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BoJo cornered

Written By: - Date published: 1:03 am, September 25th, 2019 - 75 comments
Categories: boris johnson, democracy under attack, Europe, Jeremy Corbyn, social democracy, uk politics - Tags:

Lady Hale and the UK Supreme Court have torpedoed Boris Johnson’s cunning plan to prorogue Parliament. His request to the Queen was “unlawful, void, and of no effect.” Her Maj will not be pleased. Johnson is now boxed in – ask for an extension to Brexit, or resign.

[youtube https://www.youtube.com/watch?v=rCxJhj7tMkc?feature=youtu]

And it was all going so well. Big meeting with Donald Trump at the UN on the world stage, freewheeling no regulations trade deal in the offiing, aligned with the Europeans and Americans on Iran.

John Rentoul sums up the consequences in the Independent:

The huge significance of the Supreme Court ruling is that it wipes out any prospect of Johnson’s being able to find a way round the Benn act.

It not only undermines the prime minister’s credibility but it makes it abundantly clear that the court will intervene quickly and brutally to prevent any attempt to subvert the will of parliament. And the one thing we have known since the start of this year is that there is a majority in parliament against leaving the EU without a withdrawal agreement.

But the court ruling makes it even harder to get a deal through parliament. Labour MPs sense that they have the prime minister on the run – Jeremy Corbyn made that clear with his impromptu response from the platform at the party conference in Brighton. 

It will be harder now for Stephen Kinnock and his pro-deal colleagues among Labour MPs to vote for any deal that Johnson brings to parliament. They will be castigated by Remainers for bailing the prime minister out of his sinking premiership. That means we are likely to be heading for the biggest decision of Johnson’s short time as prime minister: on 19 October will he send the letter required by law asking the EU for an extension (which it is almost certain to grant), or will he resign? The choice is that stark.

This week’s media in the UK have been all about the standard “splits and divisions in the Labour Party” trope or meme (or narrative). But next week will be the Conservatives’ turn. Popcorn time.

The funny thing is that Jeremy Corbyn’s refusal to be positioned and to seek another referendum on the detailed options post an election now looks to be very sensible. Steve Howell spells out why here. I met Steve at a Labour Party event in Chingford last year and was impressed. I have always thought the wisest thing ever sad about politics was Harold Wilson’s “a week is a long time in politics.”

Johnson will certainly not be so keen on an election as he was a few weeks ago. He has said he will respect the judgment and has cut short his visit to the UN and flying back to London. The Speaker has called Parliament to reconvene tomorrow.

Very definitely watch this space.

 

75 comments on “BoJo cornered ”

  1. lprent 1

    Shades of the short and long parliaments.

    Surely Boris must have known that the principle that parliament manages itself is deeply embedded with royal and noble blood directly into the very core of the British constitutional law?

    The courts would have been aware of it – it looks to me like the lower courts shunted it up to the higher court with their expeditious hearings. I was wondering if this was what would happen.

    I can't see any real way forward for Boris. He has been beheaded politically.

    A fast vote of no-confidence is liable to be in his near future and/or a general election. I don't think that the conservatives will want to have another leadership factional fight.

    • Dukeofurl 1.1

      The history is against the idea that Parliament manages itself

      https://en.wikipedia.org/wiki/Prorogation_in_the_United_Kingdom

      "The House of Lords did not interfere with nationalisations in 1945 or 1946, but it was feared that the proposed nationalisation of the iron and steel industry would be a bridge too far,[11] so a bill was introduced in 1947 to reduce the time that the Lords could delay bills, from three sessions over two years to two sessions over one year.[12] The Lords attempted to block this change. The Bill was reintroduced in 1948 and again in 1949, before the 1911 Act was finally used to force it through.[13] Since the 1911 Act required a delay over three "sessions", a special short "session" of parliament was introduced in 1948, with a King's Speech on 14 September 1948, and prorogation on 25 October 1948"

    • greywarshark 1.2

      I like the spider on her dress. She is signalling that she isn't afraid of anything, Bojos or what. I suppose that is Lady Hale.

      Hail Lady Hale and the Supreme Court of the UK.

      • greywarshark 1.2.1

        Executions, beheading they are all part of the amazing and colourful English heritage. Blackadder did a very good coverage of many historical points.

  2. Sanctuary 2

    And here I was thinking my degree in British history was an anachronistic waste of time.. Clearly, my youthful choices were prescient. 🙂

    TBH, I am surprised the courts have intervened in this matter.

    The key to me is this is actually a re-affirmation of the supremacy/sovereignty of parliament – restating the constitutional settlement of the Glorious revolution. Parliament must remain sovereign, and any to use royal prerogative – even when that prerogative is wielded by the notional (I say notional because Boris Johnson only remains UK PM at the pleasure of a house where he does not command a majority) prime minister – to obstruct the parliament in it's discharge of it's sovereign power is therefore illegal.

    The funny thing about the Brexiteer idiots is they have no grasp of their own constitution. Claiming that a re-assertion of parliamentary sovereignty over royal prerogative is somehow an assault of democracy show that they basically proto-fascists – they want an authoritarian leader who arrogates to himself the newly arbitrary powers (newly arbitrary because they would be uncoupled from parliamentary oversight) of an unelected sovereign. The trapping of parliament and Queen would be retained for the purpose of window dressing, but a strong man – presumably complete with his own star chamber and favourites – would run the country.

    • left_forward 2.1

      Very good Sanctuary – I agree with you, but why the surprise that the Supreme Court would rule to protect the constitution?

      • Sanctuary 2.1.1

        To me it turned on whether or not the prerogation was justiciable. The lower courts thought not, presumably because parliament is sovereign in it's business. I thought the supremem court would just re-affirm this, but no! I was wrong. The supreme court agrees that parliament is sovereign but thinks the issue is justiciable because the court has a supervisory function to ensure parliament behaves in a legal way – the actualy judgement is below and is concise –

        "… The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”. However, in considering prerogative powers, it is necessary to distinguish betweentwo different questions. The first is whether a prerogative power exists and if so its extent. The second is whether the exercise of that power, within its limits, is open to legal challenge. This second question may depend upon what the power is all about: some powers are not amenable to judicial review while others are. However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that. This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament…"

        There were no dissenting voices amongst the eleven judges and they spoke as one on this, so it is absolutely watertight…

        Once the court thought this issue was justiciable Bojo was toast all day long.

        And referring to legal precedents from 1611 shows how amazing this ruling is – they’ll be talking about this for centuries.

        • Dukeofurl 2.1.1.1

          Its a nonsense judgement , where they have worked backwards to come to their decision. The huge swings between different courts decisions is a clear sign of their political agenda. We can see what they intended all along as the say 'what parliament does now is in the hands of the Speaker'

          The UK Speaker isnt like a Pelosi who has political power to decided the sessions of parliament will or wont occur, the job is only a neutral arbiter of debate – although thats gone out the window with Bercow too

          Prorogation has alway been used for political reasons, whether its for a few days between annual sessions – a bit like a restaurant have no diners between sittings to clear the room and tidy up – or a deliberate move like Attlee did to frustrate the delaying actions of the House of Lords against his agenda in the late 1940s.

          If Corbyn becomes PM and tries to get his polocies through parliament he too will find the House of Lords ( which wouldnt have a labour majority) will delay and frustrate his law changes .

          But now he cant do what Atlee did, as they will go straight to the Supreme Court to overturn any prorogation which cuts off any maneuvering in the unelected swill that is the House of Lords.

          Careful what you are glad about

          • Wayne 2.1.1.1.1

            Corbyn, if he becomes PM, won’t be able to implement his overall agenda. There is no majority in parliament for that. He will be able to go to the EU, and who knows, negotiate a new deal which then goes to a fresh referendum. The Tory rebels would have to vote for all of that, starting with voting for no confidence against the Boris government.

            There is no change of government unless the current government loses a vote of no confidence.

          • Sanctuary 2.1.1.1.2

            I am sure the learned judges of the UK Supreme court will give your opinion on their decision all the due weight it deserves.

            • Dukeofurl 2.1.1.1.2.1

              The 3 Judges of the highest England and Wales Courts disagreed. The Northern Island judges disagreed. A Scottish judge disagreed but was over ruled on appeal.

              It just wasnt justicable as it was a political question.

              The Supreme Court Judges keep saying its not about Brexit, when it is

              • Dukeofurl

                prime example how Hale & Co were totally focused on ONE thing – Brexit

                "The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect has been put before the court.’

                Surely not a legal argument at all but a worn out Brexit doom one.

                The public voted in referendum for exactly such an extreme effect and parlaiment has tooed and frooed over every Brexit or not decesion with the Speaker like Hale did throwing conventions to the wind.

          • Sanctuary 2.1.1.1.3

            "…If Corbyn becomes PM and tries to get his polocies through parliament he too will find the House of Lords ( which wouldnt have a labour majority) will delay and frustrate his law changes…"

            What are you talking about? Off the top of my head the Lords, in theory, can only at most delay legisation for up to two sessions in one year.

            • Dukeofurl 2.1.1.1.3.1

              The current session of Parliament – which Johnson cant now terminate began on 21 Jun 2017.

              So 27 months would count as one session.

              Atlee had to wait 3 consecutive sessions, which he manipulated by a prorogation to created a short session. Without one, a session could like the current one run for more than 2 years- which I think is the longest since some time in the 1600s. Yet the judges said it was unlawful to end it to 'frustrate the work' of parliament

              There is a convention that policies that are mentioned in the partys manifesto arent delayed by the Lords. Thats only a convention, which as we have seen, could be thrown away .

    • Peppermint Sly 2.2

      You don't understand the constitution.

      The issue isn't whether Boris was wrong to have prorogued Parliament. The issue was the matter is for parliament to decide. It is not a matter for the Courts.

      They have used circular arguments. Proroguing Parliament is not justiciable. But they said if it WERE justiciable, there would be no offense to the separation of powers. Then they just treated it as justiciable.

      Every historical example they talked about of the courts limiting prerogative powers were when they were contrary to statute or common law.

      Here there was breach of neither statute or CL. The judges made new law. They said Johnson hadn't given a reasonable case for a long prorogation, as it would prevent Parliament examining Brexit.

      The Parliament has had 3 years to do so. It has passed laws stopping the PM negotiating. It has had 3 years of examining Brexit – and enough time to demand an extension to Article 50.

      The judge's said prorogation can't be considered a parliamentary proceeding. This has massive implications. It means Acts of Parliament are open to being set aside if there is a procedural defect of royal assent or legislative proceeding that can be claimed – that's per the former First Parliamentary Counsel Sir Stephen Laws QC.

      That means that parliamentary supremacy in Britain itself is now gone. Because the courts can now hold to judicial review any Act of Parliament and rule statutes null and void, basically based on their political preferences under the guise of procedural problems.

      And no one can know what they are – because there is no statute. It's just whatever the courts decide is unreasonable. Like the longest parliament in 400 years being prorogued after 3 years examining a single issue.

      Private members bills can't be killed off now. A government can't act politically whilst the opposition acts totally politically.

      Incredibly, the Supreme Court made no mention, not once, of the constitutional remedy of 'a general election'.

      The way to resolve the current constitutional dilemmas is a general election. But that is being denied under a conspiracy of rogue MP's, judges, and others acting as enemies of the people.

      It's ridiculous. The Prime Minister is being held hostage, and the people are being set aside and told that Parliament, not them, is the power in the land.

      It's absolutely ridiculous. There is no parallel to the English civil war. This is not parliament and nobles versus Crown, this is Parliament against Crown and the people.

      Ridiculous.

      • greywarshark 2.2.1

        Edit:
        Peppermint Sly

        Ridiculous. Your faith in everything is shaken. If the constitution is to be played round with let it be on the side of the conservatives.

        The Constitution is an agreement by a set of people that everyone has abided by for seemingly aeons. Until it has apparently let an egregious action to the disadvantage of the understood roots of the UK and its people, go to the point of absurdity.

        Whenceupon my children it has become a Lewis Carroll parody, not the other way round. Hence the Supreme Court has gathered its intellectual capacities, examined the situation and pronounced as the only appropriate body with gravitas to do so.

  3. Sanctuary 3

    Oh and the quorum for the UK parliament is only 40! So the Tories boycotting will not prevent the house sitting.

  4. Wayne 4

    If Boris has no deal by 19 Oct, he has to ask for an extension to Jan next year. Lets say he does ask for an extension. He gets a deal and parliament votes against it. What happens then?

    If he (and the conservatives) resign, there isn't necessarily an election. A new government could come in and go right through to 2022 under the fixed term legislation. It couldn't do much. Though I guess it would ask the EU for more changes to the deal that has been rejected. The EU might/would refuse.

    The current parliament may not are able to agree on anything of substance. Not a deal, not a vote of no confidence, not an early election, not a referendum, not a repeal of Art 50. So far the only thing it can agree on is that it is against "no deal".

    It seems hard to imagine the current situation could last till May 2022 when the next election is mandatory, but who knows, it might.

    A government in office, but not in power. Just keeping the "machine" running.

    • Stuart Munro. 4.1

      Sounds almost as ineffectual as the government you were part of Wayne.

    • lprent 4.2

      Sure, it is possible that another party or even the conservatives may form a government.

      But as I am keeping count I think that all of the other moderately major parties in parliament have now called for new elections.

      Politically to not go for another election within a reasonably short space of time would probably consign any parties complicit in it to oblivion.

      Of course the conservatives appear to be facing that already based on the chop that the Farage party made into their electorates in the EU elections. It shows in the delight with which Farage bounced up with his support for another election. My guess is that the support he is after is pretty shallow.

      A government in office, but not in power. Just keeping the “machine” running.

      Happens quite a lot when you look at history. Usually when there is political impasse within major parties. Look at the Corn laws for instance.

      • Sanctuary 4.2.1

        "…but as I am keeping count I think that all of the other moderately major parties in parliament have now called for new elections…"

        To paraphrase, everyone wants an election, as long as it is an election that suits them.

        The problem is no one trusts the Brexit rump Tory party to not try and pull a fast one by setting an election date after the 31st of October, presenting a no-deal Brexit as a fait accompli. Such is the farcical levels of mistrust the British political class has descended into!

        If Labour were still run by anyone other than Jeremy Corbyn the path would be clear. The Labour plan to form a caretaker government, negotiate an extension, come up with a deal and have a second referendum of the deal or remain would be the clear and obvious path. But those fucking snakes in the grass, the yellow Tories (AKA the Liberal-Democrats, a motley bunch of entitled austerity enablers, managerialists, carrerists and chancers) occupy the radical centre – they represent the white collar technocrats of the neoliberal establishment, privately educated and authoritarian middle class shysters who have done well from Thatcherism. They hate Corbynism even more than than they hate Brexit. They'll try and grow their brand by exploiting the polarisation of Brexit with a policy born from the extreme centrism of establishment autocracy – simply cancel article 50 and ignore the referendum. They've deliberately done this to prevent Corbyn becoming a temporary PM.

        I am still picking a no-deal Brexit because it is currently the default position and unless someone fresh like Corbyn turns up in Brussels the EU is unlikely to grant another extension and because the decadent British ruling class is utterly unfit to run the country and the Oxbridge elites are utterly paralyzed in everything except a determination to keep out Corbyn's radical program.

        We will know soon enough if Corbyn will be given his chance to be PM and thread the eye of the Brexit needle.

        • greywarshark 4.2.1.1

          A government in office, but not in power. Just keeping the “machine” running.

          Is that a hint about the case in NZ. Is that the Gnat -mind; have they gone from we wuz robbed of the election, to well we will watch over it and give them a hard time and limit what they do until we the Chosen, can take the reins again and continue driving the country into the sea.

          • Wayne 4.2.1.1.1

            I wasn't suggesting that.The current NZ government is in power, not just in office.

            Whereas clearly Boris Johnson is not. He has yet to win a Commons vote. He can't get an election, he has not been subject to a no confidence vote. Even he is, and he loses, then the next government may have exactly the same problem.

            An election is desirable, but clearly that won't happen until after Johnson writes to the EU for a extension as he is legally required to do. Assuming there is not a deal in the meantime.

            But would the Commons vote for a new deal, even if Johnson gets one? They failed to vote for the May deal three times in a row.

            It is easier now to see what a bind May was actually in.

    • Dukeofurl 4.3

      A loss of confidence motion on a simple majority will force a new election if a new government cant be formed in 14 days.

      The Israel Solution.

    • mikesh 4.4

      I'd have thought that the crown would have a prerogative when it came to matters involving sovereignty.

  5. mosa 5

    The yellow Tories is a perfectly apt description.

    Their behaviour of late is not surprising considering they were a breakaway of old Labours right ( Social Democrats ) in 1981 and have been politically irrelevant until Cameron needed them in 2010.

    They have forever aligned themselves to the Tory cause since.

    Thoroughly enjoyed your analysis Sanctuary.

  6. Obtrectator 6

    The more I learn about the 2016 referendum, the more I'm compelled to the conclusion that it had and has no legitimacy. Too many people disenfranchised, for one thing. A badly-worded question on the voting form. Wildly misleading information presented about the issue. Possibly illegal conduct by some campaigners. And a wafer-thin outcome that those who supported it now claim as an absolute mandate, and full justification for whatever kind of chicanery they believe they can get away with.

    To me, that result is like taking a still showing someone with their eyes closed and claiming they were asleep, when the full video clip makes it clear they were only blinking. Or that old trick of pulling a single phrase out of its context in a damning theatrical review, to make it look as though the critic was giving out unstinted praise. It happened to catch a single untypical moment in time and space, and now it's being made out. quite wrongly, to represent the whole continuum.

    • Dukeofurl 6.1

      "I'm compelled to the conclusion that it had and has no legitimacy. "

      Thats not how democracy works, a majority voted in quite a high turnout for leave. Wafer thin is your own idea , which you would claim as a 'win' if the result was reversed.

      The question was simple, thats whey the terms "leave" or "remain" were used.

      • Obtrectator 6.1.1

        You obviously haven't read my arguments with any attention. And democracy does not "work" by excluding people from participating in the process when they have a very real stake in the outcome. Watch that film "Postcards From The 48%", and see if you still think the referendum was squeaky-clean.

    • greywarshark 6.2

      A very clear summation of the falsity inherent in the EU Referendum that the Conservatives guided through, and the unbelievable decision to make it binding. Treasonous. And they should be put in stocks till they are covered with rotten tomatoes (though that is food waste, just go to the stocks and throw your paper coffee cups and plastic at these plastic men.)

  7. Gosman 7

    Ultimately none of this really matters long term. The real question is not whether Boris Johnson acted unlawfully but whether enough of the British people are convinced that he is damaging British democracy or the British Parliament is damaging democracy. If Boris Johnson can win the next election with a strong majority what is happening now will be irrelevant.

    • Stuart Munro. 7.1

      You know, not everyone favours the idea of a post-truth society. The unanimous finding that Boris acted unlawfully will incline a lot of genuine conservatives to abandon him, just like his brother and his dog.

      • Gosman 7.1.1

        Except I suspect that most people were well aware of the reasons Johnson prorogued Parliament BEFORE the Supreme Court ruling. All that did was confirm it. It is unlikely to make Conservative supporters or Brexiteers jump ship to Labour or even the Lib-Dems.

        • Stuart Munro. 7.1.1.1

          They're more likely not to vote, or to stimulate the party to produce something more credible than a cross between a refugee polar bear and an unmade bed.

        • Drowsy M. Kram 7.1.1.2

          "Except I suspect that most people were well aware of the reasons Johnson prorogued Parliament BEFORE the Supreme Court ruling. All that did was confirm it."

          You must be reading from a different script. The court ruling did not confirm Johnson’s reasons for proroguing parliament.

          Lady Hale stated (fairly early in her reading of the rationale for the unanimous ruling) the Supreme Court's conclusion that there was “no need” to consider Mr Johnson’s motive for the extended prorogation. All they needed to consider (to reach their judgement) was the effect of prorogation.

          Outcomes, Gosman, outcomes.

      • greywarshark 7.1.2

        Could that be the tale that wags the dog and now he is rudderless completely? Oh dear.

        • Stuart Munro. 7.1.2.1

          Like Bonzo & Reagan? I'd hesitate to attribute Boris's career of Euroslander to an animal, however territorial – they generally play a straighter game.

  8. Best way forward as I see it is for vote of no confidence which the PM loses, the opposition form a unity government with the mother and father of the house leading it, a brexit exit is worked out and put to the people in a simple take it leave or remain referendum.

    • Gosman 8.1

      Corbyn has ruled that out as an optiobn. He will need to park his ego before that is a viable option.

    • Dukeofurl 8.2

      Can you see the flaw in that
      ', the opposition form a unity government with the mother and father of the house leading it"

      A new government has to WIN a vote of confidence either immediately or after thier Queens speech or its curtains for them too.

      Rather than that unhappy collision of whatifs, a new election sooner rather than later is required.

      The Current father of the House is Kenneth Clark who was recently expelled from the Conservative party, he is nearly 80 years old.

      • The Al1en 8.2.1

        Well of course they wouldn't do it if they didn't have the numbers, and seeing the cons are a minority by 40 odd votes, it's not such a what if as you'd like.

        Ken Clarke as joint leader, 80 or not, would be a compromise candidate that keeps the ejected Tories happy while the business of getting a exit deal sorted. I wouldn't expect the unity government would sit for too long whilst doing so.

        • Dukeofurl 8.2.1.1

          What can a Unity government do to change the Irish backstop option that May then Johnson hasnt thought about and the EU says they cant change anyway .

          Any change to the Irish border issue without the consent of the DUP could run foul of the parallel consent provisions of the Northern Ireland Assembly which mandate consent from both Nationalist and Unionist sides and lead to further court action.

          • Gosman 8.2.1.1.1

            The mandate for consent in NI does not include issues surrounding Brexit. If it did Boris would not be even contemplating a No Deal as the Nationalist's in NI are completely opposed to it.

          • The Al1en 8.2.1.1.2

            Who knows what they can get passed without relying on a split Tory party, it could well be nothing, but a unity government would be constitutionally legitimate and with a coming together of the opposition parties and rebels it deserves a shot at it.

            A general election is needed, but I'd be inclined to sort out the mess first, to put it to a referendum and take it out of the no deal minority, before calling it.

            • Dukeofurl 8.2.1.1.2.1

              A Unity government of Labour, SNP, Liberal Democrats and some expelled Torys, who all have the magic words formula to improve the unchangeable EU leave agreement?

              1)LD will do everything and vote against leave, and probably SNP will follow them – thats a bit over 50 Mps now

              2)Some labour Mps are very pro Brexit.

              Its fantasy politics

              • The Al1en

                Okay, fantasy it is then, but I suspect there will be no election without an extension or a deal and a locked in referendum.

                As the public didn't vote for a damaging no deal exit, at the very least they deserve the chance to confirm or deny the hardline brexiteers and choose a soft leave or stay put.

  9. IPOIPO 10

    Leave 52%, Remain 48%.

    The people are the supreme authority on this issue.

    Remainers and the Supreme Court have acted beyond their station and broken trust.

    • joe90 10.1

      Care to point out how the Supreme Court broke trust?

    • lprent 10.2

      Nope. Your statement just shows that you are a ignorant fool who knows bugger all UK history and the elements that make up the constitutional law there.

      The Supreme court just looked at one tactical decision by the government – it didn’t look at brexit. The UK will have to keep bumbling down that disaster quite separately.

      The government dismissing parliament without its consent was the issue for the Supreme court. This was the main proximate subject of a civil war there in the 17th century, along with a lot of issues about religion and unauthorised taxation. The constitutional basis was built into the UK’s system by the application of blood and the head of a king. You’d have to be a complete fool to say what you just did.

      It was then explicitly validated during the restoration.

  10. Parliament is sovereign, does that include the right to outsource democracy to Brussels? I don't think so, and it's not what the British people want.

    • greywarshark 11.1

      None of the British people are going to get what they want from splitting up with Europe only they have been bamboozled for the lack of a decent practical and devoted government for decades as we have. Plus it was a hair trigger result and it was gained by outright lies by Farage and his mob. What a shower they are!

  11. Ad 12

    Of the English-speaking democracies, New Zealand, Canada and Australia can enjoy a little moment of The Smug.

  12. greywarshark 13

    This is a good bit of political forecasting from Aljazeera.

    https://www.aljazeera.com/indepth/opinion/corbyn-sturgeon-alliance-save-brexit-britain-190705104539385.html

    Jamie Maxwell thinks that Corbyn and Sturgeon could get make a useful liaison and draw the tiny ones in for the numbers.

  13. DS 14

    Disclaimer: I can't stand Boris.

    With that out the way, I'll just say that this is a monstrous decision by the UK Supreme Court. Look, I realise people hate Boris, and Brexit has turned into a culture war, but honestly, this is basically a power grab by the judiciary.

    Prorogation and Dissolution are matters for the Royal Prerogative, being High Political Decisions. Prorogation is not justiciable, and no Act of Parliament has ever taken that power from the Executive. This decision is not too far off the courts cancelling an election because they decide that the date was selected for partisan reasons.

    The side-effect of this decision will, of course, be the Americanisation of the British judiciary – a judge's politics will become more important than their legal ability. Brexit? It'll come and go. This decision? It'll haunt Britain for generations.

    • lprent 14.1

      You simply don’t know your own history (I’m presuming that you are some kind of pommie). There is no coincidence that the decision quoted a precedent from 1611 because that century was when that particular constitutional principle was laid down in the UK.

      Exert yourself and read the primer of the wikipedia references on the short and long parliaments in the 17th century after that. This was law laid down in the blood of the English civil war and the eventual restoration between the power of the crown and the power of parliament.

      It isn’t a matter of the courts ‘taking’ power – it is a case of them recognising the long standing laws. It is that parliament, not the crown and its ministers, has control over itself and the courts recognising that. Until parliament or the crown passes law to remove that, then it is the law of the land

      In particular you should look at the conditions of the restoration and the restrictions that it placed on the crown – including the explicit condition that parliament controls itself – and the crown does not.

      Incidentally, the American system was modelled directly on the English separation of powers. This is obvious to anyone who looks at it. It was just more explicit

      Personally I’d suggest that if you don’t want to start a new civil war, that you’re safest to learn from the lessons of history – so start trying to learn it rather than learning how to excessively capitalize dumbass ignorant assertions..

      • DS 14.1.1

        With the greatest respect, I am aware of the relevant History (and Law). Believe me, I have a decent background in both. Your background seems to consist of insulting people (the irony? I hate Boris too).

        Parliament, if it chooses, could have stripped the Executive of its ability to Prorogue. Or passed a statute requiring a "non-partisan" motivation. It never has, however. The Executive has always had the right to Prorogue Parliament – Clement Attlee did it – and up until the Fixed Term Parliament Act, it had a clear right to Dissolve Parliament and call fresh elections. As I have said, this decision is as much a constitutional outrage as the courts deciding to cancel elections.

        Or to put it plainer – the judiciary have pulled a constitutional coup, and no-one cares because all you can see is Boris and Brexit getting screwed.

        Edit: I’m a Kiwi. Specifically, a loyal supporter of the New Zealand Labour Party (hence me posting here).

        • McFlock 14.1.1.1

          Except the elections are legislated by parliament.

          Bojo tried to get the Queen to prorogue in order to stop parliament fulfilling its constitutional duties.

          This was a conflict between the executive's right to prorogue and parliament's right to challenge and direct the executive.

          The court chose democracy over oligarchy.

          • DS 14.1.1.1.1

            Elections/Dissolution have been limited via the Fixed Term Parliament Act. There is no such Act here – and if Parliament wanted to limit the Executive's prorogation power, it would have done so.

            This is the courts legislating over the head of Parliament- the definition of oligarchy.

            (Pre-FTPA, Dissolution was literally just the PM asking the monarch for an election. In short, prerogative power, like prorogation).

            • McFlock 14.1.1.1.1.1

              The PM is not the "head of parliament". If anyone, the speaker is.

              From the judgement:

              Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples, in the Case of Proclamations the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in the case of Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508, the court prevented the Government of the dayfrom seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative. More recently, in the Fire Brigades Union case, the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative, and was not deflected by the fact that the Government had failed to bring the statute into effect. As Lord Browne-Wilkinson observed in that case at p 552, “the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body”.

              This isn't the courts grabbing power, it's the courts preserving the power of the legislature against a capricious PM.

              • DS

                Those examples are situations where the Prerogative was being used to subvert statute. There is no such situation here – there is no statute to be defended. Honestly, seeing as Parliament holds the Executive to account generally, one wonders whether prorogation (even in mundane situations) is even possible now.

                • McFlock

                  They were examples that prerogative powers aren't absolute.

                  The judgement is pretty clear: the power to prorogue parliament cannot overrule the ability of parliament to follow its constitutional functions. Yet that was the primary objective of bojo's request to the Queen.

                  A "mundane" prorogation doesn't deny parliament its will and obligation to pass statutes and challenge the government of the day. This one did. Hence the difference is clear, and one therefore wonders why anyone would wonder such a thing.

                  • Peppermint Sly

                    But what constitutes a mundane prorogation versus I suppose a substantive prorogation?

                    The politics of the Judiciary. That and that alone. What else can it be? It is judges now who decide if a prorogation is politically permissible. And as DS says, the power to call an election has already been proscribed by the Fixed Term Parliament's Act. Now, what is to stop a set of Judges' from saying that an election date it not to their political preference?

                    And Acts of Parliament are now open to being set aside if some procedural defect can be found in the procedure for signifying Royal Assent – or in the process that preceded it.

                    And the basis of the suit was that the advice given by the Prime Minister to the Queen was unlawful.

                    If every executive decision can be challenged on the basis that somewhere in its history someone gave some inappropriate or challengeable advice, then no one will ever be able to rely on any such decision being lawful with any sort of confidence.

                    That's the point of Stephen Laws QC. It means all Acts of Parliament are now subject to a judicial review as to procedure, and no one can know what the procedure is. What constitutes challengeable advice?

                    The only benchmark is the political preference of the judges.

                    Which is DS's point.

                    It means the Judges have assumed for themselves the role of a court of the Republic, and repudiated constitutional monarchy.

                    If the precedent is applied to New Zealand in a similar way, it would make the Speaker of the House more powerful then the Governor General – able to contest Royal Assent on the basis of alleged procedural defect.

                    Brexit or no Brexit, this is constitutionally cataclysmic.

                    The only answer is an election – and the courts and the Parliament and the Speaker have conspired to withhold it from the people.

                    Oligarchy is absolutely when an unelected court purport to override the will of the electorate and deny to them their ability to choose their own representation.

                    If Brexit is so unpopular – why is there no allowance for an election? All these talks about 'democracy' and no reference to an election? An election is the most democratic thing you can do.

                    • McFlock

                      jesus, histrionic much? cataclysmic? repudiated constitutional monarchy?

                      If the precedent is applied to New Zealand in a similar way, it would make the Speaker of the House more powerful then the Governor General – able to contest Royal Assent on the basis of alleged procedural defect.

                      Not "alleged". Proven. The crown, executive and parliament are all subject to the law. If they don't follow the law, their actions are just as unlawful as if you or I had not followed the law. To hell with 1611, that principle goes back to 1297.

                      Anyone acting under legal advice still has to make sure that advice is lawful. If my lawyer tells me it's legal for me to burn down a house, I'm still legally culpable if the courts find my arson was in fact illegal.

                      It's a benchmark of western liberal democracy that the rulers are subject to the law. If the courts find that lawful powers have been exercised unlawfully, those powers were not lawful. I can trespass people from my property, but not if I leased it to them. In which case my trespass order is unlawful. Same deal with bojo – he entered into the process as an autocrat, and the courts told him he was subject to the law.

                      British law, ironically.

        • Craig H 14.1.1.2

          If we were talking a 1-2 week prorogation, maybe, but 5 weeks is well outside recent norms, especially given the current circumstances. Also, it's quite hard for Parliament to legislate to restrict Royal Prerogatives when the government that advises on their use normally holds a majority in Parliament so will not pass such legislation. Being justiciable at least leaves some check to government simply proroguing Parliament for 11 months a year.

          • DS 14.1.1.2.1

            If Parliament doesn't legislate, it is not the job of the courts to legislate for it. Meanwhile, Parliaments vote to limit the prerogative powers all the time (the FTPA in the UK, or the various measures to clean up after Muldoon here).

            If Parliament objects to the prorogation, it can pass a motion of no-confidence when it reconvenes (and it has to reconvene. The Government needs Parliament to raise funds).

    • Peppermint Sly 14.2

      You're exactly right of course.

      Parliamentary sovereignty over the prerogative powers is in it's ability to modify them via statute.

      In paragraph 44 of the judgement, all examples given of constraining prorogation are statutes – and it's a very limited list.

      In the absence of a statute, the Supreme Court has created one. As a result, the Speaker of the House and rogue MP's in conjunction with the judiciary are now the supreme political powers in Britain – and none of them apparently can be unelected.

      The Parliament currently sitting is the longest in 400 years. And the rogue MP's preventing the administration of Brexit aren't even answerable to their constituencies. Because the Parliament via the Fixed Term Parliaments act won't even allow an election to be called on the seminal issue of Britain since the civil war.

      The core constitutional convention at issue is that parliament is meant to be representative of the people. That has been destroyed.

      The second is that the courts are not entitled to promulgate laws – they have now done so, and exactly as you say the courts of England are henceforth totally political.

      Britain's constitution is parliamentary government, not government by parliament. The parliament consists of the House of Lords AND the Commons AND the Queen.

      The Supreme Court is an enemy of the people.

      The parliament has now proven itself and enemy of the people. And the unwillingness to call an election over such a signal issue proves that it understand this very well.

      If an election were called tomorrow, all anti-Brexit parties would be destroyed.

      You know what the core constitutional premise is here? Far from the pretty ridiculous allusion to the short and long parliaments?

      Power can only be wielded by those whom the people can remove.

      Lprent talks about civil war. Well he might be right. Because 11 individuals in the Supreme Court have no right to destroy the result of the single largest vote in British history.

      • Craig H 14.2.1

        Courts can and do promulgate laws by ruling on issues which have not previously been legislated before or ruled on before – that's literally what common law is, and prior to Parliament existing, common law was one of the main ways criminal and contract law developed.

        • DS 14.2.1.1

          There is a wee difference between plugging a gap in contract law, and screwing with the Royal Prerogative.

          • McFlock 14.2.1.1.1

            Suggesting that the Royal Prerogative is only valid if the advice upon which it is exercised isn't a pack of lies is only a revelation for tories.

          • Craig H 14.2.1.1.2

            Not really – both are examples of existing in areas not covered by legislation. Besides which, at least some criminal law in England and Wales is common law, including some of the definitions of murder – it's not just plugging gaps in contract law.

  14. Pat 15

    A prescient series of lectures from the BBC

    https://www.bbc.co.uk/programmes/m00057m8

  15. Andre 16

    The decision was the unanimous ruling of all 11 justices, yeah?

    How would that unanimity come about if this was an outrageous over-reach by the court, or even just a little bit unclear as to the merits of the issue?

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