It is extraordinary that we now have two conflicting judgments on the validity of the Queen’s prorogation of the UK Parliament. The High Court in England has decided that the prorogation was not judiciable. But shortly after that, in Scotland, the Inner House (an unfortunate name for a court perhaps, as just a little too redolent of a hidey hole for a traitor of the papist variety) decided the opposite, declaring the prorogation unlawful. The summary provided by the court indicates that Lord Drummond Young thought that:
The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.
Well. Pretty much every loyal English man and woman will conclude that the only inference to be drawn from this extraordinary intrusion of the law into politics is that the judges of the Inner House wished to restrict the implementation of the result of the Brexit referendum. Just as everybody with any political nous at all knows that the real objective of the plotters is not to prevent a “no deal Brexit”, but to prevent any Brexit at all.
Both decisions are being appealed to the Supreme Court (until recently known as the House of Lords), which will sit next week. If the Supreme Court follows the same line as the recently retired Lord Sumption it will decide that the issue is not judiciable, and that the courts should not interfere with political decisions.
In the meantime, Downing Street has been criticised for remarking the blindingly obvious: that the Remainers chose to bring a challenge in Scotland for a reason. Does that remark impugn the independence of the Scottish judges? Perhaps. It recognises the reality that the most of the establishment in Edinburgh (the politicians, the lawyers, the doctors, the journalists etc) would rather be a lackey of the EU than a junior partner in the UK, and that in the months ahead these judges are going to have to sit around the dinner table with their establishment friends and family. That preference might seem perverse, but since Jacobite times and before there has been a recurring sentiment in Scotland that any enemy of England (and the EU is starting to look more and more like an enemy of England) must be a friend of Scotland.