The 17th September 2019 may prove to be a red letter day in the history of the law of the United Kingdom.  When Jacob Rees-Mogg made the long journey up to Aberdeen to go and see the Queen at Balmoral on behalf of the Prime Minister, he was clutching a piece of paper advising the Queen to prorogue Parliament from the beginning of the second week of September until mid-October.

The Government, the Queen was advised, needed a period of time to prepare for a new Parliamentary session which would be opened by a Queen’s speech containing an agenda for the new session.   The Queen cannot have any contrary opinion of her own and therefore was obliged to accept her Prime Minister’s advice.

But was the advice given to the Queen lawful? The Divisional Court in London declined to deal with the issue saying that the court could not in law stray into the political arena. Their Lordships concluded that it was impossible for there to be an assessment of whether the period of prorogation was excessive, as that was entirely a political judgement. There was, they said, no legal measure of the length of time between Parliamentary Sessions. They declined therefore to judge on the papers presented to them. The case fell at the first hurdle.

The Scottish Judiciary has not been so squeamish. For them this was an issue which related to the timing and purpose of the prorogation. Was the purpose of the prorogation as set out in the advice from the PM to her Majesty, or was it for another reason which might be unconstitutional and contrary to law?  The most senior Judges of Scotland used quite unprecedented language in propounding their conclusions.

They said it was unlawful ‘because it had the purpose of stymying parliament.’ 

Wow, well that is quite a statement, and it was made after a thorough examination of all the documentation produced by the Government. This included the fact that the promulgation of the advice had been planned some weeks earlier.

I hasten to add that I am not a constitutional lawyer, but I have never heard of an administrative law doctrine that some issues were just ‘too political’ for the judiciary to intervene. The test must surely be whether the Prime Minister’s actions were lawful in themselves.

Had the decision to prorogue been taken purely to make time for the Government to prepare from a new session or was there some other motive which might be beyond its powers or motivated by entirely different considerations? 

This seems to be the question the Scottish Judges based their decision upon and to me it seems to be the right question.

Undoubtedly, the case to be heard tomorrow brings the judiciary into a highly politicised area; but that is not the point. The principal of the Rule of Law (Governments govern but the law is king) has never been more important.

If a British Government starts acting in a way that is contrary to our constitution then surely we must expect the Law (in the shape of the judiciary) to intervene.

The principle of a Constitutional Monarchy is a two-way street.  The Monarch must accept the advice of her Prime Minister, but if that Prime Minister is not being honest with the Queen in their advice or is motivated by other unstated or improper reasons, then the Law of the land, in the shape of our Judges, must intervene to protect the integrity of our constitution and the position of our Monarch as Head of State.

Yes, we know what the rabble-rousers’ next step will be. Not only will Parliament be the enemy of the people, but so will be the Judges.  My goodness, if these diehards start interfering with Parliamentary Democracy and the independence of our Judges, we are on a slippery slope to goodness knows where. 

Our constitution is under threat and must be upheld.