‘Nonsense’ to say Scots judges are political

Madam, – The landmark decision of the inner house of the Court of Session declaring illegal the decision of Prime Minister Boris Johnson to prorogue parliament until October 14 is not only a vindication of parliamentary democracy over an untrammelled executive but another example of how law is intruding into what was originally the sole preserve of politics.

This was the theme of the Reith Lectures which were delivered this year by Lord Jonathan Sumption the former UK Supreme Court judge who disputes the unanimous decision of the Court of Session to declare the prorogation of parliament as illegal on the grounds that it is a political act and incapable of review by the law.

Unusual times, however, call for extraordinary decisions and the Court of Session fortunately has a power called the nobile officium which to paraphrase it ridiculously briefly, is a power where there is no legal rule adequately covering a given situation, for the court to grant any remedy or make any order.

This is a power singular to Scotland’s highest court and is not available to English courts.

It is to be hoped therefore that when the case is reviewed on appeal in the UK Supreme Court, that court remembers it is reviewing a Scottish case and applies Scottish not English legal rules.

There is one aspect of this whole business on which the Supreme Court should focus which is I think a judiciable matter in both English and Scottish jurisdictions and that is a matter of abuse of process – not a matter of whether the act of prorogation was legal or illegal as a matter of constitutional law.

Boris Johnson in presenting his case for the prorogation of parliament told the Queen, whose consent according to UK constitutional law is an essential step in the process of approving an executive act of this kind, that the purpose of the prorogation was for one reason and not for the underlying reason of making it as difficult as possible for parliament to hold the executive to account.

There is an important distinction in arguing in general, if duplicitous, terms for a prorogation in the aforesaid letter to MPs which set out the reasons for prorogation he proposed to explain to the Queen – for dissimulation is not uncommon in political debate – and using these same arguments to obtain the sovereign’s signature to the prorogation.

Deceiving the sovereign as part of the legislative process is clearly illegal.

Finally the howls of protest from Brexiteers and members of the ERG that the Scots judges are politically motivated are sheer nonsense.

Not one of the three members of the inner house has any history of party political activity. Alexandra MacRae. 8 Jubilee Park, Letham, Angus.