A boring lawyer writes

It’s all down to the Supreme Court. The Court of Session’s conclusion is the opposite of the decision of the English High Court, which was a very distinguished panel (the Lord Chief Justice, the Master of the Rolls, and the President of the Queen’s Bench Division).

If you’re interested in numbers, as things stand three judges have ruled against the Government and five judges have ruled in favour of the Government. So it’s obvious that views can vary. But none of this matters because the Supremes will sort it all out next week.

I was discussing this with a very senior judge the other day and I would expect the Supreme Court to overturn the Scottish decision and uphold the England/Wales decision. Essentially this is because when and why and for how long Parliament is prorogued is governed by political convention, not law. And it is very well established that political conventions are not enforceable by legal action. The Supreme Court has already pointed that out in the original Miller decision.

For those with a longer attention span, the key discussion is at para 141 and following. Some critical passages:

“ … it is necessary to consider the role of the courts in relation to constitutional conventions. It is well established that the courts of law cannot enforce a political convention. In Re Resolution to Amend the Constitution [1981] 1 SCR 753 , the Supreme Court of Canada addressed the nature of political conventions. In the majority judgment the Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated at pp 774 to 775: "The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time, is inconsistent with its legal enforcement." …

“Attempts to enforce political conventions in the courts have failed. Thus in Madzimbamuto v Lardner-Burke [1969] 1 AC 645 , the Judicial Committee of the Privy Council had to consider a submission that legal effect should be given to the convention which applied at that time that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the Legislative Assembly. In its judgment delivered by Lord Reid the Board stated at p 723 that: "That is a very important convention but it had no legal effect in limiting the legal power of Parliament. It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid."

More recently, the political nature of the Sewel Convention was recognised by Lord Reed in a decision of the Inner House of the Court of Session, Imperial Tobacco v Lord Advocate 2012 SC 297 , para 71.

145. While the UK government and the devolved executives have agreed the mechanisms for implementing the convention in the Memorandum of Understanding, the convention operates as a political restriction on the activity of the UK Parliament. Article 9 of the Bill of Rights, which provides that "Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament", provides a further reason why the courts cannot adjudicate on the operation of this convention.

146. Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question (as in the Crossman diaries case - Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 ), but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. As Professor Colin Munro has stated, "the validity of conventions cannot be the subject of proceedings in a court of law" - (1975) 91 LQR 218, 228.

We shall see.

Posted By: Old Git on September 11th 2019 at 13:02:22

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