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Y’day Court of Session ruled against prorogation. Striking unanimity of 3 judges. Overturned initial Outer House decision that prorogation nonjusticiable (not legal q for Court to decide). Another case at E&W High Court prorogation also deemed nonjusticiable. Confused? Thread. 1.
CoS decision has potential long term implications (see both Elaine Motion and Stephen Tierney in scottishlegal.com/article/inner-… and follow @AileenMcHarg 2.
Lots of ppl swiftly said prorogation ‘lawful’ after High Court + initial ‘Outer House’ CoS decision. Y’day’s decision v.impt and elected politicians are perfectly right to engage on the issues. But overquick responses from some commentators have generated wider confusion. 3
Will take time for legal process to unfold. Full reasons for j’ment (due tomorrow) and next week’s appeal to Supreme Court (SC) UK. And consider on UK’s potentially confusing pol and legal structure. Plus SC, finds itself in an unwelcome politically exposed position. 4
GB has 3 P’ments and 3 nations (or 4, including ‘Britain’), but 2 territorial legal jurisdictions: ‘EnglandandWales’ and Scotland. NI also has its own jurisdiction, making a total of 3 in the UK State. 5
The separate and coexisting E&W/S/NI jurisdictions have deep historic roots preserved in the 2 ‘unions’ of E and S, and of GB and Ireland. They predate devolution. None is ‘above’ any other. Ultimately, appeals from each jurisdiction can go to the Supreme Court of the UK. 6
‘Union’ legal structure is unusual. Some other ‘multi-level’ states have a ‘federal’ jurisdiction for the whole state and distinct jurisdictions for the parts. 7
(On Wales, devo is raising questions about operation of single E+W jurisdiction with two primary legislatures- ukconstitutionallaw.org/2018/10/05/dan… ) 8
Prorogation-related cases have come up in all 3 territorial jurisdictions. Prob to be expected given the serious nature of issues. Today, McCord lost NI case at first instance (as in Scotland), but NI appeal will be heard quickly. Likely also to end up in SC. 9
Helpful explainer from IfG (although perhaps confusing, I wdn’t call the differences between E & S judgements ‘counterintuitive’). Striking though Inner House CoS decision may be, courts ‘can and do’ differ on questions of law 10
SC will consider all cases together next week. Since this is not a ‘devolution issue’ SC sits, in effect, as a Scottish court, an E+W court and in all likelihood an NI court. Issues set in context of these jurisdictions. 11
Will SC come to one decision about lawfulness of prorogation for all jurisdictions, or different decisions across them? (Cherry QC emphasised distinctive Scots tradition on P’ment holding exec to account, we don’t yet know how judges viewed it). 12
SC, of course, decides on the law, but all outcomes are likely to have big political (+constitutional) impacts. Deciding prorogation unlawful would be a big deal. Even bigger if based on law in only 1 or 2 jurisdictions. But overturning unanimous CoS cd impact pols in Scot. 13
Happy or not about yesterday’s result, all eyes shd be on next week’s Supreme Court hearing. Making sense of the situation is not easy and the stakes are huge for Brexit, the role of the Courts and territorial constitution/future relationships across E/NI/S and W. End.
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