Lord Advocate’s application to intervene in Court of Session case accepted
The Lord Advocate James Wolffe QC’s application to intervene in the prorogation case at the Court of Session today has been accepted.
Mr Wolffe has lodged applications to intervene in two legal cases aimed at preventing the suspension of the UK Parliament ahead of the Brexit deadline.
He is also seeking permission to make representations to this week’s hearing at the High Court in London.
He contends that the UK government’s prorogation of the Westminster Parliament prevents scrutiny and represents an abuse of executive power.
The hearing at the Court of Session is taking place today before Lord Doherty in the Outer House and has been brought by Joanna Cherry MP and others.
On Thursday, the High Court hears a separate action brought by anti-Brexit campaigner Gina Miller.
Constitutional Affairs Secretary Michael Russell said: “Accountable government is a fundamental principle of our democracy. This attempt to suspend the UK Parliament at such a critical time is a clear attempt to silence opposition and must be resisted.
“The democratic wishes of the Scottish people and the Scottish Parliament should not be allowed to be brushed aside as if they did not matter.”
When the Lord Advocate intervened in Miller three years ago, the response his submissions received was described as being “fantastically rude” and “inappropriate”.
He lodged a formal application to intervene in the UK government’s appeal to the Supreme Court on the triggering of Article 50 in November 2016 after it had been defeated in the High Court.
Then Attorney General, Jeremy Wright QC, and the Advocate General for Scotland, Lord Keen of Elie QC, said in response to his application: “With the greatest of respect to the Lord Advocate and the Counsel General, the DC was right to conclude that points arising from Scots law add nothing material to the issues in this appeal.”
Sir Paul Jenkins QC, former head of the UK government’s legal department and Permanent Secretary to the Attorney General between 2006 and 2014, tweeted at the time: “I can’t recall a case where the Govt thought it wise to descend to such rudeness. Unnecessary and inappropriate.”
Jolyon Maugham QC said the response was “fantastically rude”.
Mr Wolffe made a number of arguments, including the fact that it is a matter of constitutional principle that laws cannot be changed or repealed by means of the Royal Prerogative alone.
His submission noted: “This principle is reflected in the Claim of Right Act 1689 and in Article XVIII of the Acts of Union of 1706 and 1707.”
The Supreme Court ultimately upheld the decision of the High Court – which had prompted a media furore – namely that parliamentary authority was needed to trigger Article 50.
When the Supreme Court sat in Edinburgh in 2017, Lord Neuberger shared his worries about the case.