Damning...
But right...
UK Supreme Court unprorogues Parliament
British Prime Minister Boris Johnson's advice to the Queen to suspend Parliament was unlawful and therefore the House's prorogation was also illicit and should be recalled as soon as possible, said a judgment handed down at the Supreme Court this morning. The surprising ruling [PDF] from the Supreme Court was the unanimous …
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Tuesday 24th September 2019 12:15 GMT Charlie Clark
Re: Damning...
No, but declared the act was unlawful, ie. illegal, should someone decide to make a case, which I think they will at some point. Presumably Bojo will resign before he Parliament decides to hold him in the contempt which he deserves.
Difficult to fault the judgement on points of law, but that was the impression last week when the government's legal team (B-team at best) made their argument, that the court wasn't allowed to decide.
Government without a majority with a leader who broke the law…
PS. the IT angle is surely GNU (government of national unity)
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Tuesday 24th September 2019 12:53 GMT S4qFBxkFFg
Re: Damning...
"the act was unlawful, ie. illegal"
I think that "unlawful" and "illegal" are not exactly the same, especially when it's the legal profession talking.
To declare that I am the Queen is unlawful, as that is not how (these days) one becomes a monarch according to our laws but it is not, afaik, illegal for me to do so.
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Tuesday 24th September 2019 16:15 GMT TRT
Re: Damning...
You aren't allowed to impersonate the Queen for the purposes of personal gain of the perpetration of a fraud or deception for other pecuniary gain.
But you are quite right... it isn't illegal to declare that you are the Queen, a queen, half a Queen on alternate weekdays, or even Brian May, but it is unlawful because it is without a lawful backing. Unless you actually ARE Brian May.
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Wednesday 25th September 2019 08:45 GMT flayman
Re: Damning...
On unlawfulness and what that means for the government, it's not like the PM behaved criminally. This is a public law matter and unlawfulness only means that the public body overstepped its authority by exercising a power that it doesn't have or by exceeding the limits of that power. It happens all the time, but it's not usually the PM who is found to have done this. Other ministers are routinely found to have exceeded their authority. It also doesn't imply malicious intent. The remedy is usually that the decision is quashed and any actions flowing from it are nullified, which is what has happened here.
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Tuesday 24th September 2019 13:04 GMT ThomH
Re: Damning...
Pedant attack! Unlawful and illegal aren’t synonyms in their legal usage, e.g. the definition of murder requires that the killing be unlawful, plus some other requirements*. They approximately mean not according to the law versus directly contravening the law. Although not everyone even seems to agree about that. It’s a slightly fuzzy thing relating to the constitution not being particularly explicit in many areas.
Anyway, this was definitely the former rather than the latter. It’s harder to be lawful than merely legal.
* malice aforethought mainly, which, ummm, doesn’t really mean malice, just intent.
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Tuesday 24th September 2019 13:18 GMT Doctor Syntax
Re: Damning...
"Presumably Bojo will resign before he Parliament decides to hold him in the contempt which he deserves."
Should but not necessarily will. Parliament has a couple of options if he doesn't. On would be a vote of confidence, the other is to charge him with contempt of Parliament. In the latter case I wonder if that results of him being kicked out of his seat as well as out of No 10. Presumably Cummings would also be in their sights.
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Thursday 26th September 2019 10:48 GMT Anonymous Coward
Re: Damning...
Having previously worked to help implement the IPSA expenses system I can confirm that 98% of politicians and their self appointed spouses/mistresses/proxies/whatever are exactly the same. Not a shred of decency amongst them (although I did have to chuckle at the irony when one MP's proxy, irate at having to navigate the complex signing on process in order to claim for a £3,000 rug, ranted that she was paying my wages and therefore deserved better service...)
Anon for obvious reasons due to having signed the Official Secrets Act
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Friday 27th September 2019 14:55 GMT BitEagle
Re: Damning...
As warming as it may be to the cockles of your heart (or the heart of your cockles, if you are so inclined) to imagine BoJo receiving some rough justice from an armed robber in Wormwood Scrubs, the reality is that he did nothing wrong in proroguing parliament, it was in accordance with precedent, in accordance with the advice of the government's senior law officers, and his freedom to commit those actions was sanctioned in the High Court, by three of the senior judges in the country.
Let's try and avoid adding petrol to the flames...
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Wednesday 25th September 2019 07:10 GMT ravenstar68
Re: Damning...
Unlawful != Illegal
Unlawful - Not Authorised by law.
Illegal - Forbidden by law.
In the first case - no statute exists forbidding Boris Johnson's proroguing if parliament, however the courts ruled that in doing so for such a long time, he's effectively denying Parliament the opportunity to hold the Government to account . In determining this they took submissions from John Major that drawing up a new Queen's speech need only take around 5 - 6 days.
And yes I know the controversy over the cash for questions proroguing of Parliament. However this Judgement will make it harder for this and future Governments to use this as a tool to get round blocks by Parliament.
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Wednesday 25th September 2019 10:20 GMT Omgwtfbbqtime
Re: Damning...
Yes, and will also lead to any unpopular decision being challenged.
Say for example a "Government of National Unity" forms to block Brexit rather than facing General Election.
I can see this going to the courts as it is formed for the sole purpose of "stymie" the referendum result.
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Wednesday 25th September 2019 10:32 GMT flayman
Re: Damning...
"Say for example a "Government of National Unity" forms to block Brexit rather than facing General Election.
I can see this going to the courts as it is formed for the sole purpose of "stymie" the referendum result."
No. The forming of a government is a proceeding of Parliament. The courts can't touch it. If Parliament approves revoking notice under Article 50 and stopping Brexit, that is also a proceeding of Parliament. Parliament is sovereign. Why is this so hard for people to understand? Government is not sovereign. It requires the confidence of the House of Commons in order to govern. When the government tries to sidestep Parliament, the courts have a duty to preserve the separation of powers when such matters are brought before them. Acts of Parliament reign supreme. The referendum result has no legal or constitutional significance other than what Parliament decides to give to it. Nor do the courts have any say over whether or how a non-binding result is implemented.
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Wednesday 25th September 2019 12:29 GMT flayman
Re: Damning...
"I think a lot of people don't get the distinction between government and parliament. If things were going better here they probably wouldn't need to."
If only people would simply read the judgement. It's all of 25 pages and took me about half an hour. It explains very clearly what this is all about. These distinctions are very easily understood.
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Thursday 26th September 2019 10:47 GMT flayman
Re: Damning...
Parliament does not require the confidence of the electorate, meaning that there is no process to replace Parliament apart from a general election, which the public may not call. And they block offers of a GE because they don't trust Johnson not to use the date of the election to frustrate Parliament's ability to control the exit from the EU. If Johnson really wants change so badly, all he has to do is resign government. He doesn't want to do this because it would allow Parliament 14 days to attempt to form another government without the need for a GE.
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Wednesday 25th September 2019 11:11 GMT Dr. Mouse
Re: Damning...
Say for example a "Government of National Unity" forms to block Brexit rather than facing General Election.
I can see this going to the courts as it is formed for the sole purpose of "stymie" the referendum result.
It is more likely a "Government of National Unity" (or just another Government) forms to find a way forward with Brexit without just telling the EU "we're taking our bat and ball home because you're being mean to us" (a negotiation strategy which most school kids work out early on is unlikely to be successful).
Even so, the referendum result has no legal weight so the situation you specify couldn't be taken to court. As Leavers said they wanted so many times during the ref, Parliament is Sovereign and it is up to Parliament to implement the referendum result (or not) as they see fit. That's what Sovereign means, in this context.
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Wednesday 25th September 2019 10:10 GMT fajensen
Re: Damning...
Presumably Bojo will resign before he Parliament decides to hold him in the contempt which he deserves.
Nope: Parliament will prefer to ritually mutilate all of their sexual organs, rub the wounds with salt and chilli, while casting the antics on Twitch.tv, rather than doing anything that maybe even remotely, could result in parliament dealing with the unpinned grenade that Brexit has become!
--- Which of course means that Boris Johnson will be resigning exactly at the point in time where various procedural requirement and delays makes the 'October the 31'st Crash out' impossible to avoid.
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Wednesday 25th September 2019 10:31 GMT Dr. Mouse
Re: Damning...
Presumably Bojo will resign before he Parliament decides to hold him in the contempt which he deserves.
I doubt it.
However, many people have stated that this could actually be a good thing for BJ.
He has already set himself up as champion of the people over Parliament/the Elite (as laughable as this is). He is a populist, not concerned with the truth or anything else. He will merely present this (using weasel words so he can argue he isn't slagging off the judiciary even though he is) as the Supreme Court being another part of "The Elite" he has to fight against on behalf of "The People". This is likely to gain him more (or stronger) support.
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Tuesday 24th September 2019 16:58 GMT Benchops
Re: They didn't explicitly judge on that matter though.
They did implicitly though. Part of the Court of Session in Edinburgh's ruling stated that he had misled the queen. The government appealed against that ruling at the Supreme court in London who rejected the appeal, upholding the Court of Session's original ruling (including declaring the prorogation null and void).
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Tuesday 24th September 2019 17:13 GMT adam 40
Re: They didn't explicitly judge on that matter though.
The explicitly _didn't_ - they said there was no evidence.
And there is no higher court - the buck stops here.
Anyhow, the judgement told him how to do it properly next time, look at clause 59. If he has a good reason, (for example needing 3 weeks to set out the Queen's speech because of the massive backlog of Brexit legislation) he can do it again. Which he probably will.
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Wednesday 25th September 2019 07:30 GMT Anonymous Coward
Re: They didn't explicitly judge on that matter though.
>Anyhow, the judgement told him how to do it properly next time, look at clause 59. If he has a good reason, (for example needing 3 weeks to set out the Queen's speech because of the massive backlog of Brexit legislation) he can do it again. Which he probably will.
Unless, of course, MPs use the freshly re-opened Parliament to push through a bill requiring Parliamentary approval to prorogue Parliament in future (i.e. a majority of MPs voting in favour).
That would stop his second attempt in its tracks.
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Wednesday 25th September 2019 13:52 GMT Loatesy
Re: Ignorantia juris non excusat
Illegal means what you have done is break an existing law.
Unlawful means there is no law allowing you to do it yet but no law to strictly forbid it.
In other words what you have done is outside the law as it stands because it has never been done before so there is no law to strictly forbid it.
That's how this armchair solicitor views it. I now await the down-votes, will then declare them unlawful, and demand a re-thread. (It is as much arguing the difference between civil law and criminal law as anything else.)
I remember back in the day when a certain Home Secretary increased the sentences of the murderers of Jamie Bulgar, only for the courts to rule that said Home Secretary acted unlawfully. Yet said Home Secretary didn't break any law, he simply believed he had the power to do so and the courts ruled he didn't.
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Wednesday 25th September 2019 14:05 GMT flayman
Re: Ignorantia juris non excusat
"Unlawful means there is no law allowing you to do it yet but no law to strictly forbid it.
In other words what you have done is outside the law as it stands because it has never been done before so there is no law to strictly forbid it."
It's a possible answer to the question (we probably both found it here https://www.lbc.co.uk/radio/special-shows/the-mystery-hour/is-it-unlawful-or-illegal/), but it doesn't sufficiently explain it in a public law context. In this context, "unlawful" simply means that the public authority has overstepped its authority. Either it exercised a power that was not available to it, or it exceeded the limits of that power. In the present case, it is the latter. "Illegal" has several different meanings and there isn't really one that would apply here. It can mean that someone broke an existing law (criminal or civil) or it can refer to a law that is not formulated with sufficient precision so that its application can be reasonably foreseen. It probably has other meanings too, but those would be the most common under UK law.
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Tuesday 24th September 2019 15:02 GMT Paul Shirley
Re: Ignorantia juris non excusat
Luckily contempt of parliament does not need illegal or criminal actions. By ruling on the basis he has interfered with parliaments business, that's automatically contempt of parliament. Parliament can arrest him the moment he sets foot in the house if they don't feel like involving the police.
...and if he hides from parliament, that is also contempt of parliament ;)
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Tuesday 24th September 2019 16:58 GMT TRT
Re: Ignorantia juris non excusat
Understanding politics through the medium of Dr Who.
Lesson 1. Judging the actions of a Prime Minister.
There is a distinction between an illegal act, such as murder, and an unlawful act, such as making things up to get your own way.
I mean, if Boris had just gone into Number 10, called a cabinet meeting, declared everyone there to be a traitor and then killed them all, it would be illegal, right? Whereas if he were to lie in order to further his own cause that would be unlawful, but not necessarily illegal.
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Tuesday 24th September 2019 19:00 GMT Teiwaz
Re: Ignorantia juris non excusat
And the so-called "people" who foisted disco on the planet.
someone might say the same about Punk, Pop or Captain Sensible (god, I hated that song).
It's not disco I have issue with but the flares and tanktops I see myself dressed in in my faded photo album.
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Tuesday 24th September 2019 20:07 GMT Fred Dibnah
Re: Ignorantia juris non excusat
80's men's fashion was terrible, I agree - all mullets and suit jackets with the sleeves pulled up. But ladies' fashion was great - big hair, leg warmers and chunky jumpers, a la Stephanie Beacham and Emma Samms.
Or maybe I just remember it that way because I was getting laid a fair bit.
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Tuesday 24th September 2019 14:42 GMT Dan 55
Re: Damning...
And isn't lying to The Queen treasonous?
According to Private Eye they didn't lie to her, she told them how to do it.
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Tuesday 24th September 2019 12:21 GMT sbt
Doing the same thing over and over and expecting a different result.
Not unsympathetic to the grumblings as the EU has grown and the bureaucracy with it, but on balance it seemed better to stay in the tent; I'd have voted remain if asked.
However, given the current state of affairs, does putting the parliament back in session get the UK closer to resolving this? The Parliament has already rejected the deal negotiated with the EU, no deal, an election. Wouldn't it be better to take your lumps and end the uncertainty?
It's a shame a referendum for Northern Ireland's future wasn't offered when the Scots were asked.
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Tuesday 24th September 2019 12:44 GMT sbt
The status of Northern Ireland
Given the risk of further violence, not an easy problem. That's why I said it was a shame the question wasn't asked before. As I understand it, NI demographics have been gradually shifting over time and are now such that there would probably be majority support for leaving the UK, leaving aside the EU factors. I'm guessing the EU factors would also support remaining in the EU if/when the rest of the UK departs, as appears to be the case with Scotland.
Then again, we shouldn't be cowed by fear. That way, the terrorists/freedom fighters win.
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Wednesday 25th September 2019 08:39 GMT Nial
Re: The status of Northern Ireland
"As I understand it, NI demographics have been gradually shifting over time and are now such that there would probably be majority support for leaving the UK"
I'm not sure you understand it very well, NI benefits enormously from being part of the UK, I'm not sure many people want to pay EUR 50 to see a GP. There's a lot more trade with NI & the rest of the UK than with 'the South'.
"I'm guessing the EU factors would also support remaining in the EU if/when the rest of the UK departs, as appears to be the case with Scotland"
You're not making the mistake of believing the SNP are you?
A large majority here still want to be part of the UK, our problem is the unionist vote is split 3 ways so the SNP get elected. And they're the only ones you ever hear from.
BTW, an independent Scotland would be out of the EU for a considerable amount of time, and Sturgeon et al would have had us all out in 2014 without a thought. The current bloviation is
just convenient grievance mongery.
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Wednesday 25th September 2019 14:21 GMT sbt
The case with Scotland
To be clear, it's not a matter of me wanting Irish reunification or NI independence from the UK or even NI rejoining the EU; that is properly a matter for the citizens of the 6 counties.
The trade situation is not a surprise; England is the economic powerhouse of the UK, and where Great Britain's GDP is over £2 trillion, NI's is less than £40 billion (2017). The republic's GDP is about £280 billion. Of course GB will be the bigger partner; it's almost 8 times the size.
I never paid 50 € to see a GP while I lived in the RoI; I did get an ambulance, hospital admission, surgery and an overnight stay all in for 45 € once, though. So I'm not sure that NI citizens have too much to fear on that score. I'd imagine the EU would be pretty keen for any process involving NI rejoining the fold as part of the republic, or as an independent state to go smoothly, politically and economically. If for no other reason to be mud'n the eye for the British.
Sorry for the confusion, my comparison to Scotland was specifically in reference to the EU referendum results, where NI and Scotland produced majorities for remain (unlike England and Wales). I would not draw a parallel between NI and Scotland in reference to remaining part of the UK because the demographic and historic situation is significantly different, and NI haven't had a referendum in recent years as Scotland has (or at all).
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Tuesday 24th September 2019 16:22 GMT TRT
Re: The Irish reunification question is complex and not an easy thing to achieve ...
As a great man almost said once:
"The reason for my coming here has never been more clear. The union of the Northern Ireland and the Irish people will not be achieved by politics or by diplomacy, but it will be achieved. The answer has been here before us all along. An inexorable evolution toward a European philosophy has already begun. Like the first Europeans, these people are struggling toward a new enlightenment; and, it may take decades or even centuries for them to reach it, but they will reach it, and I must help."
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Friday 27th September 2019 10:37 GMT CrazyOldCatMan
Re: Doing the same thing over and over and expecting a different result.
The Irish reunification question is complex
And I suspect that Eire would like to wait until the current generation of 'loyalist' terrorists are dead before going for reunification - especially as the demographics of NI are gradually shifting to favour it.
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Tuesday 24th September 2019 11:24 GMT John Robson
Re: Damning...
The reason they voted against an election was that there was no way to stop Boris going ' OK, I've changed my mind it'll be on the 31st October and *dissolving* parliament...
And there is a major difference between prorogation and recess - in terms of what is actually shut down.
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Tuesday 24th September 2019 14:25 GMT Anonymous Coward
Re: Damning...
"Lock him up!"
My understanding of the relevant laws and documents is that there aren't any laws regarding this matter - there are interpretations of the constitution and precedence.
Precedence allows the PM to prorogue Parliament - effectively Boris's argument for prorogation and as PM he would normally have the majority of parliament supporting him. I think the Tories still had a majority at the time as I think the resignations/defections/etc happened after prorogation.
However, as Parliament effectively weren't represented by the PM between announcing prorogation and it coming into effect, the decision was that Boris's actions prevented parliamentary business taking place. This was unprecedented and would usually fall on the Speaker to try and force the house to follow convention.
Normal precedent would have been for Parliament to call a vote of no confidence, the Government to lose and an election would be called, but the 31st of October Brexit deadline was looming, so precedent was ignored and we end up in the current messy situation.
While I do not believe prorogation was the democratic way forward, the precedent of involving the legal system to resolve a constitutional matter will likely cause issues in the future as the Government no longer has the final say if a (private) legal challenge is brought and successfully argued in court. i.e. if this path had been followed for the invasion of Iraq under Blair on the basis that information provided was not correct, then potentially decisions could be rejected. While overturning Brexit/war decisions may be in the UK's best interests, not all cases will be favourable.
In the bigger picture, I'm not sure this outcome substantially alters the Brexit picture - Boris is still PM, he is still planning to try and leave on the 31st as he promised but he is being obstructed by remainers which plays into his election strategy. On the other hand, Parliament is too unstable to continue in its current state beyond the 31st of October (or sooner if legislation to delay past the deadline is put in-place) where we will likely see an election. In the meantime, we see a further delay as any legislation to potentially bind a future majority Governments decision would not last.
From that election, we then get to see the next stage but it is not clear what that would be.
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Tuesday 24th September 2019 16:30 GMT Jason Bloomberg
Re: Damning...
My understanding of the relevant laws and documents is that there aren't any laws regarding this matter - there are interpretations of the constitution and precedence.
"Parliament is sovereign" is clear cut, well known, and pretty easy to understand and comprehend, even for the layman.
Parliament can choose to lend its powers to other authorities and it thus allows the government to exercise prerogative rights and to prorogue when "for good reasons". But the key here is that lent powers are constrained by purpose and intent.
Where the Johnson Junta over-stepped the mark was in taking the piss, proroguing for other than "for good reason".
Everyone could see that; even those supporting such subversion when being honest with themselves. So it was guaranteed the Courts would, though the High Court dodged the bullet by pretending it was 'none of our business'.
Some people seem genuinely surprised by the Supreme Court ruling. I believe it was an obvious inevitability. Anything else would have meant ruling that parliament was not sovereign.
And we all know that it is. Though some brexiteers would prefer that we had a dictatorship where the government could do as it damned-well pleased.
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Tuesday 24th September 2019 16:43 GMT Dave314159ggggdffsdds
Re: Damning...
I wasn't surprised, but it could have gone either way.
For starters, Parliament _isn't_ sovereign. The sovereign is. Parliament has no role in government other than to advise the sovereign. The sovereign's power to prorogue Parliament doesn't come with a reasonableness test attached. But the courts seem to have decided that the sovereign is actually just the government's puppet.
Another argument that might have led to a ruling the other way is that it is not unreasonable to prorogue Parliament for 5 weeks when it was already taking 3 weeks off for conference season, and has not scheduled sessions for many available days in that time and afterwards. There was nothing stopping Parliament largely circumventing prorogation by sitting 7 days a week on their return and making up most of the lost time.
I think one would have to be quite partisan to convince oneself it was an obvious result either way.
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Tuesday 24th September 2019 17:05 GMT johnnybee
Re: Damning...
It's true that there were few parliamentary sessions planned, but prorogation (as opposed to recess) also prevents the sitting of committees, the submission of and response to verbal or written questions etc etc
The point being that it stops *all* parliamentary business, not just the sitting of the houses themselves.
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Tuesday 24th September 2019 17:14 GMT Dave314159ggggdffsdds
Re: Damning...
Yes, I didn't mean to imply otherwise. My point is that while the probabilities favoured the result we saw, it was far from a certainty. So a ruling in either direction shouldn't have surprised anyone, unless they were so partisan they'd convinced themselves it was a slam dunk.
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Tuesday 24th September 2019 17:19 GMT Dave314159ggggdffsdds
Re: Damning...
The power of the monarch has been increasingly limited pretty much throughout our history, notably Magna Carta, but mostly in many small steps. Oddly enough the Civil War itself didn't have a huge effect, apart from, obviously, the interregnum. The Glorious Revolution is what really set us on the path of constitutional monarchy.
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Tuesday 24th September 2019 17:41 GMT H in The Hague
Re: Damning...
"For starters, Parliament _isn't_ sovereign. The sovereign is. "
Errrm, I'm neither a constitutional lawyer nor a politician or a political scientist. But I get the distinct impression that, according to you, an unelected bureaucrat holds sovereignty in this country? Could you possibly explain in plain English how that fits in with any concept of democracy, let alone 'bring back control'?
(Incidentally, the Supreme Court (legally trained gentlepersons, methinks) seems to disagree with you: "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”." I think that refers to the Case of Proclamations against King James VI (http://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html). Apologies for posting that umpteen times today but it does go to the core of UK democracy - for those who believe in that. For non-UK readers: "the law" is not always written law in the UK, esp. where constitutional law is concerned, as the UK has no written constitution.)
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Wednesday 25th September 2019 06:05 GMT Stork
Re: Damning...
I have to pick a nit: The UK does have a written constitution - the problem is just that is is written on scraps here and there, and (a bit like the Bible), while there is agreement about the big lines, no-one are sure what all the right bits are, and there is no final edited version.
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Thursday 26th September 2019 09:23 GMT Teiwaz
Re: Damning...
Gathering it together, identifying and cleaning up the loopholes would be a worthwhile exercise.
Probably not a good idea, it would only end up starkly revealing what a tangled mess with little foundation beyond belief that it was consistent, sane or even fit for purpose.
It usually appears to me to resemble a badly written play.
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Wednesday 25th September 2019 11:31 GMT Charlie Clark
Re: Damning...
For starters, Parliament _isn't_ sovereign. The sovereign is.
Lady Hale and the rest of the Supreme Court would beg to differ as they made precisely this point in their judgement, which is now de facto law.
The Glorious Revolution and the Act of Union, amongst other laws, effectively put an end to the sovereignty of the Sovereign. Otherwise, why would the Queen be more or less obliged to accept the advice of the government?
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Wednesday 25th September 2019 12:38 GMT flayman
Re: Damning...
"For starters, Parliament _isn't_ sovereign. The sovereign is."
This is a meaningless statement. The sovereign is Parliament and Parliament is sovereign. The monarch used to be the government and the government used to be sovereign until the Case of Proclamations (1610) held that "The King has no prerogative but that which the law of the land allows him." This is all in the judgement. You should read it.
"Parliament has no role in government other than to advise the sovereign. "
This is utterly false and backwards. The government can only govern if it has the confidence of Parliament, particularly the House of Commons. Only Parliament can make law.
"I think one would have to be quite partisan to convince oneself it was an obvious result either way."
I'm a firm remainder and I firmly believed the Supreme Court would affirm the judgement of the High Court. I was gob-smacked that the ruling was unanimous against the government. I read the judgement in full and feel it makes perfect sense, but only the Supreme Court could have held what it did. Please read the judgement. It's illuminating.
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Tuesday 24th September 2019 17:51 GMT dajames
Re: Damning...
While I do not believe prorogation was the democratic way forward, the precedent of involving the legal system to resolve a constitutional matter will likely cause issues in the future as the Government no longer has the final say if a (private) legal challenge is brought and successfully argued in court.
Methinks you do not fully understand ... the Government has the final say, but the way the Government behaves -- the way it conducts its business -- is constrained by the legal framework within which it operates, which is intended to ensure that Democracy is respected.
The courts can't tell the Government that it has the wrong policies, only that it is trying to enact those policies in a way that is not supported by the Law.
My worry, here, is that a future government might attempt to reduce the power of the Courts, which would have grave implications for democracy.
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Tuesday 24th September 2019 17:59 GMT Ken Hagan
Re: Damning...
"While I do not believe prorogation was the democratic way forward, the precedent of involving the legal system to resolve a constitutional matter will likely cause issues in the future as the Government no longer has the final say if a (private) legal challenge is brought and successfully argued in court. "
I don't think so. A key part of the legal argument was that Parliament couldn't sort itself out because it had been prorogued. The court's intervention to restore Parliament was therefore required in order that it (the court) did not, through *inaction*, get involved in politics.
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Tuesday 24th September 2019 23:34 GMT Wellyboot
Re: Damning...
We're back to parliament as it was in the 16th C. with fluid alliances being formed around individual bills as they are tabled for debate. We're lucky the ancient laws & precedents brought into play through these court cases exist as I don't believe the current shower could come up with anything remotely similar.
The supreme courts judgement boils down to "You can close down parliament but not for this long"
If BoJo now steps down, the clock starts ticking for a forced election because I can't see anyone getting a majority in the house in the time allowed.
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Wednesday 25th September 2019 11:28 GMT Charlie Clark
Re: Damning...
While I do not believe prorogation was the democratic way forward, the precedent of involving the legal system to resolve a constitutional matter will likely cause issues in the future as the Government no longer has the final say
Lots of other countries have government decisions (and even laws) overruled the courts. In fact, it's a critical aspect of the separation of powers. Otherwise, as the Supreme Court argued, the government can decide it's had enough of parliamentary scrutiny. That door has now been firmly closed: the executive made a power grab and failed. Not only that but the attempt was ruled unlawful: do it again and criminal proceedings could be initiated. More unchartered territory but that's what the much-vaunted UK constitution is supposed to be good at dealing with.
Personally, I'd like to see Bojo done for Contempt or Parliament and Corbyn be sent down for being a waste of time. Then we might actually see some stuff being done.
Osborne to be the next Tory leader?
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Tuesday 24th September 2019 12:27 GMT Kevin Johnston
Re: Regardless of which side of the fence you are on.
If I remember the discussions correctly then this could actually cause major issues in the future specifically because it says the Supreme Court has authority over Parliament. This goes against the supposed seperation of powers which is presumed in how things 'work' in the UK.
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Wednesday 25th September 2019 04:47 GMT Mike 137
Re: Regardless of which side of the fence you are on.
It's not statute, but it is law. Our legal system is grounded in Common Law, which is essentially accumulated precedent. Of course we also have Statutes (written laws reviewed and passed by Parliament) and also Regulation (written law created by ministerial fiat and not reviewed by Parliament). It's overall a bit of a mess, but it's worked (more or less) for at around 300 years so far. However there's an increasing and worrying drift towards Regulation. This Supreme Court decision (although not setting any precedent) is a strong and welcome indication of resistance to the trend.
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Wednesday 25th September 2019 06:56 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"A "principle" not codified isn't actually a law."
Your statement is correct wrt to many countries/jurisdictions. However, the UK has:
- Statute law: laws adopted by Parliament, i.e. what you are referring to
- Common law: based on custom, assumed to have existed always, but not codified
- Case law: based on court decisions
Which country are you based in?
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Tuesday 24th September 2019 15:29 GMT Nick Kew
Re: Regardless of which side of the fence you are on.
The judgement addressed that question explicitly.
Quote: The Government argues that the Inner House could not do that because the prorogation was a "proceeding in Parliament" which, under the Bill of Rights of 1688 cannot be impugned or questioned in any court. But it is quite clear that the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.
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Tuesday 24th September 2019 13:09 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"And since "unelected judges" overruling parliament was one of the main complaints ..."
That sounds rather like hundreds of comments on the BBC website. It appears that quite a few folk are unaware that it was the PM (unelected, appointed by a party with a minority in Parliament) who effectively tried to overrule Parliament by proroguing it.
The Supreme Court has confirmed that, in accordance with UK constitutional law, Parliament is sovereign. The goverment/crown can indeed prorogue Parliament, but only in line with tradition/precedent, i.e. for 5 - 7 days, not 5 weeks.
As the SC states: "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”."
I get the impression quite a few folk are unaware of the distinction between the legislative (Parliament), the executive (government) and the judiciary (courts). Are they Brits unaware of the constitional law of their country? Or foreign folk who haven't been briefed properly? Am I just a grumpy sod?
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Tuesday 24th September 2019 13:15 GMT AndrueC
Re: Regardless of which side of the fence you are on.
I get the impression quite a few folk are unaware of the distinction between the legislative (Parliament), the executive (government) and the judiciary (courts). Are they Brits unaware of the constitional law of their country? Or foreign folk who haven't been briefed properly? Am I just a grumpy sod?
It could be all of the above. But, for the record, you don't sound all that grumpy to me.
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Tuesday 24th September 2019 14:20 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
Brits are totally unaware of our constitutional laws - hence brexit, and the voters who voted to "punish" the EU for the faults of the UK government, and "take back control" we already had... and then complain when they perceive this control works against them.
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Tuesday 24th September 2019 20:18 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
to cheer up those who feel victimised because it's claimed the Brits are totally unaware of their / our constitutional laws - cheer up, you're not alone, the state of ignorance is typical for at least two other European populations I know somewhat better than most here, which makes me think that ignorance is, well, pretty much a common state of affairs for the huge majority in each and every population.
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Tuesday 24th September 2019 20:33 GMT jake
Re: Regardless of which side of the fence you are on.
"ignorance is, well, pretty much a common state of affairs for the huge majority in each and every population."
Worse, it's willful, stubborn and very, very vocal ignorance. And the .gov of your choice likes it that way. Why do you think one of the first places that they make cuts is in education?
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Wednesday 25th September 2019 19:52 GMT Michael Wojcik
Re: Regardless of which side of the fence you are on.
compulsory civics classes in school, which our American chums enjoy
If only. I imagine there are school districts in the US where civics classes are compulsory, but I believe that's relatively rare.
If this report is accurate, only a quarter of 8th-grade students in the US meet the basic proficiency requirement in civics. That's approximately the same as the fraction of Americans overall who can name all three branches of government,1 so the general population isn't doing better than the students (nor vice versa).
As that report notes, increased focus on the basics and "teaching for the test" in schools, thanks to heavy-handed interference like NCLB, is forcing out civics and other "breadth" curricula.
1Animal, vegetable, and criminal.
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Tuesday 24th September 2019 14:51 GMT W T Riker
Re: Regardless of which side of the fence you are on.
Unfortunately, we Brits do not have a codified constitution, but an unwritten one formed by acts of Parliament, the Courts and conventions.
I am of the opinion that the Supreme Court will now lobby for a written Constitution on the back of this judgement.
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Tuesday 24th September 2019 15:02 GMT Adrian 4
Re: Regardless of which side of the fence you are on.
I don't think courts lobby for anything. They judge what others lobby for, though there may well be some doing that.
Personally I think a written constitution is probably a bad thing. What would be written is likely to be less liberal than the existing ambiguity, along the lines of 'it is better to beg for forgiveness than ask for permission'.
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Tuesday 24th September 2019 17:59 GMT Ken Hagan
Re: Regardless of which side of the fence you are on.
Nit-pick: Acts of Parliament and Court judgements are both "written" things.
They may not all be gathered in one place, but that applies to any country that has ever amended its constitution or had its top court pass judgement on any article of it.
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Tuesday 24th September 2019 19:49 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
Free speech, freedom to assemble, free press, freedom from self-incrimination, and freedom to own weapons for self defense. Yep, those plucky rebels really didn't get much when they left old England.
Someone's still bitter about not being invited to the Boston Tea Party...
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Tuesday 24th September 2019 22:34 GMT John Robson
Re: Regardless of which side of the fence you are on.
“lobby for a written Constitution on the back of this judgement.”
Why?
Our checks and balances have done what they were meant to do.
Parliament will again be able to hold the government to account.
A flexible enough constitution to adapt to situations we wouldn’t have envisaged thirty years ago (like electing a bunch of blithering idiots to office and having them controlled by a very small group of disaster capitalists) is a good thing.
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Tuesday 24th September 2019 14:53 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
Are they Brits unaware of the constitional law of their country?
In my experience, a good number of brits appear to be ignorant of a number of important distinctions; that between government and parliament, between representative democracy and mob rule, between the role of the police and that of the courts, between the concept of justice, and that of vengeance, and many many more.
I put it down to a lack of education in such matters, and mis-education from a diet of tabloid newspapers and biased TV news reporting. I'm not sure the remedy is an easy path, as I see it it requires root-and-branch education of the masses in difficult subjects such as critical thinking and social responsibility which are hard things to instil in people who have gone their whole lives with them absent.
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Tuesday 24th September 2019 15:41 GMT Yet Another Anonymous coward
Re: Regardless of which side of the fence you are on.
>Are they Brits unaware of the constitional law of their country?
The constitutional law of the country is what parliament / the PM / the palace / the editor of the Daily Mail think they can get away with.
One king can get fired for marrying a divorcee, another royal divorcee can get canonised by the press.
One PM can send in troops to break strikes, win a war then get fired because of it.
Another PM can lie to start a war and be proclaimed as the greatest leader ever.
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Tuesday 24th September 2019 16:00 GMT Dave314159ggggdffsdds
Re: Regardless of which side of the fence you are on.
Er, the king you're thinking of wasn't forced to abdicate because of Wallis Simpson being divorced. That was just the excuse, because it was less embarrassing than admitting he was a full blown Nazi who wanted Britain to join the Axis powers.
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Tuesday 24th September 2019 17:57 GMT Yet Another Anonymous coward
Re: Regardless of which side of the fence you are on.
> the king you're thinking of wasn't forced to abdicate because of Wallis Simpson being divorced. That was just the excuse
That's rather the point. the constitution is entirely public opinion = a function of the prime minister and the editor of the Daily Mail
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Tuesday 24th September 2019 18:15 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
"Actually the law is what the judges say it is. Constitutional law is what the Supreme Court says it is."
Before today, I would have disagreed. Constitutional law was a combination of written laws and precedent, with great care taken to avoid precedent unless it was absolutely necessary.
From today, I agree, it is very likely that constitutional law is what the Supreme Court says it is and precedent maybe ignored if desired with little thought for the consequences.
I'm not sure that the UK has a constitution that is fit for that purpose, as there are a number of areas that could be interpreted in many different ways depending on the arguments presented.
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Wednesday 25th September 2019 09:05 GMT flayman
Re: Regardless of which side of the fence you are on.
It has always been the job of the courts to interpret and apply the law, taking into account Parliament's intentions. The ruling is unusual and I was very surprised by it, but I've read the whole thing and it makes perfect sense. Prerogative power is residual and cannot be used to usurp the power of Parliament to hold the government to account. This, by the way, has nothing to do with leaving the EU. If Parliament agrees to leave without a deal, that's that. Whatever happens, Parliament must approve it.
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Thursday 26th September 2019 09:59 GMT Teiwaz
Re: Regardless of which side of the fence you are on.
Parliament writes laws as accurately as it can,
Which Parliament does that? It's not the one in Westminster.
Recent Bills have been full of vagueness with the expectation they (or more accurately someone will) work out how to do it (if it's even possible) at a later date. Provided of course, that bits of it aren't subsequently struck down by some higher court at some later date.
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Tuesday 24th September 2019 14:56 GMT Kevin Johnston
Re: Regardless of which side of the fence you are on.
I know I have been slapped down already (no excuse for lack of knowledge) but don't they normally recess for the conference season which I though was 2-3 weeks? Really need to catch up on this stuff but with so few of them being the kind of person I would want to be seen stood next to in the pub, I don't want to seem too keen
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Tuesday 24th September 2019 15:08 GMT TomPhan
Re: Regardless of which side of the fence you are on.
They normally break for the conferences, and with the way being PM changed ownership some sort of recess would have been expected, but the length and the timing was what upset everyone.
If Boris had said it was for a couple of weeks there probably wouldn't have been the cases.
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Tuesday 24th September 2019 17:59 GMT Ken Hagan
Re: Regardless of which side of the fence you are on.
They do normally "recess" for conferences, but that does not guillotine business in the way that proroguing does.
Amusingly, since they *haven't* recessed for the conferences this year, today's decision means that Conservative MPs will have to choose between voting in Parliament and going to their conference.
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Tuesday 24th September 2019 18:19 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
"Today's decision means that Conservative MPs will have to choose between voting in Parliament and going to their conference."
It will be interesting to see how petty MP's and the Speaker might be - not having a recess for the Tory conference will have repercussions at some point but closing for recess lends more weight to closing parliament in the first place.
The question will be what Parliament does after delaying Brexit beyond the 31st of October - they are likely to struggle to complete any further business given the current state of the parties and if they are perceived to be playing silly games to avoid an election, it is likely to hurt them come an election.
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Tuesday 24th September 2019 15:41 GMT Paul Shirley
Re: Regardless of which side of the fence you are on.
In another forum we had a discussion about the many times politicians have interfered with the education syllabus and how much it looks like deliberate attempts to ensure UK citizens know almost nothing about the constitution, their own history or their place in the world.
It's infinitely easier to trick people out of rights they never knew they had. Or in the case of Britain, never really had, in it's 'Democracy in Name Only'.
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Wednesday 25th September 2019 15:19 GMT flayman
Re: Regardless of which side of the fence you are on.
"I get the impression quite a few folk are unaware of the distinction between the legislative (Parliament), the executive (government) and the judiciary (courts). Are they Brits unaware of the constitional law of their country? Or foreign folk who haven't been briefed properly? Am I just a grumpy sod?"
I have found that most Brits I talk to are shamelessly ignorant of how the separation of powers works in practice. Even a former opposition leader wrote an article in a newspaper in which he interpreted the government defeat in the first Miller case as the courts saying what Parliament can and can't do. It's the EXACT OPPOSITE. He certainly ought to know the difference, but testimonies like that only serve to make matters worse. A great number of people would be a lot less angry and pitch-forky if they would only try to understand these fairly simple distinctions. Reading this judgement would be a great place to start.
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Tuesday 24th September 2019 13:26 GMT Doctor Syntax
Re: Regardless of which side of the fence you are on.
The case before the court was that it was the PM overruling Parliament. So your "unelected judges" have prevented that "unelected PM" from doing that. In your, and presumably his, terms that's an outstandingly bad case to make to the people.
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Tuesday 24th September 2019 15:35 GMT Yet Another Anonymous coward
Re: Regardless of which side of the fence you are on.
> In your, and presumably his, terms that's an outstandingly bad case to make to the people
But when "making cases to the people" that doesn't really matter.
Unellected establishment judges overuling the democratic will of the people / there are weapons of mass destruction / china will pay the tarrifs = all make good politcal slogans
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Wednesday 25th September 2019 08:45 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"A Tony Blair, USA imported idea that the US is also suffering from."
You're suggesting a lawyer, married to a QC is in favour of abolishing the supreme court? Time to change the tinfoil hat. The US system of the president picking and choosing supreme court judges to suit his agenda is thankfully not what we have here, yet.
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Tuesday 24th September 2019 17:48 GMT H in The Hague
Re: Except it’s not is it...
"When the lefty kids in the forum get older ..."
Some of us are hardly young, that includes me. And hardly lefty - in my case believing in the market economy (though not without restraints), running a small business, providing services to other capitalist businesses, and investing in yet other businesses. Just because somebody doesn't agree with you doesn't mean they're left-wing.
I just happen to believe in the sovereignty of Parliament and being an old-fashioned kind of git, I believe that the right to vote is accompanied by the duty to inform oneself of this issues and repercussions before casting one's vote, and the basic constitutional law associated with the body you are voting for. Now get of my lawn. (Can we have an icon for that?)
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Wednesday 25th September 2019 08:47 GMT Mooseman
Re: Except it’s not is it...
"When the lefty kids in the forum get older and have to deal with their errors I'll be laughing from across the pond. Get you Country back while you can or Guy will keep on robbing you."
Yes, there it is, the stupidest comment so far. I don't know where "you country" is, nor who "Guy" is, but you're talking bollocks. Get back in your box.
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Wednesday 25th September 2019 00:47 GMT veti
Re: Except it’s not is it...
Because no-one bothered to take him to court over it. Duh. Assuming there was any such court in those days, before the "Supreme Court" existed.
If no-one feels strongly enough even to try to stop them, then the person who acts, wins by default. And you can't (re-)litigate it now, because the cause for action no longer exists.
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Tuesday 24th September 2019 21:58 GMT Anonymous Coward
Re: Except it’s not is it...
"...it’s judges ruling that parliament ultimately has authority over the executive, which very much *is* how things ‘work’ in the UK."
You're correct - the majority in parliament has authority. When parliament was proroguated, the Tories/DUP had a slender majority so it was technically the will of parliament and no vote was required.
The current state in parliament is that there is no overall control - aside from delaying Brexit, does anyone expect any real business will be voted upon besides calling an election eventually? At which point, the bickering in September, the next deadline and potentially any further laws passed in September/October becomes the business of the new government (majority, coalition or otherwise).
The supreme court has attempted to plaster over a broken parliament with a constitutional change. The precedence that has been set for the future could be interesting given enough money and an argument now allows you to change Government decisions via the courts. Slightly flippant I know, but I predict further constitutional changes in the next 5 years as a result of this precedent.
If the Supreme Court had chosen to say this was a political matter that didn't require their input, it is very likely the same events would play out (opposition seize control of the house under friendly speaker, ensure delaying Brexit beyond Oct 31st, become deadlocked over Brexit again and realise that the only way forward is an election and roll the dice).
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Wednesday 25th September 2019 04:39 GMT AdamWill
Re: Except it’s not is it...
"When parliament was proroguated, the Tories/DUP had a slender majority so it was technically the will of parliament and no vote was required."
Errr....no, that's not how that works. You can't just assume what the will of parliament is based on the party allegiance of those in it. Has it escaped your notice that quite significant numbers of those Tory MPs have been voting against the government on a fairly regular basis lately?
In any case - the court addressed this perfectly clearly. Prorogation is done to Parliament, not by Parliament. It doesn't prorogue itself; the monarch prorogues it, based on the advice of the prime minister. Parliament *can't* vote to prorogue itself, that's just not a thing that happens.
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Wednesday 25th September 2019 09:00 GMT H in The Hague
Re: Except it’s not is it...
"The precedence that has been set ... allows you to change Government decisions via the courts. "
Challenging the government (e.g. applying for a judicial review or lodging an appeal) has long been possible, this is nothing new. Applies to both the UK and other countries. (Where are you based?)
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Tuesday 24th September 2019 12:40 GMT BebopWeBop
Re: Regardless of which side of the fence you are on.
No, it maintains the sovereignty of parliament and is upholding that. It would have been difficult if it had gone the other way - the executive would have been free to suspend parliament (the UK has a parliamentary democracy) in order to get arbitrary changes through while preventing MPs having any say on the matter. It was made clear in the ruling that Parliament was not being usurped - but the executive being forced to listen to them according to the precedent in the UK.
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Tuesday 24th September 2019 12:41 GMT Joe W
Re: Regardless of which side of the fence you are on.
No, it doesn't. It just says that they must abide to the law - whatever that is. The parliament and the government can of course make up and decide upon new laws (which might in some countries be challenged as being against the constitution), or change the constitution itself (in other countries that do have a written one).
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Tuesday 24th September 2019 14:11 GMT Cederic
Re: Regardless of which side of the fence you are on.
This is the bit that I don't get. This judgement imposes substantial constitutional change, abrogating an Executive prerogative and imposes new conditions dictated by the court.
Given the court has no constitutional grounds on which to do that this judgement is itself unconstitutional.
The UK no longer has an independent judiciary which means, ironically, we are now in breach of EU law.
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Tuesday 24th September 2019 14:28 GMT sabroni
Re: This judgement ... imposes new conditions dictated by the court.
No it doesn't. It makes the proroguing illegal and means parliament hasn't been shut down. That's not the court telling Parliament anything other than "Do your job".
You don't want that to happen? You think if Jezza is the next pm he should be able to shut down parliament while he privatises whatever he likes?
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Tuesday 24th September 2019 16:21 GMT Cederic
Re: This judgement ... imposes new conditions dictated by the court.
Replying to you rather than others: The court judgement has just ruled that the monarch can not prorogue parliament except on advice from the Executive, and that this advice must have a "reasonable", erm, reason.
That is a change to the constitution. The court has no basis for doing this. We are in seriously uncharted territory here, in which the top court in the land has done something it has no authority to do.
See paragraphs 68 and 69 of the judgement; they basically say that the Royal Commissioners carry out the Queen's bidding, but that her bidding was unlawful. The court has just constrained the Queen in a way that she wasn't previous restrained.
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Tuesday 24th September 2019 16:30 GMT Dave314159ggggdffsdds
Re: This judgement ... imposes new conditions dictated by the court.
I tend to agree, except I'm not sure the monarch has actually had the power to prorogue Parliament for any reason or none in centuries. It's not explicit in law, though, so I do find it a worrying case.
It's akin to ruling that Royal Assent is no longer required - it could be that it's already really the case in practice, and the courts would simply be ruling on the existing, unwritten law. But it would be a much better look to enact primary legislation in Parliament, for something like that.
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Tuesday 24th September 2019 20:28 GMT Anonymous Coward
Re: It makes the proroguing illegal
not exactly every proroguing, just one that appears out of ordinary in extraordinary circumstances (brexit times now) AND when the gov side comes up with argument in court alongside the "fuckyou, we don't need to prove our reasons were genuine" reasoning.
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Tuesday 24th September 2019 14:33 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"This judgement imposes substantial constitutional change ..."
No it does not. See the summary of the judgment:
"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”."
All the Supreme Court has done is to remind us that Parliament is sovereign. Which most of use learned in school. But some members of HM government and quite a few commenters on web forums far and wide (and often less polite and considered than this one) seem to have forgotten that.
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Tuesday 24th September 2019 15:18 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
"Given the court has no constitutional grounds on which to do that this judgement is itself unconstitutional."
The court provided an argument (effectively that proroguing Parliament prevented Parliament acting as it wished) on the basis that it prevented Parliament from acting when it clearly wished to and was therefore.
It does amend the constitution - it provides more clarity around when prorogation can be used in future. From the BBC "The Supreme Court has drawn a clear line in the sand that a prime minister's executive powers in this most important area of how and when Parliament opens and closes are now curtailed - for ever."
The challenge is that while this judgement appears correct (IANAL), it applies to a situation where Parliament has chosen to get itself stuck with a minority Government and not act to address this in a timely manor. Normally, the inability for Parliament to act in this situation would result in an election has been the historical solution. Parliament has chosen not to follow this path - historically, ignoring this precedent has not worked well for Parliament.
The concern is that future decisions by Government may be challenged in a similar way, using this precedent (the courts stepping in from a private case to rule on the legitimacy of Government policy) to allow future Government decisions to be challenged, which may not always be in the UK's best interests even if the arguments are legally correct.
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Tuesday 24th September 2019 15:38 GMT Nick Kew
Re: Regardless of which side of the fence you are on.
The concern is that future decisions by Government may be challenged in a similar way,
How is that a concern?
If a future governing person - be they minister, civil servant, judge, or even monarch - seeks to dispense with the elected parliament in pursuit of a controversial Agenda, is it not a Good Thing that the precedent says[1] they can't?
[1] insofar as it can be a precedent for anything.
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Tuesday 24th September 2019 15:46 GMT Yet Another Anonymous coward
Re: Regardless of which side of the fence you are on.
>How is that a concern?
Because a future supreme court may extend their powers over parliament.
Governments have used lots of procedural tricks to avoid embarrassing debates - are all these going to involve a call to the judges?
Are judges going to rule on whether a speech in parliament is "economical with the truth"
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Tuesday 24th September 2019 16:14 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
If a government sets a law, the courts proceed to uphold it. If that law is errnouse, the fault is not with the courts.
There should be nothing preventing this standing from being changed, other than those who are lawfully allowed to prevent it from being changed.
We have a chicken and egg problem, and not really the responsibility of either (though fault and blame will be assigned as people wish).
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Tuesday 24th September 2019 16:37 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"If a government sets a law, ..."
I don't know where you are based, but in the UK it is the legislature, i.e. Parliament, which adopts legislation (normally that legislation is proposed by the government, i.e. the executive). They are quite distinct bodies. (Though in the UK there is some overlap as government ministers are also members of Parliament, hence they wear two hats. This is different in some other countries.)
See: https://www.parliament.uk/about/how/role/parliament-government/
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Tuesday 24th September 2019 16:49 GMT Dave314159ggggdffsdds
Re: Regardless of which side of the fence you are on.
There are multiple meanings of government, one of which is pretty much synonymous with state.
The government of the country in the normal colloquial usage includes the civil service, the monarch, the HoL, and the whole of the commons, including the government in the sense you mean (which is of the group of MPs which has formed a government), as well as the police, courts, etc etc.
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Tuesday 24th September 2019 16:35 GMT Doctor Syntax
Re: Regardless of which side of the fence you are on.
"Because a future supreme court may extend their powers over parliament."
Have you read this far and learned nothing?
The whole point of the court's decision is to re-affirm the power of Parliament.
A cornerstone of the British constitution is the sovereignty of Parliament. The PM has attempted to override that. All the court has done is to give effect to what has been the status quo in the face of that attempt.
Had the court ruled otherwise they'd have enabled a future government to extend its powers over Parliament.
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Tuesday 24th September 2019 23:20 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
My reading of English history is that we have relied on precedent for politicians to provide flexibility to act as situations change and courts have bowed to precedent rather than creating rulings that alter the dynamics between the monarch and Parliament.
This ruling ignores parliamentary precedent, establishes a new constitutional precedent and depends on how we view a relatively short time period in parliaments history for if it was ever necessary. It also signals that the supreme court is likely to act again on constitutional matters.
We got to this position (Parliament in 2019) due to MP's reaching a deadlock, the fixed-term parliament act tying the governments hands and instead of the speaker encouraging parties to resolve the issue at the ballot box, he ignored precedent and allowed the opposition to take control of the house, allowing laws to be passed that extend the crisis further.
The supreme court was a potential safety valve that could have released pressure with no verdict simply by following precedent and pointing to the ballot box as the solution - instead it has acted, likely allowing further precedents as politicians find further cause to avoid an election that may see their work undone.
Following the resumption of parliament, the issues causing Parliament to remain stalled over how to handle Brexit remain. The EU are unlikely to offer an alternative deal, it's unlikely that May's deal will be given a 4th vote, leaving a further extension and then what?
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Wednesday 25th September 2019 09:09 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
I disagree that an election would be siding with the PM - it is siding with the electorate and only acting if this fails.
If Parliament reaches a point where the government no longer has a majority, Parliament has a responsibility to address that (votes of no confidence and attempting to form an alternative government). If this is not possible, then call an election and only go to more extreme measures if the stalemate remains.
Parliament and the speaker have ignored this responsibility, ignored precedent and then the government has attempted to misuse its powers. The supreme court decision can be right (legally and morally) but still be the wrong decision for the situation - too many people in this argument are looking at the result (delaying Brexit and validating the methods used) rather than the larger picture of how to get a working government in-place.
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Wednesday 25th September 2019 08:56 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"We got to this position (Parliament in 2019) due to MP's reaching a deadlock, the fixed-term parliament act tying the governments hands and instead of the speaker encouraging parties to resolve the issue at the ballot box, he ignored precedent and allowed the opposition to take control of the house, allowing laws to be passed that extend the crisis further."
Uh, no. The fixed term act had nothing to do with this - Johnson, despite squealing how awful it was when Brown was appointed without an election, has barged ahead without the slightest intention of having an election. The speaker has nothing to do with calling for an election. His job is to keep order in parliament and to make sure that MPs and ministers alike adhere to parliamentary law and practice. the only reason the opposition has any control of the house is because Johnson in his extreme hubris effectively sacked 21 of his own MPs for daring to disagree with him. Other tories have abandoned his regime already. What has happened is that an attempt to bypass parliament and therefore the basis of our democracy has been stopped.
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Wednesday 25th September 2019 10:02 GMT flayman
Re: Regardless of which side of the fence you are on.
"...normally a minority government would ask for an election, but the fixed term parliaments act requires a two thirds of the commons or 434 MP's to vote for an election. As this requires support from both the Tories and Labour to achieve (the other parties number less than the difference to achieve the required majority they can be ignored in this case). i.e. it is out of Boris's hands unless Labour want an election."
Labour actually does want an election but not until we've secured an extension, otherwise there might not be time for an orderly exit. The problem is that not all of the Tories (and former Tories) want one. Oliver Letwin in particular doesn't want one. He would like to have an extension followed by another public vote.
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Wednesday 25th September 2019 11:50 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
The fixed term parliament act effectively stops the government calling an election - they need 434 votes which means support from both major parties. before the PM can successfully call an election versus the historical requirement to get a majority in Parliament which the current government could very likely get.
The Brown/Johnson comparison is irrelevant - we vote for MP's and by proxy parties and leaders but we don't directly elect leaders or parties.
The speaker does have a great deal to do with the current situation - you say "his job is to keep order in parliament and to make sure that MPs and ministers alike adhere to parliamentary law and practice". Bercow has ignored parliamentary precedent and practices to hand control of parliament to the opposition and then created further precedents in how he has allowed legislation to be presented and passed. Playing chicken with May for the first extension bent the rules and gave Parliament six months to do something to try and resolve the impasse - the Speaker was happy to let things continue to limp along rather than try and force MPs into taking action. We then see both sides bend or break the rules to achieve their goals in September and still no real resolution to the issues in Parliament as there is now clearly no overall control while before there was a fudge for everything except Brexit issues.
To use a bad sporting analogy, the two teams are arguing and not playing the game, the ref has been playing for one of the teams rather than being neutral, the other team got annoyed and tried to take their ball home but it has been stopped because it would ruin the game and meanwhile the crowd is getting tired and leaving. Given the chance, the spectators may choose a very different game next time.
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Tuesday 24th September 2019 16:11 GMT Dave314159ggggdffsdds
Re: Regardless of which side of the fence you are on.
I think the idea the judiciary can set that precedent is disturbing. It ought to require primary legislation.
It's always tempting to break liberal principles 'just this once', when we agree with the outcome.
In this case the courts have interpreted things that aren't explicitly expressed in law. The line between that and creating new laws is easy to cross.
I'm not yet clear on the detailed implications of this ruling, but it seems to have unintended consequences for the nature of our state. It's a bit like removing Royal Assent from the legislative process - in practice, it's merely a formality, but the law doesn't reflect that. If a judicial ruling had that effect, we ought to question whether the judiciary should be making new laws like that.
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Tuesday 24th September 2019 17:32 GMT johnnybee
Re: Regardless of which side of the fence you are on.
I kind of see what you mean, but the very purpose of courts is to interpret the law.
In particular, the purpose of a constitutional court - as the SC is permitted to act - is to interpret the constitution. Having an unwritten constitution offers them considerable latitude limited only by prior precedent and custom.
If parliament wishes to strike down the precedent they merely have to pass legislation that invalidates it.
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Tuesday 24th September 2019 16:28 GMT Doctor Syntax
Re: Regardless of which side of the fence you are on.
"Normally, the inability for Parliament to act in this situation would result in an election has been the historical solution."
Elections have been known to give rise directly to the current situation*, namely a Parliament without an overall majority. In those circumstances an immediate further election is the last resort; normally there's an attempt to form a coalition or possibly a temporary government of national unity.
In the present circumstance May and BoJo have attempted to run down the clock to one of other Brexit that MPs as a whole either don't support for personal reasons or think is against the long term interests of the nation. That has produced a crisis situation in which case an election is untenable. The timing of it would present the incoming government with a dog's breakfast for the management of which he or she would be responsible.
* In fact the last election did just that. May only got a majority with the aid of DUP. The change since than is that what with MPs deciding to follow their consciences and what they considered to be the best interests of their country to change parties and BoJo chucking more out of "his" party, even that majority has gone.
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Tuesday 24th September 2019 12:42 GMT david 12
Re: Regardless of which side of the fence you are on.
It is however entirely in line with recent developments in English legal theory. The courts have been granting themselves greater and greater political power.
Although this is sort of natural, and exactly the kind of thing you expect from people, not just from lawyers, there is an argument that they are hanging themselves: that exercising political power makes them subject to political protest, and that in the long term the Supreme Court is going the same direction as the Star Chamber
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Tuesday 24th September 2019 12:50 GMT yoganmahew
Re: Regardless of which side of the fence you are on.
@The courts have been granting themselves greater and greater political power.
Not really.
The house of Lords used to be the highest court and could have over-ruled the government in the past; it's powers were severely curtailed at times in the 20th century, though, so it no longer has the power required to over-rule the Executive. The UK Supreme court has effectively been constituted to fill the void left by the removal of the power of the Lords. It is still feeling its way to where the limits of its power are. And, as it's new, every judgement it makes is unprecedented...
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Tuesday 24th September 2019 16:44 GMT Doctor Syntax
Re: Regardless of which side of the fence you are on.
Upvoted for the "Not really"
But the Supreme Court is just the original Law Lords under a new name and with new premises. It's just a consequence of Blair thinking we should have something called a "Supreme Court". The whole HoL didn't hear cases, just the Law Lords and the members of the Supreme Court are just the latest holders of those posts.
It's rulings may be "unprecedented" unless they find an existing precedent to follow but that's the norm for courts dealing with appeals.
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Tuesday 24th September 2019 13:34 GMT Doctor Syntax
Re: Regardless of which side of the fence you are on.
"The courts have been granting themselves greater and greater political power."
Could you explain this in greater detail whilst allowing for the reality of this judgement: that it (a) excluded any consideration of the purpose of the advice to prorogue, of of the rights and wrongs of Brexit or of the party in government and (b) simply confirmed the sovereignty of Parliament which has been the cornerstone of the British constitution for several centuries.
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Tuesday 24th September 2019 14:15 GMT Cederic
Re: Regardless of which side of the fence you are on.
Regarding your condition (a) the judgement explicitly didn't exclude consideration of the purpose of the advice to prorogue; Lady Hale explicitly stated that the stated purpose was to hold a Queen's Speech but that she had no evidence of the purpose for that prorogation being five weeks and in the absence of such evidence there was no lawful reason for the five week prorogation.
That in turn addresses (b), in that instead of confirming the sovereignty of Parliament she has no instead imposed a new obligation on the Executive to provide a "reasonable" reason to prorogue Parliament.
That sounds like the courts changing the constitution and making up new laws to me, and that's exercising political power.
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Tuesday 24th September 2019 14:32 GMT sabroni
Re: Regardless of which side of the fence you are on.
How can you type "five weeks" repeatedly in the first paragraph yet have fogotten completely about the length of the proroguation by paragraph 2?
You twist and turn like a twisty turny thing, but you can't spin this as "the judges have taken over", however much you try. The verdict is "Go to parliament and govern" not "Govern as we tell you".
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Tuesday 24th September 2019 15:04 GMT Cederic
Re: Regardless of which side of the fence you are on.
I didn't forget in paragraph 2. I pointed out that Lady Hale is demanding a reasonable purpose for the length of prorogation, in addition to the traditional and legal reason for the prorogation.
Tell me where that's ever been required before. Ever.
Then tell me which fucking law was broken, for the Prime Minister to have acted unlawfully?
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Tuesday 24th September 2019 15:43 GMT Nick Kew
Re: Regardless of which side of the fence you are on.
It hasn't been required before, because there hasn't been such abuse before.
Arguably not even in the time of King John, when the Magna Carta first(?) formally limited the powers of a governing executive.
As for fucking law, strangely apposite.
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Wednesday 25th September 2019 07:56 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
>Are readers familiar with English laws relating to malfeasance/misfeasance in public office?
Johnson taking the UK out with No Deal against the wishes of Parliament (Benn bill) makes him guilty of misconduct in public office. Criminal offence with maximum sentence of life.
Misfeasance is a tort, making him (and his fellow conspirators/ministers) financially liable for any losses occurred as a result of the misconduct.
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Friday 27th September 2019 11:10 GMT CrazyOldCatMan
Re: Regardless of which side of the fence you are on.
Regarding "Johnson prorogued Parliament in order to avoid scrutiny" there's not only no evidence for this
.. larely because Boris and his ministers did not submit any evidence to the Supreme Court - thus (in effect) enabling the court to find a default judgement against him.
The question is - why didn't he present any evidence? Is it (possibly) because he would have to lie under oath in order to say that it wasn't all about taking away Parliaments power at a critical time and that would have directly lead to a charge of perjury?
Their silence on the matter is (very probably) one of the reasons why the SC found as they did.
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Tuesday 24th September 2019 18:30 GMT dajames
Re: Regardless of which side of the fence you are on.
Then tell me which fucking law was broken ...
It is not that any law was broken, it is that no law exists to give the Prime Minister the power to do what he tried to do. That's why you can't find the law in question -- it doesn't exist -- that's the point.
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Tuesday 24th September 2019 19:02 GMT Cederic
Re: Regardless of which side of the fence you are on.
The Prime Minister had the power to advise the Monarch to prorogue parliament. That was the lawful situation until around 10.45am this morning.
The Prime Minister no longer has that power. He now only has the power to advise the Monarch to prorogue parliament if the Supreme Court allows it.
That's the fucking insanity of today's ruling. There wasn't a law being broken, there is now apparently a law that Parliament didn't pass. So much for parliamentary sovereignty.
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Tuesday 24th September 2019 19:41 GMT Stoneshop
Re: Regardless of which side of the fence you are on.
The Prime Minister no longer has that power. He now only has the power to advise the Monarch to prorogue parliament if the Supreme Court allows it.
Nope.
The PM still has the power to prorogue Parliament (via his advice, such as it is, to the monarch), and he is reasonably free to do so as long as the length of the prorogation is in line with previous ones. If he chooses to set out a significantly longer one he'd better have a bloody good reason to do that, and there's now a SC ruling that people (MPs or ordinary citizens) can use to dissuade him from going down that road.
Courts don't start cases all by themselves; there has to be someone outside them to start the process, which is, for exactly that reason, bringing the case (to court).
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Tuesday 24th September 2019 20:34 GMT Cederic
Re: Regardless of which side of the fence you are on.
Re: "he is reasonably free to do so as long as the length of the prorogation is in line with previous ones" that's patently not true as the prorogation ruled unlawful was shorter than have been held in the past.
re: "If he chooses to set out a significantly longer one he'd better have a bloody good reason to do that" that's a new requirement that the Supreme Court today imposed.
As for "Courts don't start cases all by themselves", no, that's a right reserved exclusively for rich people.
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Wednesday 25th September 2019 08:51 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"As for "Courts don't start cases all by themselves", no, that's a right reserved exclusively for rich people."
Possibly in the UK, but in other countries access to justice can be cheaper. Anyway, the Good Law project now runs crowdfunding campaigns to support various cases (e.g. workers' rights), thus improving access to justice. https://goodlawproject.org/
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Wednesday 25th September 2019 08:41 GMT eldakka
Re: Regardless of which side of the fence you are on.
> Then tell me which fucking law was broken, for the Prime Minister to have acted unlawfully?
The actions weren't ruled illegal. They were ruled unlawful.
They are not the same thing, unlawful and illegal are not synonyms for each other.
The actions the PM took were not supported in law.
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Wednesday 25th September 2019 09:02 GMT flayman
Re: Regardless of which side of the fence you are on.
Exactly. It's a public law matter and the public authority exceeded its power. That's unlawfulness. Illegality is different and it means that a law is not formulated precisely enough for people to be able to predict its effects and behave accordingly.
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Wednesday 25th September 2019 09:00 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"Then tell me which fucking law was broken, for the Prime Minister to have acted unlawfully?"
He lied to the Queen about why he wanted to prorogue parliament - the judges decided it was for clear political motives, not what BJ claimed. They have therefore called his action unlawful, ie having no basis in law, rather than illegal, ie against the law. What it means is he can't be arrested for it, sadly, but his actions have been overturned and parliament can sit and scrutinise his actions.
If you can't make a point or attempt to argue a view without swearing it makes you look like a surly teenager, by the way.
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Tuesday 24th September 2019 15:00 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
The courts have been granting themselves greater and greater political power.
Did you lift that drectly from one of Hitler's speeches? Our system of government is very clear - Parliament makes the laws and the Courts adjudicate upon both the laws of the land and on constitutional precedent. The Weimar republic had a very similar system, and the Nazis didn't like this, as it prevented them from doing whatever they liked, so as soon as they got a whiff of power they began to undermine the role of the courts. We all know how that ended up, so be more careful about the sort of bollocks that you post in duscussion groups online, because it sounds very much like you are advocating more of the same.
(This comparison is exempt from Godwin's law because it is an accurate and relevant comparison to the Nazis)
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Tuesday 24th September 2019 17:26 GMT jake
Re: Regardless of which side of the fence you are on.
"(This comparison is exempt from Godwin's law because it is an accurate and relevant comparison to the Nazis)"
No need for an exemption. It is actually evidence that Godwin's law is accurate.
Godwin's law states "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1".
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Wednesday 25th September 2019 09:04 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"Godwin's law states "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1"."
There was an interesting series on the bbc recently about the nazi's rise to power. I suggest you watch it and see if you can draw conclusions about similarities.
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Wednesday 25th September 2019 09:11 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
Slthough not strictly in the original wording of Godwin's Law, the convention is that when the comparison to Nazis/Hitler is made, the discussion is over; exemptions apply for when this doesn't occur.
Godwin himself said, in Dec 2015, "If you're thoughtful about it and show some real awareness of history, go ahead and refer to Hitler when you talk about Trump, or any other politician."
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Wednesday 25th September 2019 09:19 GMT jake
Re: Regardless of which side of the fence you are on.
It's a convention based on ignorance of what Godwin's law says.
Mike himself wrote "its purpose has always been rhetorical and pedagogical: I wanted folks who glibly compared someone else to Hitler to think a bit harder about the Holocaust."
Nowhere did he suggest that the discussion should be over when such a comparison was made. Quite the opposite, in fact.
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Thursday 26th September 2019 11:40 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
It's a convention based on ignorance of what Godwin's law says.
This is true; it is a convention nonetheless, so I felt it appropriate to point out that the convention does not (conventionally*) apply in cases where the comparison is accurate.
*metaconventionally?
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Tuesday 24th September 2019 12:47 GMT Len
Re: Regardless of which side of the fence you are on.
This was not a case against Parliament, it was a case against the Government. The court has just clarified two things, that frankly in a developed democracy would not have needed clarification, namely that:
1) Government gets it mandate from Parliament (and nobody else) and therefore has to do what Parliament instructs it to do.
2) Nobody, and that includes the Government and the Monarch, is above the law.
It should be obvious, Parliament is elected by the people, the Government is not elected by the people, and elected positions should always trump unelected positions. Democracy in Britain just became a tad more advanced today.
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Wednesday 25th September 2019 08:36 GMT Wellyboot
Re: Regardless of which side of the fence you are on.
There are also laws that apply only to the monarch which restrict their ability to perform actions such as turning up in the commons without an invite. Everyone else can just walk into the visitors gallery (the queue can be long, booking tickets is very much advised).
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Tuesday 24th September 2019 14:47 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
it says the Supreme Court has authority over Parliament
No, the courts have no power over what hapens in Parliament. What they ruled on was the constitutionality of parliament being shuttered by the government, so what they have actually demonstrated is that Parliament is supreme over the governement - in other words, 650 or so MPs have collective authority over the nominal head of the house, which is exactly how it should be in a representative democracy, otherwise what you have is an autocracy (elected or otherwise).
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Tuesday 24th September 2019 14:50 GMT Dan 55
Re: Regardless of which side of the fence you are on.
If I remember the discussions correctly then this could actually cause major issues in the future specifically because it says the Supreme Court has authority over Parliament. This goes against the supposed seperation of powers which is presumed in how things 'work' in the UK.
The Supreme Court sentenced that Parliament holds the Executive to account, but as Parliament could not carry out its duties then it fell to the Judiciary to hold the Executive to account.
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Wednesday 25th September 2019 08:27 GMT Chronos
Re: Regardless of which side of the fence you are on.
it says the Supreme Court has authority over Parliament
Not quite. As I read the ruling, the justices are very careful to stress the opposite, that the PM's advice to Her Madge removed parliamentary sovereignty and that it is for the parliamentary authorities to sort out now they have been restored in their prerogatives. All the SC did was reset the clock to before the Scruffy Scarecrow went beyond the pale and triggered a load of pomp, circumstance and archaic nonsense on a hollow pretence.
The ruling, in effect, has said "parliament had been castrated for no good reason; we've sewn its nuts back on but it's up to parliament to make sure they stay on from this point forward as we have no authority save upholding convention and the law."
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Wednesday 25th September 2019 08:56 GMT flayman
Re: Regardless of which side of the fence you are on.
This comment appears to make the very common mistake of conflating Parliament with The Government, which is composed of its members is is not directly elected. Even Iain Duncan Smith has done this, and as a former opposition leader he really ought to know better. Parliament is sovereign, and this ruling is a vindication of that. The government must not frustrate the sovereignty of Parliament and its accountability to it. The prerogative power is a residual power of the monarch that enables the government of the day to get on with its usual business without having to ask for Parliamentary approval for every single thing. In this case the government attempted to impose itself on Parliament by shutting it down.
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Wednesday 25th September 2019 11:21 GMT Alan Johnson
Re: Regardless of which side of the fence you are on.
If I remember the discussions correctly then this could actually cause major issues in the future specifically because it says the Supreme Court has authority over Parliament. This goes against the supposed seperation of powers which is presumed in how things 'work' in the U
This is absolutely NOT what happened. The judgement is that the government cannot suspend parliment to prevent it taking actions the government dislikes or finds inconvenient. The outcome reinforces the power and authority of parliment rather than undermining it anyway whatsoever.
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Tuesday 24th September 2019 14:34 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
This is a massive bitchslap to the People, not Boris.
When you have people that can ignore reality and assign blame, then it's over.
"damaging effect on Parliament's ability to do its democratic duties at a crucial time in the UK's constitutional history" - I believe your Duty was to deliver Brexit. You should all be sacked period.
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Tuesday 24th September 2019 15:08 GMT Adrian 4
Re: Regardless of which side of the fence you are on.
You might believe that, but it doesn't make it correct. All the hysterical shrieking about 'delivering brexit' is from people who are well aware that it was a marginal and irrational result that would be ditched if sanity were allowed to prevail.
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Tuesday 24th September 2019 15:14 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
I believe your Duty was to deliver Brexit
Oh dear.
In short; your belief is wrong. It's a good thing our system of government is based on constitutional conventions, not the facile beliefs of an anonymous coward, eh?
Quite apart from the fact that the referendum was explicitly advisory (read the enabling bill available on Hansard if you don't believe me, which unabiguously lays down in law the rules for the referendum in question), the duties of a Member of Parliament are as follows, according to Winston Churchill:
The first duty of a member of Parliament is to do what he thinks in his faithful and disinterested judgement is right and necessary for the honour and safety of Great Britain. His second duty is to his constituents, of whom he is the representative but not the delegate. Burke's famous declaration on this subject is well known. It is only in the third place that his duty to party organization or programme takes rank. All these three loyalties should be observed, but there in no doubt of the order in which they stand under any healthy manifestation of democracy.
Nothing in there about brexit - and furthermore, even though the government of the day appeared to promise to be bound by the result of the referendum (as Porky Boy Cameron did), it is recognised constitutional convention that no government can bind the actions of any subsequent government, and the government has no authority whatsoever over other members of the House (even within their own party, although tehy can threaten to withdraw the Whip, effectively expelling them from the party, if they don't vote the way the government wants).
The fact remains, that the individual members of Parliament are elected primarily to represent the best interests (note, interests, not wishes) of the country first, their constituents second (and not just the ones who voted for them), and their party last. This is, of course, after their oath of faithfulness and allegiance to the Monarch. One would think that this oath would preclude lying to the Queen about your reasons for wanting to stymie the legitimate democratic processes of the nation.
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Tuesday 24th September 2019 16:29 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
Loyal Commenter,
"Quite apart from the fact that the referendum was explicitly advisory (read the enabling bill available on Hansard if you don't believe me, which unabiguously lays down in law the rules for the referendum in question)"
BTW, I am not the original AC. Genuine Question follows.
Question: I am aware of the rules regarding referenda, as stated, *BUT* Cameron did state that the 'result' would be 'followed', implying that the 'advisory' nature of the referendum was going to be explicitly ignored.
Is this wrong ?
Does the PM not have the right to promise this ?
No one has ever stated, over the last 3+ years, that his promise was invalid/illeagal according to the rules/conventions of parliament or the powers/rights of a serving PM.
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Tuesday 24th September 2019 16:44 GMT H in The Hague
Re: Regardless of which side of the fence you are on.
"Does the PM not have the right to promise this ?"
He/she has the right to promise anything (e.g. tame unicorns for everyone) they want, just as you and I have that right. But that does not mean it such a promise is binding on their government, and even less so on Parliament, let alone a future government or Parliament. That's the sort of thing I learned at school. It's probably also covered in books for the Citizenship Test and on www.parliament.uk and gov.uk.
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Wednesday 25th September 2019 09:14 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"Don't election manifestos usually make promises that are never kept?"
Often, yes. But an election is a different beast to a referendum by definition. Additionally if your government of choice fails to deliver on its election promises you can vote them out again in 4 years' time. Leaving the EU has no such safeguards.
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Wednesday 25th September 2019 09:18 GMT Loyal Commenter
Re: Regardless of which side of the fence you are on.
It's a good question, and can be answered by pointing out a couple of things - no government can bind the hands of a future government (i.e. nobody can pass a law that says a future government must act in a certain way, not least becase any future government can repeal such a law), and the government has no authority over the House - Bills are passed and become Acts in law by getting a majority vote in the house from all MPs, not just those in the government, or the government's party.
What Porky Boy was actually promising was that his government would enact whatever result the referendum came up with. As soon as it didn't go the way he expected, he resigned, effectively ending that government, and breaking that promise, which was nothing more than a personal promise from him, and in no way binding on anyone else.
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Wednesday 25th September 2019 15:02 GMT Stork
Re: Regardless of which side of the fence you are on.
No, but MPs are allowed to change their minds as facts appear (this has allegedly happened!) and in this case the promised "easiest trade deal ever/having your cake and eating it" was not available this could be a justification.
Election manifestos are what parties would quite like to do in government. Stuff always happen that was not foreseen and certainly not discussed at election time which is why MPs _have_ to be able to vote according to their conscience, even if that is often deposited with the whip.
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Tuesday 24th September 2019 16:41 GMT Anonymous Coward
Re: Regardless of which side of the fence you are on.
"One could think that this oath would preclude lying to the Queen about your reasons for wanting to stymie the legitimate democratic processes of the nation."
You could possibly think that. I couldn't possibly comment.
Anyone remember why Privy Council members are to be addressed as "Right Honourable"?
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Wednesday 25th September 2019 01:05 GMT veti
Re: Regardless of which side of the fence you are on.
No, parliament's duty was - is - to govern the country. The referendum was advisory only, it didn't change anything about "their duty".
As for being sacked, that's for their voters to say - MP by MP, constituency by constituency. Nobody else has that right.
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Wednesday 25th September 2019 07:44 GMT Dave K
Re: Regardless of which side of the fence you are on.
"I believe your Duty was to deliver Brexit."
You see, this is the problem. Boris said that prorogation was nothing to do with Brexit, it was to prepare for a Queen's speech. So if it wasn't anything to do with Brexit, why are Brexiteers up in arms suddenly?
Or, maybe it was actually about Brexit and about silencing Parliament for 5 weeks. This would explain Brexiteers suddenly being annoyed. However if so, then you accept that Boris misled the Queen, hence this judgement.
In short, every time someone connects this ruling to "disrupting Brexit", you are in fact justifying the supreme court's ruling - that Boris lied about the reasons for prorogation.
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Wednesday 25th September 2019 09:09 GMT flayman
Re: Regardless of which side of the fence you are on.
"Or, maybe it was actually about Brexit and about silencing Parliament for 5 weeks. This would explain Brexiteers suddenly being annoyed. However if so, then you accept that Boris misled the Queen, hence this judgement."
Indeed, Boris has said as much yesterday. This judgement will make it harder to secure a deal and he reminds us that there are forces in the country committed to thwarting Brexit.
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Wednesday 25th September 2019 09:18 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"Indeed, Boris has said as much yesterday. This judgement will make it harder to secure a deal and he reminds us that there are forces in the country committed to thwarting Brexit."
He also has not said he will abide by the court ruling nor that he would obey the law which requires him to go to the EU and ask for an extension to A50 again.
Harder to make a deal? In what way does shutting the elected parliament and HoL out of anything make it somehow easier to get a deal (even if one exists) ? This alone should be ringing some very loud alarm bells in even the tiniest minds.
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Wednesday 25th September 2019 09:24 GMT flayman
Re: Regardless of which side of the fence you are on.
"Harder to make a deal? In what way does shutting the elected parliament and HoL out of anything make it somehow easier to get a deal (even if one exists) ?"
Quite right. If there actually were a deal being struck (sought?) then the more time you have with Parliament sitting the better the chance of getting it through.
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Wednesday 25th September 2019 11:46 GMT Roland6
Re: Regardless of which side of the fence you are on.
This judgement will make it harder to secure a deal and he reminds us that there are forces in the country committed to thwarting Brexit.
Well there is the T.May deal on the table and given only 1-in-3 actually voted for Brexit, it would be normal to expect people would be thwarting Brexit? Just as there were forces in the country for several decades committed to thwarting the UK's participation in the EU...
I loved the interview with Charles Walker MP (Conservative & Chair of the 1922 Committee) on Radio 4 PM yesterday (circa 17:10~17:15) where he effectively said Mogg et al were "mascarding largely as leavers but are remainers", because they opposed their party's/government's Brexit deal.
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Wednesday 25th September 2019 09:11 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"This is a massive bitchslap to the People, not Boris.
When you have people that can ignore reality and assign blame, then it's over.
"damaging effect on Parliament's ability to do its democratic duties at a crucial time in the UK's constitutional history" - I believe your Duty was to deliver Brexit. You should all be sacked period.
"
Ignore reality? Like ignoring the reality of what an appalling mess brexit actually is even before we stumble out of the EU? No? didn't think so. Typical leave fanatic - anything is good as long as it supports your fantasy about the EU. The moment parliament and the courts disagree with your hysteria then they are somehow the "enemies of the people" or are "conspiring to subvert the will of the people". You fondly believe that the role of parliament is to merely parrot what the "people" - in this case about 30% of the people - demand. Three things for you to try - first, look up what a parliamentary democracy is, second, look up some real facts about the EU, third, translate all those Daily Mail headlines into German and see if they don't start sending a chill up your spine.
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Tuesday 24th September 2019 17:45 GMT johnnybee
Re: Regardless of which side of the fence you are on.
For what? To declare that a prorogation that ended 22 years ago is null and void? What purpose would it serve? How exactly would it change anything? Can I take my primary schoolmate to court for gaining 1st place in the sack race by foul methods? Cool - I'm on it!
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Wednesday 25th September 2019 08:42 GMT eldakka
Re: Regardless of which side of the fence you are on.
> Then why did John Major get away with it when he was PM?
You would have to ask the parliamentarians of the day why they chose not to bring the matter to the courts attention.
The courts can only rule on what is brought before them. If no one brings an action before the courts, there is nothing for them to rule on.
Why didn't you bring it to the courts attention 22 years ago?
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Wednesday 25th September 2019 09:23 GMT Mooseman
Re: Regardless of which side of the fence you are on.
"Then why did John Major get away with it when he was PM?
Put him before the courts. I demand justice be applied equally or not at all.
Then again maybe it should only be applied if people hate your hair? This seems to be the case.
"
because Major did not try to shut parliament down for effectively 5 weeks in order to bulldoze through something he knew that no sane parliament would allow - and nobody believes for a moment that BJ had any intention of doing anything other than forcing us out of the EU without a deal, something that was never voted for and is in fact explicitly against the law. The courts agreed that this was the case and declared the prorogation unlawful. Stop frothing about parliamentary events of 22 years ago and start thinking.
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Tuesday 24th September 2019 15:16 GMT Loyal Commenter
Re: #Sarcasm?
There are two questions here; who was trying to "take back control", and from whom?
If you think about who used to have control, and no longer does, and who control currently rests with, then the only logical conclusion here is that it is the rich backers of brexit trying to take back control from Parliament - is their true goal to reverse the Parliament Act perhaps?
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Tuesday 24th September 2019 16:20 GMT Anonymous Coward
Re: #Sarcasm?
The federalists that control what you eat, what you fish (if you even get to keep a fishing boat), what you can nationalise (nothing, no mater how many of your people demand you renationalise something its illegal in the EU so haha dont bother), that control who you talk to about trade, that control where you spend your money.. and so on
The federalists who show up just to vote, get paid for the day by simply voting and bugger off wherever.
The federalists who will let a country burn and collapse to save their own asses.
Seriously, where have you been since 1993? Leaving was being discussed way back on the radio in 2005 (I have recordings, its amazing just how the arguments are so much the same as today).
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Wednesday 25th September 2019 01:25 GMT veti
Re: #Sarcasm?
Please double check your Faragist talking points, because they're bullshit.
EU law doesn't prevent nationalisation - it limits how nationalised industries can behave, but it doesn't stop you creating them. Fishing is limited by international treaties for all countries, whether they're EU members or not - the freedom to cast any net you like, wherever you like, whenever you like, and from any boat you like, isn't coming back. (Some of us remember the Cod Wars.) And control of what you eat - yeah, I personally quite like having a government that prevents poison being sold as food, and it's not clear that having such regulations set at EU level is any worse than having them set individually by each member state. (It's certainly much more efficient, and more transparent.)
As for "where you spend your money", that complaint would be more aptly addressed to the US State Department, which will quite literally prevent you from spending your own money in countries like Cuba or Iran. The EU's restrictions are tiny in comparison.
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Friday 27th September 2019 11:23 GMT CrazyOldCatMan
Re: #Sarcasm?
the freedom to cast any net you like, wherever you like, whenever you like, and from any boat you like, isn't coming back
For very good reasons - one of which is that unresticted fishing was driving the fish stocks off a cliff and depleting them to the extent that some of the species were pretty close to being extinct.
I personally quite like having a government that prevents poison being sold as food
Indeed. And that sort of habit started with the Victorians - that's when Parliament started legislating about food standards and safety. So it's not just an EU thing - it's something that we too were doing, long before the EU existed.
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Wednesday 25th September 2019 09:33 GMT Mooseman
Re: #Sarcasm?
"The federalists that control what you eat, .....Seriously, where have you been since 1993?"
Cant be arsed to copy /paste all your drivel but I'll happily take it to pieces for you. they control what we eat? You mean they apply standards to the food we consume and demand clear labelling of additives in food we buy? (something the UK tried to vote against by the way)
Fishing? Our own government sold fishing rights to other countries, not the EU. Your hero Farage was on the EU fishing commission, maybe if he'd bothered to turn up occasionally he might have been able to tell you that. Nationalising industr is perfectly legal in the EU, as is bailing out a private company despite the wailings of your ilk - if it wasn't why have we so far spent about £850 billion bailing out the banks? We have a huge amount of tariff free trade through the EU, of which 55% is outside the EU. Paid to vote then bugger off? Sure, if you believe the nonsense spewed by the brexit party freeloaders. Mind you they don't even bother to vote, do they?
Greece was not allowed to crash and burn, it was already doing so when they lied about their economy to get entry to the EU. The European bank bailed them out, not the EU.
Curious that you mention 1933. A time when a populist right wing party took control in the name of the "will of the people" and shot democracy stone dead while blaming foreigners and minorities for their own problems. sounds familiar? Probably not to you, youre lost in the fantasy lands of brexit,
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Wednesday 25th September 2019 10:16 GMT Loyal Commenter
Re: #Sarcasm?
what you fish (if you even get to keep a fishing boat)
haha - maybe the fishing industry in this country should have thought about that before they sold off the quotas? Or are you advocating having no fishing quotas, and as a result, no fish?
FWIW, Iceland is not an EU member (although is in the EEA) for a couple of reasons relating to fishing - firstly, until recently their principle industry was fishing (now tourism), opposed to a tiny part of the UK economy, so they didn't want to apply fishing quotas, and secondly, they still have whaling for the tiny number of backwards areseholes who eat cetaceans, and all killing of cetaceans is forbidden in the EU.
So, the question here is - what part of EU fishery policy don't you like? The bit where we don't destroy all the fish stocks, or the part where we don't murder whales and dolphins?
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Tuesday 24th September 2019 10:45 GMT H in The Hague
Summary
The full text of the judgment, linked to in the Reg article, is a good example of clear writing to explain a very technical matter.
But those of us who have work to do today might prefer to read the summary: https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf.
A unanimous verdict confirming the primacy of Parliament over various unelected folk. A good day for British democracy and the rule of law.
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Tuesday 24th September 2019 14:20 GMT Cederic
Re: Summary
Regarding "A unanimous verdict confirming the primacy of Parliament over various unelected folk" you missed
- the part where the courts ignored precedent allowing prorogation of Parliament for political purposes
- Lady Hale stating that the prorogation prevented Parliament from conducting its business just seconds after describing how Parliament had been able to conduct its business
- the way Lady Hale said that although there was a lawful and reasonable reason provided for prorogation she was going to ignore it
- the fact that this parliamentary session is the longest since the Civil War and we're so far overdue a Queen's Speech it's embarrassing
- that Parliament is repeatedly failing to deliver on its manifesto commitments and that MPs are collectively doing their best to overturn democracy
Apart from that, sure, it confirmed the primacy of Parliament, just as long as Parliament does what the courts want.
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Tuesday 24th September 2019 15:23 GMT Loyal Commenter
Re: Summary
the fact that this parliamentary session is the longest since the Civil War and we're so far overdue a Queen's Speech it's embarrassing
If you'd be paying attention, you would know that the previous government explicilty decided that pariament would run for two years, not one, so that May could do a proper job of sorting out brexit. The fact that she failed to do so was irrelevant, the current Government still had unconcluded business in Parliament when Johnson illegally proprogued it, such as the Domestic Violence Bill, that was shamefully dropped.
There is absolutely nothing that would ahve stopped the tories from proproguing parliament for a new Queen's Speech a year ago, for four of five days, according to normal conventions, and to be honest, there was nothing to stop Boris from doing the same for a sensible amout of time, and he still could. A Queen's Speech doesn't take five weeks to prepare unless the governemnt is planning some pretty radical stuff, and if you think our government has any such plans, you are living in a fantasy land.
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Tuesday 24th September 2019 18:02 GMT johnnybee
Re: Summary
Lady Hale ignored the stated reason for the prorogation as it was not the question at hand.
Had it have been a five day prorogation, nobody would have blinked an eye, much less pursued the matter in every jurisdiction.
It wasn't a 5-day prorogation, though, it was a 5-week prorogation that encompassed the majority of remaining time (pardon the pun) before an irreversible constitutional change in which parliament had shown a particular appetite to have a say.
You *must* accept that prorogations cannot be arbitrarily long, surely? In which case, the Executive, when challenged, must surely be able to offer some reasonable explanation for the length of time specified. The Executive offered only the Queen's Speech as justification, which was clearly a nonsense.
What if a 5-month, or 5-year prorogation had been advised by the PM and Privy Council? Would a Queen's Speech have been sufficient justification then?
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Tuesday 24th September 2019 13:04 GMT katrinab
Re: Just when you think UK politics can't get any weirder or messier.
It is a contraption that existed many years ago when I was a young girl that had a load of numbered levers. You pushed the levers related to the price of the product, they would appear on pop-up metal plates, then you pushed another level, and a drawer would spring open, and the shopkeeper put some round metal disks called "cash" into the drawer which represented your payment for the product.
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Tuesday 24th September 2019 13:26 GMT Anonymous Coward
Re: Just when you think UK politics can't get any weirder or messier.
Pull the other leg' it's got bells on...
Like the pneumatic tubes that once conveyed this mythical "cash" around department stores. An unlikely story!
(I would comment on the actual story but a very irate commenter ordered me not to mention brexit on another thread earlier, so I won't.)
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Tuesday 24th September 2019 17:05 GMT katrinab
Re: Just when you think UK politics can't get any weirder or messier.
The big lever on the side that looked a bit like a leg did indeed have a bell on it, which would give a very satisfying ping when you pulled it.
And you are right, they did indeed have pneumatic tubes to send cash, as well as handwritten memos, around the building.
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Wednesday 25th September 2019 18:34 GMT Anonymous Coward
Re: Just when you think UK politics can't get any weirder or messier.
Pneumatic tubes still exist. I remember them, and also "real" cash registers - some of which, especially in Germany, were works of art. The one at Beamish is particularly impressive.
It's interesting that as the technology gets more impressive, the outward shell gets more boring. Mobile phones are rapidly approaching TMA-1 when not working, the future of car dashboards also seems to be glass slabs. And cash registers are being replaced by almost featureless little boxes as even the mobile terminal with buttons is being downsized.
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Tuesday 24th September 2019 18:54 GMT Stoneshop
And then the drawer snapped shut trying to take your fingers with it. ;-)
Not my fingers, but I had such a drawer open semi-spontaneously by the setting down of a litre bottle of cola, full, near it. This opening of the drawer then wiped the bottle off the table as in some kind of protest, and from there gravity had free play.
This was back when those bottles were glass.
And the floor was concrete.
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Tuesday 24th September 2019 18:46 GMT Stoneshop
Re: Just when you think UK politics can't get any weirder or messier.
and the shopkeeper put some round metal disks called "cash" into the drawer which represented your payment for the product.
Didn't the drawer also have compartments for those little bits of coloured paper that are said to be strongly tied to happiness?
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Tuesday 24th September 2019 20:55 GMT Anonymous Coward
Re: It is a contraption that existed many years ago
"all accompanied by a series of sounds best reproduced in a song [...]"
Which is a good cue for the German supermarket's tills' flash mob performance of Xmas tunes for their shoppers.
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Friday 27th September 2019 11:29 GMT CrazyOldCatMan
Re: Just when you think UK politics can't get any weirder or messier.
You pushed the levers related to the price of the product
And (according to a serial documentary that I watched) is possessed by an evil spirit that likes to try to remove your fingers by closing rapidly and unexpectedly.
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Tuesday 24th September 2019 10:46 GMT DavCrav
"The surprising ruling from the Supreme Court was the unanimous decision of all 11 judges."
I don't think it was that surprising. I watched some of the evidence, and Eadie was particularly useless. Of course, he was only playing the hand he was dealt, and it was full of jokers. The significant time they spent talking about what rememdy should happen if they were to find against the government suggested this as well.
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Tuesday 24th September 2019 12:24 GMT Charlie Clark
Yes, Eadie and Keen were terrible. But they were a legal B-team to match the current B-team in government. Rarely a good thing to tell judges what they can and cannot do, and quite a slapdown of the High Court's poor judgement.
This is now precedent, which means any further attempts by Bojo and the toy soldiers are likely to be served with injunctions.
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Tuesday 24th September 2019 15:51 GMT Anonymous Coward
Re: So basically....
The difference was that given the fleet he was supplied with and the incompetent orders from Petersburg, Zinovy Petrovich Rozhestvensky did a bloody good job in the circumstances, a fact recognised by the Japanese.
I can't somehow imagine Dominic Grieve going round to Cummings's bedside, presenting him with flowers and saying, in effect "Bad luck old chap, still it wasn't your fault." Unless it was a bunch of lily of the valley wrapped in poison ivy.
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Tuesday 24th September 2019 13:52 GMT Doctor Syntax
"Rarely a good thing to tell judges what they can and cannot do"
When a case goes to appeal the issue is usually a point of law and the role of counsel is to present arguments about what legal principles the lower courts should have applied. In this case one of the issues was about the rights of courts over a particular aspect of prerogative. It would be one where the court itself expected such arguments to be presented. It's a subtle difference between telling the court and presenting an argument. If you read the judgement it discusses areas of prerogative where the court can and can't intervene.
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Tuesday 24th September 2019 11:52 GMT TRT
Re: As the saying goes you get the government you deserve
Most of the MPs have jetted off to foreign climes for a late season holiday, free and gratis, courtesy of the PM who got very good bulk purchase savings on package deals from Thomas Cook a couple of weeks ago.*
*I made this all up, but it _is_ bordering on credible at the moment.
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Tuesday 24th September 2019 14:05 GMT Doctor Syntax
Re: Surprising?
"the newish (less than 20 yo?) UK Supreme court "
Newish? It's just the continuation of the HoL sitting as a court. They now have their own building instead of having to put up in some room in Westminster Palace. Its legitimacy as a forum descends directly from the medieval royal court.
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Tuesday 24th September 2019 16:34 GMT Anonymous Coward
Re: Surprising?
31 downvotes, the remainers are happy today. Another chance to force brexit to get cancelled.
Hopefully the EU will see sense and either give a deal that actually works (I dont see how) or simply refuse an extension.
If we end up staying in the EU I know they wont like it. A "member state" (state, lol how that will change in a few decades) full of anti EU sentiment. Just what they want.
Perhaps they will bundle leavers and their kids into vans and take them to a facility when the time is right? I wouldnt put it past them, cancelling brexit will have the word "leaver" turn into a slur thrown and anyone that a "righteous person" doesnt agree with. Maybe some tv channel will make a reality TV programme out of the "identify the leaver" campaign.
Maybe I read too much 1984?
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Tuesday 24th September 2019 17:08 GMT Doctor Syntax
Re: Surprising?
"Hopefully the EU will see sense and either give a deal that actually works (I dont see how)"
I don't see how a deal can actually work either. Not unless HMG actually intends to repudiate the Good Friday Agreement and that in turn would be a peculiar interpretation of "work".
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Tuesday 24th September 2019 19:37 GMT Ken Hagan
Re: Surprising?
"If we end up staying in the EU I know they wont like it. A "member state" (state, lol how that will change in a few decades) full of anti EU sentiment. Just what they want."
Not really. The only way we'll stay is if there is another referendum (or if the next general election is sufficiently obviously hi-jacked to that purpose) and remain gets a majority. We would then be a country that had considered the matter at great length and decided to stay and abide by the same rules as everyone else. There are other, current, EU members who cannot make that claim.
And if we don't stay, the Scots and Irish will leave "England" and rejoin the EU with a majority of the population behind the decision. I say "England" because that's what it will be and if the Welsh are unhappy about that then perhaps they should start considering their position. I'm sure there is perfectly reasonable "UK" or "Celtic Union" that could be formed.
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Wednesday 25th September 2019 10:34 GMT Mooseman
Re: Surprising?
"If we end up staying in the EU I know they wont like it. A "member state" (state, lol how that will change in a few decades) full of anti EU sentiment. Just what they want."
ooh,let me guess, you've read the Lisbon Treaty? The one your lot claim comes into force in a couple of years? You want the eu to give us everything we had before but not actually pay for it?
From a group of people who have done nothing but threaten violence, acted like thugs, hurled foul abuse and actually murdered people, I think your whining rhetoric is not merely contemptible but bordering on the deranged.
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Tuesday 24th September 2019 10:52 GMT Anonymous Coward
So Gina Miller has now shown that she knows the law better than the Government, the Attorney General all the political advisers and all their legal representatives, not once but twice. Not bad for an investment manager who was born in Guyana.
Maybe the Government should run policies & strategies through her before deciding on them?
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Tuesday 24th September 2019 11:03 GMT Dave314159ggggdffsdds
You don't understand how our laws work. No-one knows what some bits of legislation mean in practice until they're tested in court.
If we'd known what the law was beforehand in this case, for example, there wouldn't have been a case. The lower courts would have simply applied the law. If the same thing were to happen again, we now know what the law is, so lower courts can rule.
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Tuesday 24th September 2019 11:26 GMT Anonymous Coward
Yes I do understand how your laws work. Someone says it's not illegal, someone else says it is illegal. They take it to court and the judges agree with one side or the other. Therefore the fact that Gina Miller had observed that what was being done was illegal and the courts agreed means that she would have a better understanding of what is legal and what isn't (twice).
Just because the law isn't written down explicitly for every single scenario does not make it fair game to do anything you want. That is what the legal advice given to Government is about (generally legal advice is only sought when they feel they may be doing something illegal) so they already know they are on the boundary and it was shown that they were on the wrong side of that boundary, it shouldn't have taken Ms. Miller to point that out to them and get the court to agree.
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Tuesday 24th September 2019 11:37 GMT Adair
You don't really seem to understand how it works. In British civil law anything that is not explicitly ruled illegal is, on the face of it, allowed - that's your starting point.
Therefore the 'Govt.' is quite entitled to attempt anything it feels it can 'get away with', and will sometimes do this in the hope that no one will bother to take the time or expense to put their actions to the test. if they get away with it that establishes a precedent which then makes it more difficult (but not impossible) to demonstrate 'illegality'.
Gina Millar has had the guts, determination and help of appropriately placed 'friends' to immediately put Govt. claims to the test, and has so far made the Govt. look like cynical fools two times running. it certainly does the Govt. and it's advisors no credit whatsoever.
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Tuesday 24th September 2019 12:04 GMT TRT
There is a danger in this that once this precedent has been set, that it will be cited for some other prorogation in future, where the actual circumstances are far less constitutionally significant than the current Brexit
fuck upsituation. For example, in 10 years time Parliament is unexpectedly prorogued for 6 weeks, mid-session, during the trial of a retiring former PM who has allegedly embezzled millions through backhand deals, and to save the government/senior party the embarrassment of answering questions on the matter in the house, it is suspended without challenge. A public interest matter effectively silenced in the house for reasons of party politics which may have gone unchallenged in the courts in the past, due to other routes where the public interest could be served, is now presented to the Supreme Court again for a ruling.The Supreme Court decision could not be challenged, as it is not an appeal concerning EU law. A few years ago, the appeal would have been heard in the House of Lords, which would have been interesting.
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Tuesday 24th September 2019 12:28 GMT Roland6
There is a danger in this that once this precedent has been set, that it will be cited for some other prorogation in future...
Danger?
I think that is a good thing, basically, it would seem that any future PM wanting to progorate Parliament will need to furnish to Parliament with a justification and - to avoid any doubt, ask for Parliament's approval...
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Tuesday 24th September 2019 13:33 GMT TRT
On the whole, I agree. Self-suspension of parliament is a progressive move.
The danger is that recourse to the judiciary becomes a new political tool. Once you've seen the sledgehammer at work, it gets turned to as an instrument of first choice. It has the power to define the limits of political tools used for centuries. The Houses of the Parliament operate with a certain amount of legal freedom, and this is rightly so for many good reasons. It's one reason why there's so much archaic pomp and ways of doing things in the houses - the judiciary, the LAW is a reflection of current moral opinion and society - it has to be so in order that the population subscribes willingly to the rule of law - basic theories of jurisprudence. Just look where you get dissent and protest - the law is incredibly fluid.
Obviously when Parliamentary privilege gets taken too far, then you get this situation, but you don't want the judiciary getting involved in everything.
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Tuesday 24th September 2019 14:13 GMT Doctor Syntax
"A few years ago, the appeal would have been heard in the House of Lords, which would have been interesting."
Not really different. The name and venue might have changed. But these are just the current law lords who would otherwise have sat in the name of the HoL. A case going to the Lords wasn't dealt with by the whole House, just by the senior members of the judiciary.
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Tuesday 24th September 2019 17:11 GMT Doctor Syntax
"There is a danger in this that once this precedent has been set, that it will be cited for some other prorogation in future"
The judgement said it was a one-off. I think this translates as "nobody's been daft enough to try on this before and we don't think anyone will be daft enough in the future". I hope they're right.
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Thursday 26th September 2019 09:42 GMT TRT
She doesn't want to be a politician...
The men who come to me say, “So and so wants to declare what we call ‘a war.’ These are the facts, what do you think?” and I say. Sometimes it’s a smaller thing. They might say, for instance, that “a man called Donald Trump is President but he is in financial collusion with a consortium of high-powered Russians who want him to order the building of a wall because of some sort of social media experiment…
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Tuesday 24th September 2019 15:34 GMT Loyal Commenter
Yes I do understand how your laws work. Someone says it's not illegal, someone else says it is illegal.
Incorrect; in lower courts, someone says a law was broken, and another says they didn't break it, or, rarely, that this law doesn't apply, or even more rarely, a case is not about a law at all, but about a constittional precedent.
In this case, there was no law as such (no law based on an act of parliament), it was a case based on constitutional precedent. When the lower courts are unable to reach a verdict, or there is an appeal, it gets passed up to a higher court, in this case, all teh way to the Supreme Court. They generally only hear cases where there is ambiguity in the law (due to badly worded or contradictory Acts, in which case I believe the later Act takes precedent), or where there is no legal precedent, in which case they have to weigh up the existing constitutional and legal precedents, and make an appropriate judgement.
IANAL, of course, but clearly, neither are you.
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Tuesday 24th September 2019 14:08 GMT Doctor Syntax
"No-one knows what some bits of legislation mean in practice until they're tested in court."
I'm not sure it even goes that far in this case. It was simply a matter of BoJo thinking he could get away with it. Nothing very different to a young lad being caught scrumping but in this case it needed to go further up the legal food chain before he got the telling off he deserved.
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Tuesday 24th September 2019 16:03 GMT Nick Kew
He's been brought up to 'get away with it'. His track record, especially as Foreign Secretary, makes that abundantly clear, when he routinely performed hit-and-run operations so he was conveniently far away when his s**t hit the fan.
The Bully-and-Coward may be a classic public school trope, but I think Boris is rather more so than some of his fellow old-Etonians. Nice-but-dim Cameron, for instance, showed natural politeness, and would never have taken such drastic action against Parliament.
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Tuesday 24th September 2019 20:01 GMT Anonymous Coward
I think the real issue here is that Cameron got a First in PPE,considered harder than Johnson's 2:1 in Greats, and Johnson hugely resents it because he was a King's scholar - but then decided to play Union games rather than work. Johnson thinks he should have had a First,and seems to have daddy issues vis-a-vis Cameron.
Cameron's mistake was not getting enough of the right experience after U. Johnson worked in Grub Street which is full of vultures and hyaenas, Cameron worked in PR. As a result Cameron failed to understand what utter bastards Johnson and Gove are, and that he should have got the flamethrower out early instead of trying to win Johnson over with niceness.
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Tuesday 24th September 2019 21:19 GMT Anonymous Coward
Not entirely.
If you've been to Eton you have already had intensive teaching in Latin and Greek, both there and at your prep school, so you have something like a nine year start. As a result it is said to be possible to coast to a 2:2 in Greats and get a 2:1 with not a lot of effort. PPE may be an equally vague subject not requiring exact knowledge of anything real world practical, but students are likely to have done no more than a couple of years Economics at A level, so it is much harder to coast.
Or so I'm told, by those who went to the Other Place, because we don't have special degrees for would-be politicians where I went. Which is probably why Oxonians dominate Parliament and the Supreme Court has a lot of Fen Poly graduates.
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Wednesday 25th September 2019 08:02 GMT Anonymous Coward
Bong and indeed Bong
"My thinking was that you can get at least a third in PPE just waffling"
For entertainment only, you might want to look up the story of Ferdinand BongBong Marcos (start at e.g. https://en.wikipedia.org/wiki/Bongbong_Marcos#Education but use the sources as well).
The University had to create a special diploma process so he didn't leave with nothing to show for his time in Oxford, nominally studying PPE..
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Tuesday 24th September 2019 11:57 GMT DavCrav
"So Gina Miller has now shown that she knows the law better than the Government, the Attorney General all the political advisers and all their legal representatives, not once but twice."
Not really. What Ms Miller has shown is that she was right. The Government knew this was shady, they just hoped to get away with it.
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Tuesday 24th September 2019 13:42 GMT TRT
Re: Shady?
Bo Jo no show, pro ro no go, co ho properpappajabber. Mo fo.
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Tuesday 24th September 2019 21:00 GMT Anonymous Coward
Re: Shady?
well, she might not be able to demand his head, literally, but there was this phone call conversation tonight, and she might have expressed the "displeasure" in sufficiently clear terms to make it understood that he's expected to resign tomorrow. Or else. Certainly he got a slap when the fact of this conversation has been shared with the media and while they bluntly refused to mention the content, the context makes it clear that that conversation was about "we are not amused".
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Tuesday 24th September 2019 12:29 GMT Charlie Clark
What it tells us, is what many have been saying for a while: that the government was getting bad legal advice because it was partial. They should have kept Dominc Grieve as AG but he wouldn't tell them what they wanted to hear.
May wanted to sideline parliament in the negotiations and got told that she couldn't.
Bojo tried to pull a fast one and is quite likely to end up personally in court.
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Tuesday 24th September 2019 21:09 GMT Anonymous Coward
re. the government was getting bad legal advice
I don't think they were getting a bad advice, in fact we don't know what advice they got, possibly "don't go there" and this advice was, clearly, ignored. Boris decided to take a gamble, perhaps more convinced by the voice whispering in his ear than the voice of his legal counsel, and he lost.
Of course, what's more important than this (hugely) important ruling is, what next. He's very unlikely to come up with any deal by the deadline, I can't see the EU wanting to give HIM that and to see him as a PM to rule in the future, they really, really have had enough of Boris. I'm sure they'd be more happy to see ANYBODY else (well, with exception of a few of his Praetorians ;), but do they really still hope that anybody else would keep the UK in the EU? Do they really want us in the EU any more? I have a strong feeling they just want us to get the fuck out at last...
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Tuesday 24th September 2019 21:58 GMT Dave314159ggggdffsdds
Re: re. the government was getting bad legal advice
"Boris decided to take a gamble"
The only gamble was that people would get distracted by this, and his supporters would forget he promised them we'd leave on 31 Oct. Not much of a risk there.
All he's really done is give himself another excuse for u-turning on that pledge.
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Tuesday 24th September 2019 13:05 GMT Loud Speaker
Re: born in Guyana
a naturalised citizen, of colour and a woman to boot should show up the idiocy of our current set of politicians.
While I congratulate and thank her for doing so, in the circumstances, one would have thought that a tame guinea pig could show up the idiocy of our government.
Make her a Dame of the Empire or similar, for services to democracy and the law.
Surely an honorary LLB at the very least.
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Tuesday 24th September 2019 11:00 GMT defiler
Yep, me too. But I feel strongly about it, and I feel that it needs to be handled very carefully.
I also feel strongly about our Parliament being steamrolled by an inner cloister who believe they can impose their will on the rest of the House. This was genuinely important for our country.
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Tuesday 24th September 2019 11:13 GMT Dave314159ggggdffsdds
To be quite honest, I don't feel great about the constitutional implications of this ruling. I am not at all convinced we haven't just smashed a nut with a sledgehammer. Great, bits of nut everywhere, but what damage has it done to whatever the nut was resting on?
I'm certainly no fan of Al, but he's precisely the kind of person who leads us to overlook important long term principles that actually protect us against people like him, just to have the short term satisfaction of giving him a metaphorical slap. We have to be careful not to fall into the traps that exist here, like accidentally changing the role of the judiciary.
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Tuesday 24th September 2019 11:30 GMT Anonymous Coward
However there were just as big constitutional implications about ruling the other way.
I mean, if the Supreme court rule that proroguing is a legitimate political tool, or that it is entirely up to the government, then the current or future prime minister, could prorogue for a lot longer , maybe a few months to avoid a vote of no confidence, or impeachment or many other reasons. Once the supreme court had ruled it was nothing to do with them then it would be fair game without putting some of the constitution and Westminster 'decencies' down into legislation.
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Tuesday 24th September 2019 17:29 GMT Doctor Syntax
It's part of our long established constitutional arrangements that courts do rule on matters not covered by Statute Law. It's called Common Law. It's worked well for centuries. Apart from anything else it's enabled courts to adapt rulings to a changing world whilst Statute Law requires Parliament finding time to update or repeal obsolete laws.
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Tuesday 24th September 2019 11:16 GMT Anonymous Coward
steamrolled by an inner cloister who believe they can impose their will on the rest of the House
A house that had shown absolutely no sign of coming up with any other options, though.
If the opposition had actually tried putting forward some usable policies it would have helped, instead one lot just want to ignore the referendum, and the other will do anything to prevent the government getting what it wants, whether their voters agree or not. Suggest they put it to the voters, though, and they won't allow that either.
This is a time for proper parliamentary action, not petty party politics, but Corbyn knows that he'd be lynched by his own lot if he tried it.
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Tuesday 24th September 2019 12:11 GMT TRT
I disagree. The current state of Westminster is reflecting EXACTLY the results of the referendum, namely knife edge opinion, opinion which transcends party allegiances, a lack of understanding or knowledge of the consequences, a disregard for the future relationship with the EU and other nations. The national mood reflected in microcosm in the hallowed halls of the Palace of Westminster.
Yay politics! It works.
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Tuesday 24th September 2019 14:45 GMT H in The Hague
You're in good company:
"'Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion … parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. ..."
Edmund Burke's Speech to the Electors of Bristol, 3 Nov. 1774
"'The first duty of a member of Parliament is to do what he thinks in his faithful and disinterested judgement is right and necessary for the honour and safety of Great Britain. His second duty is to his constituents, of whom he is the representative but not the delegate. "
Sir Winston Churchill on the Duties of a Member of Parliament
Source: https://publications.parliament.uk/pa/cm200607/cmselect/cmmodern/337/33706.htm
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