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Made it to Court of Session in time for today’s emergency request for action on proroguing Parliament. Petitioners’ représentative - for 75 parliamentarians - rises.
Petitioners Counsel: seeking declarator (declaration) that it is unconstitutional & ultra vires (outwith powers) to for UKGovernment to shut down parliament blocking debate & action regarding No Deal Brexit.
Counsel: we are seeking an urgent decision suspending the order intending to prorogue Parliament issued in the name of the Queen yesterday.
Counsel: This action is unprecedented. That is because actions of the UK Government is unprecedented. Action needed from the court to uphold the rule of law.
Counsel: We’re told we have a political constitution of conventions. Our view is we have a legal constitution - with legal limits. Government must uphold representative democracy, with the Union Parliament that is sovereign.
Counsel: Government must be accountable to Parliament. Legally, it is accountable to this court. Court must intervene to uphold this constitutional accountability.
Counsel: We apply to this court as one of the three pillars of the state to uphold its constitutional function.
Counsel: It is clear that even though the Queen has signed a proroguing order it is open for the courts to review & potentially overturn this as unlawful.
Counsel: We have 76 petitioners. 75 are members of the House of Commons & Lords on a cross-party basis. They are asking this court that the government stays within the legal powers allowed by the constitution.
Counsel turns to whether the courts should overturn this political decision: Fact legal decisions cause political fallout should not mean this court does not do its duty.
Counsel: Advice given to Queen is reviewable by courts. Cites legal precedent to this (case of Barclay). Before UKSC in 2014 on ECHR compatibility of Channel Islands legislation. Royal Assent was given, & it was the Privy Counsel advice that was challenged. Lady Hale upheld.
Counsel: The UK Supreme Court in Barclay unanimously found that Privy Counsel advice to the sovereign is judiciable - open to legal challenge. (Para 57-58, Lady Hale quoted)
Counsel: This case is directly on point with what we have here [in this case of proroguing having received royal consent].
Counsel: cites Privy Counsel decision of 1980, T.Cheng&Co v public prosecutor of Malaysia. Re: declaration of emergency legislation powers. Was the emergency law made by the sovereign without Parliament lawful? Lord Diplock quoted - abuse of discretion places obligation on 👑.
Counsel: The sovereign is not above the law, this has always been the tradition in Scots law. This is not an autocracy, of divine right. There is a duty of a constitutional monarch to revoke orders based on an abuse of power.
The petitioners case is partly based on the independent Scottish constitutional tradition that the monarch is in part subject to public responsibilities - to the people & the law. Her role is to serve, not to rule.
Counsel repeats what declarator (decision) they seek: that proroguing Parliament in this way is illegal, & a temporary decision (interim interdict) to prevent this.
Counsel quotes 1840 🏴󠁧󠁢󠁳󠁣󠁴󠁿decision of Lord President Hope: Supreme Courts of every civilised country have power to compel every person in our noble constitution the law can compel the sovereign himself to do his duty & to restrain him from exceeding his duty.
Counsel: Idea that a Scottish Court cannon bind the Parliament in London is nonsense. Sovereign exists in Scotland, & is subject to its court. Actions are now also being raised in England & Northern Ireland.
Counsel: We are a multi-national polity. The Scottish Courts hold the Crown to account subject to Scots law. This is how it should be - through each of our jurisdictions & nations.
Counsel: The 1707 Union did not abolish or subordinate Scottish Public Law to that of England. There is a distinction Scottish legal tradition, as maintained.
Counsel: Let’s turn to Scotland’s constitutional traditions. First, the Claim of Right 1689: an act of the Scottish Parliament. It states: we live in a legally limited monarchy. The regale power cannot be used in violation of the Kingdom.
Counsel: The Claim of Right said ‘evil & wicked counsellors’ could not abuse the legal basis of the constitution of Scotland. Petitioners joke that it is too tempting to consider the similarities to events yesterday.
Counsel: The Claim of Right raised problem of prorogation of Parliament being used as an abuse of power by the Crown. As remedy it states: Parliament must be allowed to sit. Petitioners say this is crucial: prorogation cannot be used to prevent Parliament doing its job.
Lord Doherty asks if there are most recent precedents of prorogation being used as an abuse of power. Counsel says the situation we are in is unprecedented.
Counsel for petitioners says the only equivalent to current abuse of power by Boris Johnson was those by James VII & Charles II.
Counsel: The Glorious Revolution made the Crown subject to Parliament & the rule of law. The powers of the executive are not unlimited: we do not live in a totalitarian state. Fact power is ‘prerogative’ does not block judicial review.
Court has risen until 2pm for lunch. Enough time for a sandwich & a phone recharge! 😅
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