It is somewhat ironic that a hearing on one of the most important UK constitutional matters to come before the courts in modern times will take place in the building that housed the original Scottish Parliament, now home to the Supreme Courts of Scotland.
The case, brought by more than 70 British parliamentarians, will seek a ruling on whether Prime Minister Boris Johnson’s attempt to prorogue or shut down Parliament to secure a no-deal Brexis “unlawful and unconstitutional”.
Some may wonder why this critical matter is to be decided in the Court of Session in Edinburgh and not in a courtroom closer to the mother of all parliaments. Put simply, the UK Government is present in all parts of the UK and individuals and groups can seek a judicial ruling concerning actions by the government or a government agency in any jurisdiction. In these circumstances, any subsequent ruling by a court in England, Wales, Northern Ireland or Scotland, will carry equal weight.
Leaving aside the political debates central to this action, there are a number of factors that may have influenced the MPs, peers and Jolyon Maugham, QC, founder of the Good Law Project, to seek a judicial remedy in Scotland.
First and foremost, there is an attitude that has been adopted in recent years that the courts are here to provide a service and rather than persuade parties to go elsewhere, the focus should be on getting things done. Certainly, in our commercial courts the emphasis is on providing a service to the business community. There is a willingness to listen to what is needed from business “clients”, to be more efficient, and, I dare say, improve on how matters may have been conducted in the past.
This positive can-do attitude is particularly relevant to the proroguing hearing as the judge hearing the case is Lord Doherty, Scotland’s principal commercial judge.
When the petitioners for this judicial review put across that there was a case for urgency in hearing this matter, Lord Doherty’s natural instinct would have been to say – OK, let’s work out how best we can do this. Another factor that may have influenced the strategy of the petitioners was that they may have thought they could have the case heard more quickly in Edinburgh, that it was more convenient and arguably cheaper.
Indeed, the 2017 Wightman case, where cross-party politicians successfully argued in the Court of Session that Article 50 notification withdrawing the UK from Europe could be reversed unilaterally, may have served as a template for next week’s action.
As the clock ticks down to when Lord Doherty, sitting alone in the Outer House will hear the petition for judicial review, parties will be fully occupied submitting documents, written arguments and other materials that support their respective positions.
Regardless of whether the judge upholds or rejects the challenge, it does not take a betting man to wager that whoever loses will then appeal to the Inner House of the Court of Session, to be heard before a three-judge bench.
The timetabling and control of proceedings in the Court of Appeal is under the direct supervision of Scotland’s two senior judges, Lord Carloway the Lord President, and Lady Dorrian, the Lord Justice Clerk. I would expect this court to adopt the same approach to earlier hearings and find a way to bring this matter to a relatively speedy conclusion.
The eyes of the UK’s political and legal establishments will be focused on a historic 17th century building located on the Royal Mile and events therein. Aside from what could potentially be a far-reaching legal judgement, the strong message from Edinburgh is that Scotland’s courts are open for business – and they will continue to attempt to facilitate the requirements of our ever-changing society.
Craig Connal, QC, solicitor advocate and partner in legal firm Pinsent Masons.