Sunday National, 15th September 2019.
So we’ve reached the Henry V stage of Brexit. In Act IV Scene 2 of Shakespeare’s history play, as Jack
Cade’s rebels march into London, Dick the Butcher utters an immortal line which has resonated
down the centuries. “The first thing we do,” he said, “let’s kill all the lawyers.” This week, Dick the Butcher has been reincarnated as thick-cut, union jack branded Tory gammon.
Confronted by the surprise conclusion from the Court of Session on Wednesday that the Prime
Minister prorogued parliament unlawfully, behind the scenes and in front of the cameras, Brexit’s
roundheads started burbling excuses and bandying about accusations of bias. This reaction was
sinewed with the strain of paranoid thinking which now characterises the rhetoric of Boris Johnson’s
Low altitude flyer, Andrew Bridgen MP, claimed “there will be a suspicion that political pressure mayhave been placed” on the three senior Scottish judges who ruled against the Prime Minister. Señor Patata didn’t specify who might have applied this pressure – but it is safe to assume that the empty barn of his brain cavity is haunted by the laughing shadows of Scottish nationalists and scheming Remainers, determined to frustrate the sovereign will of the British people.
In a crowded field, Kwasi Kwarteng’s contribution wins the Mealiest Mouth of the Week award.
Speaking to Andrew Neil, the Tory Cabinet minister stressed he wasn’t accusing Lord Carloway and
his two colleagues of any bias, but that “many people are saying that the judges are biased.”
According to Kwarteng, this is because “the judges are getting involved in politics” – though he,
naturally, isn’t suggesting that. He’s just “saying what people are saying.” Because this is the job
description of the Minister of State for Business, Energy and Clean Growth. The humble scribe of the
golf club bore and barrack room lawyer, he’s obliged to repeat on national television allegations of
impropriety he personally rejects, because that’s what responsible cabinet ministers do.
We have been here before. Back in November 2016, the Daily Mail branded three judges of the
English High Court “enemies of the people”, after the court concluded the UK parliament must be
involved in kick-starting Brexit. And how, pray, did the rag’s witchsmellers detect the people’s
enemies? “One founded a European law group,” the paper thundered. “Another charged the
taxpayer millions for advice,” it raged. Well, that’s lawyers for you. And the third? The indictment
against the third judge was in a class of its own. He was – shock horror – “an openly gay ex-Olympic
Quite how being a fabulous Zorro structured Sir Terence Etherton’s understanding of constitutional
law, I never could quite fathom. We can only assume the Mail prefers its swordsmen closeted. But
you don’t need twenty-twenty vision to read between these lines. The stolid English yeoman has a
heart of oak, no questions about his sexuality, and prefers to set about his enemies with a stout
length of wood – not some effete jessie stoating about with an épée. I bet this guy even takes
mayonnaise with his frites. He’s basically Belgian. QED. An enemy of the people.
The Mail’s efforts to monster Lords Brodie, Carloway and Drummond Young this week looked half-
hearted, by comparison. They dug up next to nothing about Drummond Young. Continuing the
paper’s inexplicable fixation with all things sabre-related, they revealed Lord Brodie “is reportedly a
keen fencer.” But the kicker? This “minister’s son” has a “passion for France,” expressing itself
through his presidency of the Franco-Scottish Society, which is “dedicated to upholding the Auld
Alliance.” “Against England”, one raging Brexiteer added, convinced of Lord Brodie’s mala fides.
And why not? It must have been all that boeuf bourguignon which convinced the judge that the UK
government’s lies and evasions about why it was proroguing parliament was an “egregious case” of
a “clear failure to comply with generally accepted standards of behaviour of public authorities.” It
wasn’t the paper trail of contradictory documents. It wasn’t the “clandestine” way Boris Johnson
went about organising the prorogation. It wasn’t the UK government‘s reluctance to put any good
reason for prorogation before the court.
No: the only explanation is he’s Macron’s catspaw, taking the opportunity to take revenge for
Flodden. Not that I’m saying that, of course. I’m just saying that people are saying that. I don’t want
to alarm anyone, but there’s an outside possibility Lord Brodie may also speak a bit of French too. A
feature – I merely note – he has in common with many a Brussels bureaucrat.
And the black marks against Lord Carloway? The tabloid revealed the Lord President of the Court of
Session is a “jazz lover.” Well, so was Jacques Chirac. And worse, Carloway “reportedly plays bass
guitar in a band called The Reclaimers,” and once said that realising Brexit would be “a task of
I think we can all agree – 3 years, 2 months and 22 days since the referendum result, 2 years, 5
months and 17 days since Theresa May sent Britain’s Article 50 letter to Brussels – with no viable
deal to leave the EU in hand and no consensus about how to do so – that Lord Carloway’s description
of Brexit as a “mammoth task” has been exposed as an unfounded and obviously biased remark.
Brexit has been plain sailing. What right thinking Briton could conclude otherwise?
These indictments fall at the dafter end of the spectrum, but the eruptions from the centre of
government and the ruling party are more serious. As soon as Lord Carloway announced the Court’s
conclusions, shadowy propagandists in Downing Street began to imply that the coalition of over 70
parliamentarians bringing this judicial review petition cynically selected Scotland for their venue,
because its judges would be more inclined to give them a favourable hearing.
Don’t get me wrong. Such factors can play into jurisdiction choice for strategic litigants – but if you
know anything about the Edinburgh bench and Edinburgh judges, you’ll know that Parliament House is no hotbed of constitutional radicalism. Nor did the three judges of the Inner House reach their decision on particularly radical terms.
On Tuesday morning, eleven judges of the UK Supreme Court will sit in what will be the final hearing
for this case. Despite what you may have read, there wasn’t much that was particularly Scottish
about the Court of Session’s decision that Boris Johnson’s prorogation was unlawful – save, perhaps,
for Lord Carloway’s use of the word “stymie” to describe the Prime Minister’s purposes in dismissing
MPs for five weeks.
Although Aidan O’Neill QC gave it great guns before the court about the significance of the 1689
Claim of Right, even the Lord President – who found in O’Neill’s favour – thought this aspect of the
action was essentially “romantic”. The other judges agreed, dismissing this strand of the argument
against the lawfulness of this prorogation, even as they upheld their main submission.
This is important for a couple of reasons. Firstly, it gives the lie to the convenient Brexiteer line that
this decision was somehow unfairly pried from the courts in Scotland, either by “political pressure”,
as one Tory numbskull MP put or, some kind of arcane alternative Scottish approach to the
constitution, or attributable to underlying judicial prejudices in Parliament House.
Second, it squashes the story doing the rounds that this decision was reached as a result of some
eccentric feature of Scots law which the Supreme Court can be expected to have no truck with. True,
the Inner House reached a different decision to the High Court in England and Wales. So did Lord
Doherty at first instance.
You don’t need to believe Lord Brodie’s favourite film is Braveheart, or Lord Drummond Young has
saltires stitched on his underpants, to explain why the courts might have reached different
conclusions. As Lord Hope has pointed out this week, this case comes down to basic principles of UK
public law, long recognised on both sides of the border, in the laws of Scotland and of England and
Wales. Can courts review ministerial advice on the prerogative to prorogue parliament? If
prorogation is advised for improper and unconstitutional reasons, can and will the courts step in to
hold the executive to account?
Court decisions are not – and should not – be immune from legitimate political critiques. The
gammon indictment looks nothing like this, amounting to vague innuendo and unevidenced claims
of bias, seasoned with just a dash of Scotophobia, simply because you wish the court had come to a
different conclusion. It’s a cheap and lazy ad hominem by cheap and lazy people.