London: There is not one single legal system in UK. There is English law, Northern Ireland and Welsh law, and Scottish law; the latter’s differences came to the fore this week when three Scottish Court of Session judges ruled that Boris Johnson’s current prorogation of Parliament was unlawful, because they decided the reason for prorogation was to stymie parliamentary scrutiny.
Subversive headlines have suggested that Johnson misled the Queen about his reasons for suspending Parliament, which Johnson has absolutely denied. Curiously, only a week ago, Lord Doherty in a Scottish Court did not accept that prorogation had contravened the rule of law, His Lordship thought the power to prorogue is intra vires with the Prime Minister, that the decision to prorogue was “inherently political in nature” and there were no legal standards to judge its legitimacy. Similarly, a few days later the High Court in London dismissed a claim against the suspension and ruled it was indeed lawful. There is speculation that although the recent Scottish ruling conforms to Scottish law could it have been premeditated? The impartiality of the judges has been a topic regretted by the Prime Minister. Now the legal challenge has been accelerated to the Supreme Court on Tuesday, 17 September.
The Northern Ireland Court dismissed another Remainer case to make No Deal illegal, Lord Justice McCloskey rejected the argument that the Good Friday Agreement (1998) is tied to UK’s membership of the EU, a welcome victory for Brexit.
If the SC finds the prorogation lawful, Parliament remains prorogued as declared until 14 October. Should the SC find it unlawful, either the Court forces the government to recall Parliament and begin a new session with a Queens Speech setting out the legislative agenda; or the court might feasibly decide prorogation was a “nullity” and Parliament goes back to where it left off on 10 September. The mishmash gang of MPs, who are against Brexit and prorogation, did not vote against adjourning for the long summer recess, yet four extra days added to the usual prae-conference recess seem intolerable. So far MPs have spent 500+ hours dithering about Brexit, but no upcoming party conferences have been called off to allow for further dithering; these rebel MPs are stalling, objecting and avoiding decision making about what they actually want, but they have successfully handicapped the Prime Minister, for the time being. The rogue Surrender Act (Withdrawal Bill No. 6) insists that if the PM is unable to get Parliament’s support for No-Deal or an agreement, on or before 19 October, he must ask the European Council for another Brexit extension, but critically it does not outlaw No-Deal during the extension.
Folks in the know are sure that all the above has been factored into No. 10’s planning. If Johnson recalled Parliament for a vote of no confidence and he remained PM, technically he would be obliged to ask for an extension, but then he would have fulfilled his obligation to the Act. He could immediately claim that it was Parliament’s wish and not government policy, thus it had no bearing.
As far as a new deal goes, there is speculation about an “All-Ireland Backstop”, an idea that has previously been acceptable to the EC, but unlikely to be acceptable to the DUP. This would mean that Northern Ireland alone would continue to be aligned to EU customs and regulations for agricultural products only, in order to stay in a single market to maintain the all-important “all-Ireland economy” and open border. It would however create a border in the Irish Sea between England/Scotland/Wales and Northern Ireland. Sources say the only way to give political legitimacy to this would be for the DUP to call for Sinn Fein to end the Northern Ireland Assembly boycott, then hold a vote in Stormont on the All-Ireland Backstop. Westminster is keen to get the Stormont Assembly operational again.
The speculation only addresses half the problem. It omits governance/VAT/industrial regulations plus a host of other EU legislative quandaries, and it also introduces another problem in that Scotland might demand a similar arrangement, something that Nicola Sturgeon has already mooted.
Johnson campaigned on delivering Brexit, unifying the country and keeping Jeremy Corbyn out of No10. An election is still on the cards in October/November and Johnson might deliver the last pledge first, as the Brexiteer vote is coalescing around Johnson.
This week YouGov put voting intention at 32% for Conservative, 9% ahead of a disunited Labour party. Folks are seeing the Brexit Party and the LibDems as single-issue parties on opposing sides, with no substance for governance.