Supreme Court musings

1. Presumably it will be heard by all of them?

2. If not all of them, who decides how many and who?

3. Is there a public gallery? 

4. Will it be televised?

5. If they find for the government how fvcking scary is that going to be?

6. Does the man on the Clapham Megabus give a toss?

If they find for the government how fvcking scary is that going to be?

Why would it be scary?

They'll overrule the Court of Session.  Senior Jockonese judges are cantankerous blighters, frustrated academics to a man, and often deliver judgments to be perverse and/or thumb the nose at the English.  If anyone read the Spectrum Plus judgment, Lord Hope completely went off on a treatise about assignation under Scots law, which was completely irrelevant to the English law security at hand.  Barmy.

I think it will be publicly broadcast on the telly - as they did with Gina Miller's previous application on Art 50. 

DAG has pointed out that the relevant constitutional law here is different between Scotland and England and that it is less likely that an English court would come to the same conclusion. That coupled with the fact that the 3 most senior law lords gave the decision in the High Court suggests that they will find for the government. Still not sure why that is scary, though.

why would the supreme court (an overarching court for all of the UK nations) apply English law to an appeal from a Scottish court?

Because Scots law is an anomaly and should be abolished.

Or alternatively, because the same constitutional issues apply to Scotland as well as to England, and the proroguing of Parliament is a UK wide issue, not a purely Scottish one.

Yes, I think the latter of BadMan's points. Surely they have to pool the actions, as they are ultimately deciding the same question.

If the proroguing is legal from an English law perspective but illegal from a Scottish law perspective - what do you do? 

this will only fuel calls for separation, badders, when the suggestion is made that Scottish law and judiciary is inferior to the English one. 

"Or alternatively, because the same constitutional issues apply to Scotland as well as to England, and the proroguing of Parliament is a UK wide issue, not a purely Scottish one."

 

And the question then is where there is conflict is it an agreed position that English law should prevail?

if the supreme court is hearing a Scottish appeal it must apply Scottish law

the UK Parliament is Parliament to all parts of the UK and if it is found in breach of Scottish law it has been found to act illegally for UK purposes

If it is then it plays right into Nicola Sturgeon's hands.

It's not a question of whether English law will prevail, as it's an action brought in the Scottish courts and subject to Scots law.  The issue is that the Court of Session is still subject to appeal to the Supreme Court, which is the ultimate supreme court for all of the UK.  So the SC can still overturn the COS is it thinks it got the law wrong.

I mean, seriously, fuck this shit. The UK is genuinely going to break up if these Brexitwats get their way.

I doubt it.  Scotland is basically balance sheet insolvent if it does.

And wouldn't be able to raise any significant money through bonds to pay of it's (dis)proportionate share of the national debt. Scotland is an economic basket case.

badman - you have never really struck me as a hard law man yourself. but yes this is my point in response to the references above to "English courts reaching a different conclusion"

there is no reason that a different conclusion should be reached by dint of the "Englishness" of the SC

sigh

Scotland has a fairly good economic base

I wouldn't vote for independence in general but then I meet English twats who find farts hilarious and think

maybe actually

badders- I am more aligned to what clergs is saying here:

"the UK Parliament is Parliament to all parts of the UK and if it is found in breach of Scottish law it has been found to act illegally for UK purposes"

it will be a clusterfuck and the SNP will milk this to no end. 

I think that if we end up remaining in the EU or leaving with a deal (either May's deal or an EEA type deal) then that neutralises the threat of Scottish independence somewhat. Apart from anything else people are really fucking sick of referendums at the moment.

But if we leave with no deal, Scotland absolutely will go independent. The argument that little Scotland should stay within the strong and stable UK rather than going off alone to be an economic basket case and not being allowed to use the pound will have completely imploded in light of the fact that the whole of the UK will be an economic basket case and the pound will be completely fucking worthless.

Indeed.  I did say that Scots law should be applied.  Do please read carefully.

 

Cutting, Clergs.  Don't let the levity and perversity fool you, I'm actually very much a hard law person.  I was the first person in the UK to start secondary insolvency proceedings under the first iteration of the EC Insolvency Regulation and contribute to no less than three practitioner texts on various subjects.  I also wrote the Crown Estate's definitive internal guidance on the interrelation between escheat and bona vacantia - a topic so difficult that the Law Commission gave up trying to reform it as it was too difficult.  So perhaps reconsider the snide remarks.

haha nobody who is intellectually secure would have typed that paragraph so I don't think I will tbh

you'd expect a man of your vintage to have churned out a couple of inhouse pamphlets in his time

Part of the reason the Scots voted to remain in the UK was fear of the economic pain they would have to suffer in pursuit of independence. In a no deal scenario they will already be in economic pain, so what's a bit more, especially with the carrot of possible re-entry to the EU dangled in front of them.

ps you literally did argue that English law should be applied by the SC above ^

The point about Spectrum plus is bollocks, as there is plenty of crossover on floating charges. If you want to see English legal entitlement in full force in the Supreme Court read Sharp v Thomson knowing that there is no concept of equity under Scots law (equity being a figleaf for making it up as you go along). 

There's no real English/Scots law in this, as the crossover in administrative law save for devolved matters is almost complete. It's like in the Enviroco decision - yes it came from the Scottish courts, but has pretty far reaching implications across the UK as the Companies Act applies across the UK for the most part. 

I love the barely concealed jingoism in all of this.   

I may have been tweaking Clergs' leg somewhat.  Clearly it's a Scots law issue (in this instance).  I just find it hard to see how the treatment could be any different under English law (i.e. illegal under Scots law by legal under English). 

 

Clergs, perhaps someone who is intellectually secure would nevertheless tire of your sneering and perhaps set out a few of their credentials.  I don't boast on here about academic achievement and contributions to textbooks, precisely because it's extremely wanky.  But you said I didn't strike you as a hard law man, so I thought I would respond.

I don't know for certain, but I hope they do as I can't stand more "Enemies of the People" BS, especially from papers that are always keen to throw out HRA arguments to spread gossip about inconsequential "celebrities". 

Even in the US I don't think they have such open contempt for judges. 

Bananaman, stop embarrassing yourself.  Of course there are floating charges under Scots law.  It's just that Hope started banging on about how this wouldn't have been a problem in Scotland as you could have used assignation.  Which entirely missed the point, as the disguised floating charge fallacy still applies to assignations where the fact of the assignation is not intimated to the debtor or (if it is) the floating charge holder still doesn't exert control over book debts. 

"perhaps someone who is intellectually secure would nevertheless tire of your sneering and perhaps set out a few of their credentials"

who has the keys for the lollercopter?

maybe I will trail one of those giant signs with all mah amazing credentials

I think Dux has the keys to the lollercopter.  Don't encourage him though.

Dux is just putting on how bow-tie as he combs his whiskers while proudly reading the English High Court ruling while standing up. 

You'll need a marker pen with a nib about four feet wide if you intend to fill up all the space, Clergs.

Yes a Supreme Court judge missed the point a brilliant armchair critic has identified. As a Scots law lawyer he has to set out the rationale for his arriving at the same decision borne out of the concept of a fixed charge from within his jurisdiction (meaning a valid assignation, not implicitly saying "anything that is an assignation on its face is fine in Scots law so I don't see the problem") so as to set the precedent in a useful manner for all relevant jurisdictions. He then goes on to expand on that in the context of types of fixed charges within England, to then arrive at categorising the security and then determining the control question. 

Your reduction of this is "foreign judge doesn't know what he is talking about." I appreciate it is trolling so sorry for falling for the bait, but it is really depressing. 

No, Bananaman, the analogy was irrelevant to a court presiding over an English law case and so an entirely unwarranted exploration of an inapplicable set of laws.  He just wanted to wank on about how great Scots law is.  That's the depressing thing.

bet the family lawyer is lolling at this one

 

"but what about the children act"

 

I am reminded again of Ed Gein's box of nine vulvas

"As a Scots law lawyer he has to set out the rationale for his arriving at the same decision borne out of the concept of a fixed charge from within his jurisdiction"

Heh. He really doesn't have to do that.

Precisely, Spurous.  If he was not versed in English law (Scots law qualified only) he should have recused himself for not being qualified to comment.  If he is English law qualified, the Scots law treatise was unnecessary and irrelevant.  It's just intellectual masturbation.

i’ve got a lot of sympathy for the argument that it must be unconstitutional and illegal to suspend parliament for an excessive length of time to prevent parliament from doing something u don’t want it to

but that must necessarily be fact specific, with excessive length of time depending on the circumstances

shirley then, this case is blown out the water by the fact that if bodge’s intention was to stop the brextension legislation, that failed (cos parliament has got it through)

so while he might have intended to behave unconstitutionally, as he has not actually been able to stop parliament doing its particular concerned purpose on this occasion that feels like it blows the case

That Supreme Court List in full

Hugh

Pugh

Barney-McGrew

Cuthbert

Dibble

and

Grub

Lord Fark of Sexwee is indisposed.

 

Yes, Lord Fark is in chambers with HHJ Dungtrumpet of Chutney-Locker.

Badders - Rereading your original response to the issue of conflict:

"The issue is that the Court of Session is still subject to appeal to the Supreme Court, which is the ultimate supreme court for all of the UK.  So the SC can still overturn the COS is it thinks it got the law wrong."

Question is which law will the SC be guided by when considering the appeal from CoS. Given the precedence, they will have to consider that appeal under Scottish laws. But that will conflict with the English law position on the justiciability of Executive's decisions here.

What if that point of justiciability is right under Scottish law and "wrong" (to use your word) under English law. Either the SC will settle it once and for all that English law prevails in the event of conflict or that Scotland can apply its own Scottish laws and can disregard English law position (and this is unlikely as long as the UK is existing). 

Maybe CoS deliberately pushed this conflict to the SC for a binding ruling. 

Could well be.  Deeply cynical, and so entirely likely.

And today is when it all starts in the SC.BJ still refusing to openly say he will be bound by the decsion of the SC if it goes against him.Is he mentally deranged.

Won't that depend what order is made?  Parliament would now have been on a scheduled recess anyway...

but its the timing of the suspension is a major issue. I think the government will win comfortably.

Clubbers, thanks SO much for this helpful image:

https://pbs.twimg.com/media/EEL6o8MXYAQf-oc?format=jpg&name=small

I saw Hale and Reed on their last tour, and wasn't impressed.

Kerr's new stuff is OK, but I'm not that fussed.

From Wilson onwards, though, I've been waiting for that line up for years! Allowing a set of, say, an hour each, with 15 minutes to grab a beer between each one, I'm guessing Wilson will take the stage at about 1pm? Should be a brilliant gig.

Not that fussed about Lord Hodge, so might pop out for a meal at that point.

Epic line up. See you all in the mosh pit!

I want to see some of the Counsel get a good kicking when they over run their alloted time, or start developing legal arguments which in Sumptions words last night " are plainly absurd"

Literally? that would be hilarious.

Picture Young Buck of Counsel, PLC*, on the floor, foetal, surrounded by Law Lords.

"We *kick* told *kick* you not to *kick* make those *kick* absurd points! PILE ON!"

 

*Proper London Counsel, for those not in the know.