussion about using Porogation as a tactic for Brexit. Which would both confirm the judgement in the Scottish courts AND explain why no Minister or Civil Servant was willing to swear evidence into the court. There is also rumour / suspicion that Cummings and others are avoiding formal Government channels such as email and instead using burner phones, encrypted messaging etc to avoid leaving discoverable evidence.
I think the release last night was really just a distraction - though politically terrible for the Government. The real jeopardy for BJ is if, as I suspect will be the next step, a case is brought to attempt an injunction to force the Government to comply with the release of communications. That has the potential to be open up a can of worms
Apologies for that - bit long. I would definitely follow David Allen Green on twitter (also in the FT and has blogs) if you're into this type of thing - there are a number of other UK QC's also commentating on twitter - legal Twitter is pretty active these days!!!
