By Alec Ross
I remember when the whole Rangers Tax Case thing kicked off over seven years ago. What really struck me about that was the way everybody and his dog became an expert in tax and things that you’d never heard about (employment benefit trusts, CVAs, “side-letters” & taxable income) suddenly became common parlance in the pub and in the workplace.
This being Scotland, discussions about legal processes around the proroguing of Parliament and the wider Brexit omnibouroch, along with the implications for Scotland’s place within the UK, were never going to get quite the same attention as the implosion of one of Scotland’s oldest footballing and cultural institutions.
That said, it is on the radar.
I’m not sure what time the Supreme Court judgement on the Proroguing of Parliament is made today, but here’s how I understand it (legal folk – help me out here).
Last week, Scotland’s highest court – the Court of Session – ruled unanimously that the proroguing was unlawful.
The reaction was interesting – there was an immediate assumption that there was some sort of hierarchy of courts and that this being Scotland, ours was a pretendy wee court, a bit like our parliament, and that the judgement was only “advisory”.
Not so, for a number of reasons.
Firstly, there is no hierarchy of courts. Parliament is answerable, equally, to every court in these lands.
Incidentally, we can dismiss any claims of judicial bias. Lawyers hate going anywhere near politics. The fact that they did means that they were certain there was a case to answer, and the idea that this was some kind of remoaner / independence movement is just ludicrous and insulting. The idea that these guys would be putting on the woad on a Friday night and watching Braveheart is for the birds).
Secondly, there’s a strong historical aspect to this. Scots Law is protected under the Act of Union of 1707. The argument is that the Scottish Parliament wasn’t dissolved – it was simply moved to London and became part of a larger parliament.
But the legal principles underpinning it haven’t changed – and under Scots Law, Parliament, not the executive (the Prime Minister) has the power to prorogue. This may well have been a factor in the Court of Session judges’ thinking.
And finally, what’s really interesting is that, given that Scots Law is protected under the Act of Union, a decision by the Supreme Court today to allow the proroguing means, I think, two things.
Firstly, it says that the Supreme Court knows more about Scots Law than three eminent Scottish Lawyers do.
And secondly, it breaks a fundamental pillar of the Act of Union – the recognition and protection of Scotland’s unique legal system.
All of which would mean that, on the eve of the fifth anniversary of the first Independence Referendum, the union would effectively over. At the very least, we’d have, in the words of the song, “Grounds for Divorce”.
For all Willie Rennie’s anti-democratic and logic-free blustering and Jo Swinson’s rank hypocrisy, Scotland has a whole pile of mandates for a new plebiscite. A pro-independence majority in both Edinburgh and London, a manifesto, a section 30 order – and, of course, Brexit.
A judgement allowing proroguing goes, however, further. By breaking the terms of the Act of Union, it effectively annuls that union.
It would be not so much a mandate for voting for independence, but a mandate for independence itself.
Hold onto your hats, people. This is about to get interesting.