Brexit: the Court of Session frustrates the Westminster executive (again)

Professor Keith McLay, Pro Vice-Chancellor Dean of the College of Arts, Humanities and Education at the University of Derby, examines a historical legal precedent for the latest twist in the Brexit saga.

The latest twist in the Brexit saga was the decision of the three judges of the Inner House of the Court of Session, Scotland’s highest civil court, that the UK Government’s prorogation of Parliament was illegal. This judgment overturned the finding of Lord Doherty, who first heard the petition, that the matter was not justiciable (in other words, not one for the Senators of the College of Justice, as senior Scottish judges are known). 

The online BBC correspondent deemed the decision ‘extraordinary’ and the vast majority of media outlets followed suit with their incredulity.  Historians, and I write as one, commendably (I think, obviously) tend to avoid drama and hyperbole on the grounds that one can always find a precedent lurking somewhere in the past; and on this occasion not only is there an instance of the Court of Session frustrating the Government but that the judges’ actions were  also taken in a context of a divided country, north and south.

The government hardline as recruiting sergeant

The 1715 Jacobite rebellion by adherents of the exiled (1688) House of Stuart very nearly succeeded in its attempt to topple the Hanoverian monarchy; many view this rebellion as the Jacobites’ best and most likely opportunity of the their three rebellions in the 18th century (1715, 1719 and 1745).  Defeat, however, arrived on the battlefield of Sherrifmuir in the lee of the Ochil Hills, Perthshire, on 13 November when John Campbell, 2nd Duke of Argyll, leading an army half the size of John Erskine, 6th Earl of Mar’s Jacobite force, strategically checked Mar’s advance south thereby preventing him linking up with the Jacobites in the north of England.  

Post-defeat, the Westminster government initially set upon a hard-line strategy to root out and crush Jacobitism and the perceived supporters of the cause in Scotland.  In addition to the Acts of Attainment, trials and executions, Parliament passed in 1716 the Forfeiture of Estates Act. This legislation gave power to the six strong Commission for the Forfeiture of Estates ‘to inquire of the estates of certain traitors, and of popish recusants, and of estates given to superstitious uses, in order to raise money out of them for the use of the public’; a broad brief indeed.

That the Jacobite rebellions are often labelled a Scottish Civil War makes the point that not all or indeed the majority in Scotland were Jacobites or Jacobite supporters. Nonetheless, there was in 1715/16 a queasiness at the Government’s hard-line and the succour it might consequently provide to the Jacobites; notably in a memorandum of advice, Scotland’s senior legal officer, the Lord Advocate, Sir David Dalrymple wrote that the strategy would mean that Jacobitism ‘…will be recruited and keep’d full’

The establishment bristles at the law

Many in the Scottish political and legal establishment also bristled at the fact that the Forfeiture Act was framed according to English law and thus failed to recognise that a key principle of the 1707 Act of Union – to which there remained much opposition north of Carlisle – was Scotland’s retention of separate legal system. 

Finally, insult was added to injury that only two of the six Forfeiture Commissioners were not English MPs who had essentially been dispatched to sequester the estates of many of Scotland’s noblest families with roots deep into Scotland’s history as a separate kingdom.

As the Forfeiture Commissioners set to work in 1716, the judges of the Court of Session emerged as unlikely, but equally, nuanced rebels against the Government’s policy.  Although the intention of the Forfeiture Act was to raise money for the Exchequer from the forfeited estates, the legislation did recognise the claims of the rebels’ creditors and of those persons who had titles to the estates through marriage and other familial ties. 

On receipt of petitions from such individuals (many of whom were intimately related to the rebels and thus of whom the Commissioners were duly sceptical) the Court of Session sequestered the estates but permitted factors to collect rent firstly for those who had presented the petition and only secondly for the Forfeiture Commissioners. Policy check mate to the Court of Session: very little money went south to the Exchequer.

The Supreme decision awaits

It’s impossible to know exactly what was running through the minds of the judges in 1716 when they handed down the preferential sequestrations.  It’s not unreasonable to conclude, however, that the jurisprudential insult of the Forfeiture Act and difference of opinion in Scotland over how to deal with the Jacobite threat weighed significantly. 

Similarly in 2019, although the Lords Carloway (the Lord President), Brodie and Drummond Young would have interrogated rigorously and judicially the stateable case, it is certainly true that the Brexit and Scotland’s Remain vote of 62% served as context for the judgement.

We move to the UK Supreme Court next week.  Who knows what judgment will result but hopefully pundits and commentators will have boned up on their history by then. 

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