Those who were listening to the Supreme Court hearing Wednesday afternoon may well have noticed major differences between the advocacy and oration employed in the submissions made by Aiden O’Neill QC (Scot) QC and the submissions of the three advocates who preceded him trained in English law. This may well be primarily a question of style rather than substantive legal tradition – Mr O’Neill has after all ‘taken silk’ and been named Queen’s Counsel in both the English and Scots legal tradition. However, that there is also substance in the matter is beyond question and of significant importance in resolving this constitutional question.

During Lord Keen’s submissions on Tuesday afternoon, representing the government’s appeal in the Scottish case, he began his argumentation by addressing the question of whether there was any significant legal difference in the Scots approach to constitutional matters and the English approach. Lord Keen argued there was no difference in this case – yet when speaking in general terms this is far from the truth of the matter. On the relationship between parliament and the executive power of the crown (the resolution of the tension there-arising forming the basis of Britain’s constitutional law and its foundation in the idea of ‘constitutional monarchy’) the two legal traditions rest of different bedrocks which enable very different answers to these principal constitutional questions.

“Scottish constitutional law, in particular, does not share the deference to prerogative powers of its English counterpart”

David Allen Green, the astute legal commentator and columnist, highlighted this subject when the Inner House of the Court of Session ruled against the government’s prorogation last Wednesday on 11th September.

https://twitter.com/davidallengreen/status/1171768672941215746

https://twitter.com/davidallengreen/status/1172079861709647872

In his Financial Times article published that day, Green noted “Scotland has its own system of law which differs in many respects, sometimes radically, from the law of England and Wales…That is why the Scottish court was able to take an alternative view to the High Court in London”. He underlines in particular a difference in constitutional matters: “Scottish constitutional law, in particular, does not share the deference to prerogative powers of its English counterpart.” Whilst he did not invoke this argument directly, Mr O’Neill in his submissions did draw attention to the fact that Scots and English law differ considerably which, he was keen to point out, was represented in the Supreme Court’s emblem and impressed upon the justices the value in this aspect of the union and its importance in settling legal matters. He made explicit reference to the Claim of Right.

This brings us to the origin both of the differences in constitutional law in this country and I would argue of that constitutional law itself. British constitutional law emerges with the Glorious Revolution 1688. The ‘revolution’, as improperly named as it may be, was the last act in a conflict between the crown and parliament which erupted under Charles I into civil war in 1642, however which some historians would argue go back to the beginning of the 17th Century with the accession of James I & VI to the English throne. The conflict was about asserting parliament’s role in English government, the voice of the propertied, proto-bourgeois class it represented, and the subordination of the crown to parliament’s authority and its statutes. In 1688, the crown and its backers finally lost this battle.

Having deposed James II, Charles I’s son, and invited the Dutch Stadtholder William of Orange to take the throne in defence of English Protestantism, the English parliamentarians then formed a convention which drew up a Declaration of Rights (later partially incorporated into the Bill of Rights) in January 1689. After some arguing between Whig and Tory interpretation of events, the convention finally agreed on a wording to explain what had happened – James had acted ‘contrary to the laws and statutes and freedom of this realm’ and had subsequently ‘abdicated and vacated the throne’. Many Whigs, unsatisfied with the wording of this phrase, saw the Declaration as a failure to impose real limitations on the crown – indeed, the parliamentarians only asked William to listen to it being read aloud, and it formed no part of the offer to make him King. As the historian John Morrill put it, the settlement was ‘a centrist compromise and a constitutional blur’. The first of many to characterise English, later British, constitutionalism.

“In Scotland the revolution rested on a more explicitly contractual idea of kingship and rule in general than in England.”

Indeed the true power of parliament, rather than in this Declaration which made its way into a watered down statute like any other which could be overturned by any subsequent parliament, came from its control over the funding of government. In March 1689, the Commons granted William less than half the sum per year which his predecessor has enjoyed during his reign, resulting in the crown going into debt and constantly requiring parliament to vote it funds. Parliament became de facto indispensable rather than de jure. Parliament in turn used this as a lever, as historian David L. Smith has noted, to pass legislation which expanded its powers and authority so as to make it a permanent feature of government unlike it had ever been before. Indeed, this very argument was used by Sir James Eadie on Wednesday morning in response to the question by the court why, if they did not put limits on prorogation, parliament could then be prorogued for, say, a year. His response was that government cannot function in the long-run without the funding it can only obtain from parliament. In England, it is the very real power, not principle, which guarantees parliament’s scrutiny and control functions.

In Scotland, things unfolded differently however. When William summoned a Convention of Estates in Edinburgh in March 1689, the Scottish Jacobite Tories boycotted it and for this reason, Whiggish opinion faced no opposition. James II was declared to have ‘forfeited’ the throne. This was elaborated on later in the Claim of Right, which stated that James had attempted ‘the violation of the laws and liberties of the kingdom, inverting all the ends of government’, and thereby ‘forfeited the right to the crown, and the throne is become vacant’. As Smith argues, in Scotland the revolution rested on a more explicitly contractual idea of kingship and rule in general than in England.

Hence why English law respects the prerogative powers of the crown and embraces the idea of ‘non-justiciability’ (the idea that political matters cannot be resolved in law) and Scots law is far more willing to define the constitutional boundaries of the exercise of power. Mr O’Neill argued on Wednesday that there is little which connects the precise powers which still fall under the prerogative, and hence they should really be considered residual powers – powers which parliament has allowed the executive to continue to exercise. There are some limits to the point of view; the power to execute and administer law, and the power to conduct diplomacy must be assumed by a body better suited to those tasks than parliament. However, the power to prorogue – to suspend parliament – is not a necessary aspect of government which the executive is best placed to undertake. Its exercise must hence strictly comply with the principle underpinning the British constitution: the principle of parliamentary sovereignty. Mr O’Neill invited the justices to rule based on whether they believed the current prorogation did comply with that fundamental principle or not, something no English advocate would dare to ask.

Of course, if Britain had a written constitution, much of this would not be necessary. Whether the Prime Minister could exercise this power, and what principles and considerations it must be tested against by the constitutional court, would have much clearer answers. Indeed, the justices would not have to consider whether the matter was even justiciable in the first place. Our constitution is this way because Britain’s ruling-class deemed it necessary that it be kept pliable in their hands – in fact, for moments like this when governments needed a shot of political espresso to give them the momentum to overcome certain hurdles of principle or doctrine. So long as most of those making the rules agree it’s allowed, then it’s allowed. It just so happens that most of them did not agree and the Prime Minister went ahead anyway, and there was nothing, it seemed, the rest could do about. Yet it may just be that a quirk of our history, a forgotten aspect of this strange anachronistic state we live in, will be able to halt Johnson’s rampage. To frustrate his desire to release himself of the fetters that even the ruler-makers are bound by. To prevent our constitutional settlement and its underlying social contract from falling apart. Temporarily, I suspect, at least.