IS THE REMAINER CASE BROUGHT IN
SCOTLAND LEGALLY VALID IN ENGLAND?
I should start by saying that I am
an English Solicitor and not a Scottish one.
Scotland has a very different legal
system to England. Theirs is based upon Roman Law and not on English Common
Law. I am therefore not qualified to
answer this important question as a lawyer – with regard to what approach the
Scottish courts will take.
However I would say that the Act of
Union 1707 is key to understanding which court has the best claim to
jurisdiction over our Parliament. Have a
look here (especially at Article 22) >>> http://rahbarnes.co.uk/union/union-of-1707/union-with-scotland-act-1706/
Then I would suggest also having a
look at the Judgment in the Gina Miller case where the Supreme Court refers to the appeals from
Scotland, Wales and from Northern Ireland (in paragraphs 126 to 151)
>>> https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
The combined result of these legal authorities
is that the Parliament of the “United Kingdom of Great Britain” which was
created by the Act of Union 1707 is one in which the Scottish Parliament was
merged into the English Parliament. The (British)
Parliament then continued on the same English constitutional basis as
before. Thus it is English
constitutional practice which is the applicable constitutional law and not the
ancient Scottish one.
This is also made very clear by the
whole basis of the rest of the Gina Miller Judgment in which the Supreme Court
relied heavily on pre-Union exclusively English legal precedents to explain and
to analyse how the (British!) constitution works.
So I would expect the challenge to
Boris Johnson to fail in the Scottish courts to the extent that there is any
attempt to rely on Scottish constitutional law.
If it does not fail there then it should fail in the Supreme Court.
An additional legalistic reason why
this case should fail is that it is seeking a declaration on something that at
the moment is merely theoretical (or ‘moot’) and is not challenging an actual
decision that has been taken.
LOVE IT. THNX
ReplyDeleteI sincerely hope that this remains 'moot'. If rumours are true, is PM Boris Johnson about to sign a 'Consent Order' to withdraw the Theresa May defence against your current High Court case? Or will he wait and try to use it as a sort of UK Backstop to obtain a better trade deal with the EU, and thereby enhance his own electoral prospects? Imagine....
ReplyDeletewhat is the update on this case please?
ReplyDeleteno cause the UK court stands above all delvoed courts like the EU does for now but they won't touch that (the eu courts)
ReplyDeleteThank you for your attention to this Robin Tilbrook. If Boris were to decide to flatten, now and forever any risk of Brexit not being delivered, he need only listen to a very clever, and courageous English Solicitor whom has a case against the government as we speak, providing that we have left the EU already on the 29th March 2019. Boris need only step aside and this could be the Tunguska event that saves alot of politicians from endangering themselves with sedition, collaboration and treason ...
ReplyDeleteI believe yo are right, the Scottish courts do not have jurisdiction over the entire UK.The treaty of union protected Scottish private law, but public law will fall on the UK parliament and Supreme Court, being the old Law Lords from the House of Lords. But the treaty also says there can be only one and the same parliament, the Scottish parliament thereby being unlawful. And the UK agreeing to be represented by a European parliament is unlawful. My point being the political class are not advocates of doing things lawfully, in that case the Scots court might apply to the entire globe.
ReplyDeleteGreat.
ReplyDelete