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politicalbetting.com » Blog Archive » The Courts should be an emergency backstop to parliament, not an active player nor a spectator

The Brexit process might have inhibited growth, deterred foreign investment, broken political parties and bitterly divided politics, generated political violence and protest not seen for decades and placed a perhaps irredeemable strain on the Union but it has at least help clarify some important points of constitutional law and for that we should be grateful.

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Peter_the_Punter

First to defect from the previous thread.

MarqueeMark

I concur with my learned friend.

DecrepitJohnL

It may be that the Supreme Court will help identify where these boundaries lie. We are here because all sides, rather than respecting convention and bounds, have actively sought loopholes through which to undermine them.

John Bercow's Bingham lecture given two days ago, that @Byronic brought to our attention on the previous thread, is interesting on this, although the current version on Youtube includes 50 minutes of mainly dead air before Bercow appears. Presumably an edited version will be uploaded at some point.
https://youtu.be/vMv69cNgUes?t=3004

AlastairMeeks

I almost agree. Where I differ is about the significance of the purpose. For starters, the effect is not yet fully known and never can be. We will never know what, if anything, Parliament would have done with the time that would have been at its disposal. We do know that the legislation passed was passed in a hurry with little consideration of its effects and including an amendment that would have been removed if time permitted.

Also, two different prorogations for very different purposes might have the same effect in some respects. I don’t think purpose can be disregarded if the court considers the matter justiciable.

The Courts should, in my view, apply a test similar to the implied duty of trust and confidence that operates in relation to employment contracts. If so, the government does not need to do Parliament’s bidding and is entitled to prefer its own interests. However, it needs to fully evaluate the effects before making its decision and must not act in a way calculated to destroy or seriously damage the public’s confidence in the government. This is a high test for any petitioner to meet and yet the government has done its level best to fail it.

I’m glad I don’t have to help decide this case.

Peter_the_Punter

That's a well argued case, David, and it certainly wouldn't surprise me if their Lordships decided that way. If nothing else, it would be a Very British Compromise.

Barnesian

A well argued, well written piece. Well done.

DecrepitJohnL

Can the court demand evidence of purpose or will it need to be inferred, as in Scotland?

DecrepitJohnL

Come to think of it, I'm not even sure what the aim of the government is. We are told Dominic Cummings is a genius who has war-gamed every permutation but to what end?

To leave the EU; to leave the EU without a deal; to force a deal (whose shape is unknown)? Or is Brexit a red herring and the main aim is to win an autumn election, or to sideline the Brexit Party? Are Cummings and Boris even on the same page, and where is Boris's other guru, Lynton Crosby, in all of this?

NickPalmer

The question here is whether courts should determine whether the Government is acting lawfully, or whether they can rule that it is using legal powers unreasonably and beyond the intent of the law. The latter is partly a political judgment, but it's possible to think of cases where the Government's action is so unreasonable as to be clearly beyond the intent of the law - for example, to suspend Parliament indefinitely by successive prorogations. It's better that the courts arbitrate on this than to expect the monarch to do so.

In most countries, the courts do attempt to divine the intent of the law, rather than blindly go by the semantic interpretation. In principle, this seems to me reasonable. Is prorogation intended to be an instrument enabling Government to avoid scrutiny? Whatever the exact wording, surely not? And if not, is it not correct for the court to attempt to decide whether the intent in this case is substantially to suppress scrutiny, rather than merely allow a normal pause between sessions?

David implicitly concedes this, I think, by saying it's judiciable. But that does mean the court needs to assess the purpose. And once it's doing that, it's hard not to conclude that the Government is not being entirely frank to the court in pretending that this is merely a normal interlude. The question of whether it's judiciable seems to me the higher hurdle.

Incidentally, this will certainly cast a shadow into the future in ways that would worry people wherever they are on the political spectrum. For example, I can imagine a future government proposing that land capable of development which has been neglected (essentially unused for 10 years, say, without environmental explanations such as Green Belt), should be nationalised at agricultural value (and then built on with houses, with the Government taking the profit to build more). That would probably be legal, since I don't think a law explicitly says that owners have a constitutional right to property at commercial market rates (and if I'm wrong it could be repealed). But landowners certainly assume that their land is worth its commercial value and cannot be taken for less, even if they choose to neglect it. Should the courts take a view in such a case?

Polruan

I think the distinction which will emerge is between a prorogation which is political (and not justiciable) and one whose primary purpose is specifically to prevent parliament from exercising its powers, in general. As David says in relation to the High Court judgment, it can’t be acceptable for the executive to have unfettered power to do that. It’s not clear how a ‘routine’ political adjournment can be separate from a non-routine constitutional land grab and the Scottish court’s approach to simply looking at the ‘true purpose’ seems a bit crude. I don’t think it’s at all unreasonable to challenge stated purpose - my background is in tax so I may be reading across from that body of law in an incorrect way, but it’s very normal for the courts in tax cases to take a view on whether as a point of fact a taxpayer’s true purpose in taking an action differed from their professed purpose.

On balance I think the government will win at UKSC but I’m sure the court will have to say something about the limits of executive power for long prorogation because failure to do so would tilt the balance towards a government being able to exercise power unchallenged by any of the machinery of parliamentary accountability except for short periods where it wants to ram through some legislation. It’ll be interesting to see how it approaches the question.

FF43

I don't think this is the correct interpretation of the Court of Session judgment. The judges on my understanding would have accepted any semi-plausible justification of the prorogation but couldn't do so, as the government didn't put up a defence. Once they had decided the government's right to act wasn't unlimited, it was an easy decision that this move was outside those limits.

It's possible the government will have a better argument on the merits of the prorogation for the Supreme Court, should that court also decide the government's right to act is legally bounded.

I should add that, although Scots law is a different beast from English law, I don't think the different systems played much of a part here. The difference is in interpretation. I am also not a lawyer

DecrepitJohnL

OT the tinfoil conspiracy theorists will have more ammunition as the coroner has ruled evidence about the Manchester Arena bombing can be withheld on national security grounds.
https://www.bbc.co.uk/news/uk-england-manchester-49692934

There are probably all sorts of very good reasons for this but as with the political machinations over Brexit, it adds to the narrative of a secretive Establishment out to protect its own.

Pulpstar

Is there something specific in Scottish law that says prorogation is justiciable ? Not talking about tradition here but actual an actual specific difference from English and Welsh law

hamiltonace

A couple of weeks ago I suggested what the Scottish courts would do and was shot down. This is because I feel many English don’t fully understand the way that the Scots think and operate. The Scottish ruling was in essence a shot across the bows. The main objective is to show that Scotland will not roll over if Boris tries to undertake a no deal Brexit against the will of parliament.

Scotland’s politicians rule by consensus not by royal prerogative. We knock down those who get too self important. The ruling of the Supreme Court is not really relevant, the Scottish courts have already placed a marker in the ground.

tlg86

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

Scott_P

FF43 said:

The judges on my understanding would have accepted any semi-plausible justification of the prorogation but couldn't do so, as the government didn't put up a defence. Once they had decided the government's right to act wasn't unlimited, it was an easy decision that this move was outside those limits.

The Government has had ample opportunity to present that defense to the Supreme Court, and has apparently so far failed to do so.

Gadfly

Richard Ekins, Professor of Law, University of Oxford argues that the Court of Session's ruling seems internally inconsistent and suggests that the Government may say that if the High Court had ruled the advice to prorogue unlawful it would not have proceeded with prorogation...

https://blogs.spectator.co.uk/2019/09/why-the-supreme-court-should-reverse-the-scottish-courts-prorogation-ruling/

AlastairMeeks

tlg86 said:

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

A general election that the Prime Minister could ensure took place after the critical time for scrutiny, and only once he had already been defeated in his objective of smuggling the UK out of the EU without Parliamentary scrutiny.

Why should an unelected Prime Minister who has yet to win a single vote in the House of Commons have a general election at a time of his convenience?

NickPalmer

DecrepitJohnL said:

Can the court demand evidence of purpose or will it need to be inferred, as in Scotland?

I don't think the Supreme Court normally demands fresh evidence of any kind. They rule on the evidence already presented at the lower court(s), on the narrow question of whether the courts interpreted the law correctly.

FF43

Pulpstar said:

Is there something specific in Scottish law that says prorogation is justiciable ? Not talking about tradition here but actual an actual specific difference from English and Welsh law

Not a lawyer. On my understanding, Scots law operates more from general principles, so it's less specific than English law. Its origin is the French 15th C legal code but it has been heavily hybridised by English statute law since then.

But I think this case turns more on interpretation than actual statutes, as David's article implies.

AlastairMeeks

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

nico67

tlg86 said:

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

It simply didn’t have the time to deal with both . If you read the full opinion the judges mentioned that . On top of that they criticized the timing , ,when Johnson applied for the suspension parliament was in recess so MPs couldn’t act to stop the suspension.

The Scottish Court ranks above the English Court in authority , the former is the highest court there , the latter is just a high court .

I think the SC have to rule whether the Scottish decision is in line with Scottish law not English law .

Theuniondivvie

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Casino_Royale

This will end with prorogations being regulated by statute in a future Act of Parliament.

That's what happens when conventions are abused for political advantage.

ydoethur

Gadfly said:

Richard Ekins, Professor of Law, University of Oxford argues that the Court of Session's ruling seems internally inconsistent and suggests that the Government may say that if the High Court had ruled the advice to prorogue unlawful it would not have proceeded with prorogation...

https://blogs.spectator.co.uk/2019/09/why-the-supreme-court-should-reverse-the-scottish-courts-prorogation-ruling/

The full ruling is here:

https://socialsecuritychamber.scot/docs/librariesprovider2/default-document-library/2019csih49.pdf?sfvrsn=e3179adf_2

Reading through it, what strikes me is that at no point can the judges cite an actual law. Cases, yes - and I know case law is important - but at no point can they say, 'it's the law parliament must sit.' Indeed, the only law it cites dates back to 1689(!) and actually states can be prorogued for any length of of time as long as it sits 'regularly.'

FF43 said:

Pulpstar said:

Is there something specific in Scottish law that says prorogation is justiciable ? Not talking about tradition here but actual an actual specific difference from English and Welsh law

Not a lawyer. On my understanding, Scots law operates more from general principles, so it's less specific than English law. Its origin is the French 15th C legal code but it has been heavily hybridised by English statute law since then.

But I think this case turns more on interpretation than actual statutes, as David's article implies.

The key to their view is page 13, where they note a difference that in English law the Crown can do pretty much what it likes but under Scottish law because kings were technically appointed they were constrained by different powers. They claim based on a 1916 ruling that where there is a difference the rule more limiting of executive power takes precedence.

I do not look at this judgement and feel the judges are ruling on law. They instead seem to making some highly political decisions. In particular, they effectively rule on whether or not Johnson might have had sensible political reasons to prorogue. That's not at all what judges should be doing!

Activist judges are always rather dangerous (the name of David Eady springs to mind and not in a good way). Particularly so in Scotland where there are so many contentious constitutional issues looming.

But if they are behaving politically, they're also behaving very stupidly. Nothing is more likely to strengthen Johnson's hand in England than a ruling that a bunch of Scottish officials are trying to impede him to be annoying.

Casino_Royale

AlastairMeeks said:

I almost agree. Where I differ is about the significance of the purpose. For starters, the effect is not yet fully known and never can be. We will never know what, if anything, Parliament would have done with the time that would have been at its disposal. We do know that the legislation passed was passed in a hurry with little consideration of its effects and including an amendment that would have been removed if time permitted.

Also, two different prorogations for very different purposes might have the same effect in some respects. I don’t think purpose can be disregarded if the court considers the matter justiciable.

The Courts should, in my view, apply a test similar to the implied duty of trust and confidence that operates in relation to employment contracts. If so, the government does not need to do Parliament’s bidding and is entitled to prefer its own interests. However, it needs to fully evaluate the effects before making its decision and must not act in a way calculated to destroy or seriously damage the public’s confidence in the government. This is a high test for any petitioner to meet and yet the government has done its level best to fail it.

I’m glad I don’t have to help decide this case.

Your penultimate paragraph seems fair.

ydoethur

nico67 said:

tlg86 said:

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

It simply didn’t have the time to deal with both . If you read the full opinion the judges mentioned that . On top of that they criticized the timing , ,when Johnson applied for the suspension parliament was in recess so MPs couldn’t act to stop the suspension.

The Scottish Court ranks above the English Court in authority , the former is the highest court there , the latter is just a high court .

I think the SC have to rule whether the Scottish decision is in line with Scottish law not English law .

Parliament has not been suspended, it has been prorogued. There are a number of important differences between those words and while the drug addled third rate losers at the Beeb are incapable of telling what they are I must admit I expected better from a poster of your intelligence, shrewdness and knowledge of politics.

Scott_P

https://twitter.com/JohnRentoul/status/1172575397743144962

ydoethur

Casino_Royale said:

This will end with prorogations being regulated by statute in a future Act of Parliament.

That's what happens when conventions are abused for political advantage.

And that would be no bad thing. Johnson is misusing his power for advantage. And so would Corbyn, who is a far dodgier character because he is arrogant enough to genuinely believe he is in the right, which Johnson doesn't - he only cares about the greater glamour and wealth of Boris Johnson. So to stop that would be A Good Thing, and Memorable.

But until that time, we should not be seeing this mess being played for political ends by judges, of any nationality. To be blunt, the only person who is coming out of these shenanigans with credit is the judge in Northern Ireland.

nico67

NickPalmer said:

DecrepitJohnL said:

Can the court demand evidence of purpose or will it need to be inferred, as in Scotland?

I don't think the Supreme Court normally demands fresh evidence of any kind. They rule on the evidence already presented at the lower court(s), on the narrow question of whether the courts interpreted the law correctly.

That would be a problem for the government then . The lack of a statement as to the purpose of the suspension was brought up by the Scottish Court .

Equally the court can’t take into account the Benn legislation. They have to rule as to what occurred in the run up to the suspension , the fact MPs acted is irrelevant , in a future circumstance they might not be able to .

kle4

hamiltonace said:

. The Scottish ruling was in essence a shot across the bows. The main objective is to show that Scotland will not roll over if Boris tries to undertake a no deal Brexit against the will of parliament.
.

I hope that's not what they did. I hope they interpreted scottish law and in their learned opinion the judges felt it had been contravened. Not that they wanted to make a political statement and sought a way to do that as you imply.

The effect is the same, but your interpretation insults the judges' professionalism

TheScreamingEagles

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

nico67

ydoethur said:

nico67 said:

tlg86 said:

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

It simply didn’t have the time to deal with both . If you read the full opinion the judges mentioned that . On top of that they criticized the timing , ,when Johnson applied for the suspension parliament was in recess so MPs couldn’t act to stop the suspension.

The Scottish Court ranks above the English Court in authority , the former is the highest court there , the latter is just a high court .

I think the SC have to rule whether the Scottish decision is in line with Scottish law not English law .

Parliament has not been suspended, it has been prorogued. There are a number of important differences between those words and while the drug addled third rate losers at the Beeb are incapable of telling what they are I must admit I expected better from a poster of your intelligence, shrewdness and knowledge of politics.

I use suspension because I’m a bit lazy and it’s easier to spell . I will take your comments on board and stick to the correct legal term. And thanks for the compliment by the way .

ydoethur

kle4 said:

hamiltonace said:

. The Scottish ruling was in essence a shot across the bows. The main objective is to show that Scotland will not roll over if Boris tries to undertake a no deal Brexit against the will of parliament.
.

I hope that's not what they did. I hope they interpreted scottish law and in their learned opinion the judges felt it had been contravened.

Well, if the intention was to put 'a shot across the bows' it was a really silly thing to do. After all, the net result could easily be a ruling from the Supreme Court that the Court of Sessions are muppets who cannot be trusted on constitutional matters. How would that look? And how would that help in any future constitutional cases?

noneoftheabove

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

ydoethur

nico67 said:

ydoethur said:

nico67 said:

tlg86 said:

Even more pertinently, it does seem odd to almost entirely ignore that parliament had the chance to do something about the prorogation period and about a No Deal Brexit during the short September session. It did act on the latter; it chose not to on the former – and will have another chance in October.

And not only that, the PM of the day offered the chance to vote for a general election!

No, the outrage from MPs about prorogation is thoroughly disingenuous.

It simply didn’t have the time to deal with both . If you read the full opinion the judges mentioned that . On top of that they criticized the timing , ,when Johnson applied for the suspension parliament was in recess so MPs couldn’t act to stop the suspension.

The Scottish Court ranks above the English Court in authority , the former is the highest court there , the latter is just a high court .

I think the SC have to rule whether the Scottish decision is in line with Scottish law not English law .

Parliament has not been suspended, it has been prorogued. There are a number of important differences between those words and while the drug addled third rate losers at the Beeb are incapable of telling what they are I must admit I expected better from a poster of your intelligence, shrewdness and knowledge of politics.

I use suspension because I’m a bit lazy and it’s easier to spell . I will take your comments on board and stick to the correct legal term. And thanks for the compliment by the way .

You're welcome

But it is an important difference.

ydoethur

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

kle4

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

ThomasNashe

ydoethur said:

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

It was surely deliberate!

ydoethur

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

kle4

ydoethur said:

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

Surely the odds of such a thing happening unintentionally are astronomically low! Like, UKIP winning a majority, in Uttar Pradesh, kind of low.

ydoethur

ThomasNashe said:

ydoethur said:

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

It was surely deliberate!

Well, it seems unlikely it was an accident, but these days you never know.

The USA being characterised as an 'archaic gunroom' is also rather good.

RobD

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

FF43

Scott_P said:

FF43 said:

The judges on my understanding would have accepted any semi-plausible justification of the prorogation but couldn't do so, as the government didn't put up a defence. Once they had decided the government's right to act wasn't unlimited, it was an easy decision that this move was outside those limits.

The Government has had ample opportunity to present that defense to the Supreme Court, and has apparently so far failed to do so.

It looks like the government didn't get its lawyers to sign off on its prorogation wheeze at the time and this is biting them now. Cummings probably said, we can do whatever we want. Why do we need lawyers?

kle4

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

Looks like the constitutional reform sections of the manifestos will actually have some interesting things in them that will actually see the light of day. It's been awhile.

ydoethur

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) look like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

kle4

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

They can still say what he did was wrong even if it was lawful.

FF43

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

The issue is that the government closed down Parliament against its wishes. Obviously parliament should make its decisions within its own constitutional constraints. This principle already applied to recess, I believe. There's no reason I set for prorogation to be different.

ThomasNashe

I know Matt is venerated on here, but I feel that he's been losing his touch recently. This is a particularly poor effort.

https://twitter.com/MattCartoonist/status/1172550384184938496?s=20

Even Homer nods, I suppose

Dura_Ace

Scott_P said:

https://twitter.com/JohnRentoul/status/1172575397743144962

We do need to be wary of judging BJ by the standards of other politicians. He will never, ever show a quantum of shame, regret, contrition or guilt for anything he ever does or says. Events that would be caustic failures for other politicians will matter less to him.

ydoethur

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

There have been (as the Court of Sessions noted) prorogations up to 21 days in the recent past. I think more likely that a timescale could be set of one month or five days when Parliament would normally sit, whichever is shorter.

It does need sorting out. But it should be sorted out by MPs not by judges going on ego trips.

RobD

FF43 said:

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

The issue is that the government closed down Parliament against its wishes. Obviously parliament should make its decisions within its own constitutional constraints. This principle already applied to recess, I believe. There's no reason I set for prorogation to be different.

Do we actually know what Parliaments wishes were? I don't think they voted against it, for example.

ydoethur

kle4 said:

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

They can still say what he did was wrong even if it was lawful.

Judges are not there to rule on morals, but on laws. When they start doing the former you get some very dodgy situations, like an oil executive being let off admitted perjury because the revelation he went cottaging with 'young men' and then lied about it was damaging enough that he did not need five years in jail to ponder his sins.

Edit - or did you mean the politicians? If so that's fair enough (because it is wrong) but they will still look like fools.

kle4

ThomasNashe said:

I know Matt is venerated on here, but I feel that he's been losing his touch recently. This is a particularly poor effort.

https://twitter.com/MattCartoonist/status/1172550384184938496?s=20

Even Homer nods, I suppose

That one seems fine, but I'd agree the last few linked to on here have been a bit lame.

ExiledInScotland

Good article David. Thank you. What a mess when our unwritten constitution crashes into a divided parliament, the FTPA, parties jostling for advantage and people who have lost their objectivity.

Brexit or not, things are and will be not as good as we hope or as bad as we fear. Breathe.

Stuartinromford

kle4 said:

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

They can still say what he did was wrong even if it was lawful.

I wonder if the political question is more interesting than the legal one.

A lot of the prorogation time has happened now, and parliament has got a backstop against no deal in place anyway.

But, if (say) the final judgement is "not illegal, but shabby", how shabby does shabby have to be to either vindicate the government, or to make its position untenable?

DecrepitJohnL

ThomasNashe said:

I know Matt is venerated on here, but I feel that he's been losing his touch recently. This is a particularly poor effort.

https://twitter.com/MattCartoonist/status/1172550384184938496?s=20

Six papers lead on Cameron's book. On a slow news day, it is the main story.
https://www.bbc.co.uk/news/blogs-the-papers-49696550
(It is perhaps unusual that a Telegraph cartoonist should feature a book being serialised in the Times.)

kle4

FF43 said:

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

The issue is that the government closed down Parliament against its wishes. Obviously parliament should make its decisions within its own constitutional constraints. This principle already applied to recess, I believe. There's no reason I set for prorogation to be different.

There seems a high probability as a result of all this procedural gsmeplaying and at best testing of the bounds of the law, that the next non Boris government will seek to tidy up some issues, probably throwing in a few personal bugbear, and have a bunch of new unintended outcomes.

The focus will probably be repeal of the FTPA and then a grab bag of other issues that have popped up about prorogation etc.

Black_Rook

Mr Herdson presents what seems to me to be a strong argument, although frankly after the events of the past week I wouldn't dare to venture an opinion as to what will happen next week. I thought that the Government would resign and put the Opposition into bat once denied the opportunity of a snap General Election (as the best and probably only legal means of avoiding compliance with the Benn Act.) It is still there, held hostage by the Commons.

Looking both backwards over the last decade and forwards to the next, it occurs to me that we may very well be in for a prolonged period of Hostage Government. Since the last Blair victory in 2005, we've had a hung Parliament, a very narrow Conservative victory, a hung Parliament again, and the learned consensus here and elsewhere appears to be that we are headed for another hung Parliament after this one. There's been much talk of how the route to a Tory majority looks very difficult, and nobody credits Labour with any realistic chance of winning outright (and one prays that this is the case!) So, what happens next?

In the past we used to assume that the failure of the Conservatives to win meant that Labour would come back into Government and could do whatever it pleased. What, after all, could the other left-leaning parties realistically do to frustrate it? The SNP or the (post-Coalition) Lib Dems could hardly be seen to be voting down a Labour administration's agenda, because that would mean the fall of the Government and putting the Evil Tories back in.

But the FTPA, as made plain by the events of the last couple of weeks, changes everything. Now, if the partners that a Labour minority administration needs to function aren't satisfied with whatever scraps are offered from its table to secure their support, they don't need to vote out Tweedledum and put Tweedledee in - they can just create another impotent Hostage Government by refusing either to pass any legislation or to VONC the Prime Minister. At the moment the Tories are in office but not in power; after the next election, it may very well be Labour's turn to find itself in the same predicament - at least until the Labour and Conservative leaderships both find it more convenient to go to the country again than to keep the pantomime going.

Thus, it is quite possible that an election in November or next Spring could be followed by another in Autumn 2020, and then perhaps a couple more in 2021? The reason that the 2010-2015 Coalition lasted the distance was that the parties involved were willing to be seen to be working together, were both just about close in terms of policy, and possessed sufficient willingness to compromise. So long as we have two large political parties that are polar opposites and no longer capable of winning Parliamentary majorities, and the MPs holding the balance of power in the centre are unwilling or unable to work with either of them, then Britain will be ungovernable.

kle4

Stuartinromford said:

kle4 said:

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

They can still say what he did was wrong even if it was lawful.

I wonder if the political question is more interesting than the legal one.

A lot of the prorogation time has happened now, and parliament has got a backstop against no deal in place anyway.

But, if (say) the final judgement is "not illegal, but shabby", how shabby does shabby have to be to either vindicate the government, or to make its position untenable?

Tenability is an odd one because the government has already been losing votes all over the place, has no majority, and all parties agree they want an election early, they just dispute when (depending on who they think would win), so its barely tenable now.

But in political terms they are, bizarrely, benefits to losing because they can say the establishment is against brexit. The brazen lie that people like Kwarteng were speaking off script shows how shameless they would be, so I dont think theres anything that imminently would cause Boris to find his position untenable.

ydoethur

kle4 said:

FF43 said:

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

The issue is that the government closed down Parliament against its wishes. Obviously parliament should make its decisions within its own constitutional constraints. This principle already applied to recess, I believe. There's no reason I set for prorogation to be different.

There seems a high probability as a result of all this procedural gsmeplaying and at best testing of the bounds of the law, that the next non Boris government will seek to tidy up some issues, probably throwing in a few personal bugbear, and have a bunch of new unintended outcomes.

The focus will probably be repeal of the FTPA and then a grab bag of other issues that have popped up about prorogation etc.

What this whole mess has shown is we desperately need a constitutional convention to come up with a new way of governing the country. Since the Blair years and his 'parish councils' and half-baked Lords reforms things have just got more and more out of hand. And it's not just in national politics, or devolved politics. Local government is an even bigger mish-mash and shambles of competing, ill-thought out and usually ineffectual compromise arrangements. Arguably therefore you could go back further to Thatcher's local government reforms in the 1980s as where things started going downhill.

But at the moment where we need political leaders of energy, courage, skill, determination and integrity, we have Johnson and Corbyn leading cabinets that would look woefully out of their depth running Rugeley Town Council.

MikeSmithson

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

MarqueeMark

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

Theuniondivvie

kle4 said:

ydoethur said:

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

Surely the odds of such a thing happening unintentionally are astronomically low! Like, UKIP winning a majority, in Uttar Pradesh, kind of low.

Or UKIP winning a majority, period, as our septic cousins would say.

MarqueeMark

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

"may" doing the heavy lifting again there......

kle4

Black_Rook said:

Mr Herdson presents what seems to me to be .

Looking both backwards over the last decade and forwards to the next, re and elsewhere appears to be that we are headed for another hung Parliament after this one. There's been much talk of how the route to a Tory majority looks very difficult, and nobody credits Labour with any realistic chance of winning outright (and one prays that this is the case!) So, what happens next?

In the past we used to assume that the failure of the Conservatives to win meant that Labour would come back into Government and could do whatever it pleased. What, after all, could the other left-leaning parties realistically do to frustrate it? The SNP or the (post-Coalition) Lib Dems could hardly be seen to be voting down a Labour administration's agenda, because that would mean the fall of the Government and putting the Evil Tories back in.

But the FTPA, as made plain by the events of the last couple of weeks, changes everything. Now, if the partners that a Labour minority administration needs to function aren't satisfied with whatever scraps are offered from its table to secure their support, they don't need to vote out Tweedledum and put Tweedledee in - they can just create another impotent Hostage Government by refusing either to pass any legislation or to VONC the Prime Minister. At the moment the Tories are in office but not in power; after the next election, it may very well by Labour's turn to find itself in the same predicament - at least until the Labour and Conservative leaderships both find it more convenient to go to the country again than to keep the pantomime going.

Thus, it is quite possible that an election in November or next Spring could be followed by another in Autumn 2020, and then perhaps a couple more in 2021? The reason that the 2010-2015 Coalition lasted the distance was that the parties involved were willing to be seen to be working together, were both just about close in terms of policy, and possessed sufficient willingness to compromise. So long as we have two large political parties that are polar opposites and no longer capable of winning Parliamentary majorities, and the MPs holding the balance of power in the centre are unwilling or unable to work with either of them, then Britain will be ungovernable.

Thoughtful post, and Scary stuff. I have to admit I never thought we would get hostage government as a potential long term thing, repeatable as you note, and it is persuading me that while the issue is still mainly the political culture not the base rules, the FTPA is more trouble than it's worth.

But giving power back to government seems like an odd move for parliament or currently opposition parties given arguments on prorogation.

kle4

ydoethur said:

kle4 said:

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

They can still say what he did was wrong even if it was lawful.

Judges are not there to rule on morals, but on laws. When they start doing the former you get some very dodgy situations, like an oil executive being let off admitted perjury because the revelation he went cottaging with 'young men' and then lied about it was damaging enough that he did not need five years in jail to ponder his sins.

Edit - or did you mean the politicians? If so that's fair enough (because it is wrong) but they will still look like fools.

Yes, the politicians. I suppose the judges can say things like it being unconventional if they care to make a point that lawful does not mean normal.

But this might be moot as it may be it was indeed illegal.

CarlottaVance

The “on calmer reflection” thoughts on Cameron aren’t getting any calmer:

https://twitter.com/davidallengreen/status/1172782363719413765?s=21

https://twitter.com/davidallengreen/status/1172783381836423168?s=20

ydoethur

Theuniondivvie said:

kle4 said:

ydoethur said:

TheScreamingEagles said:

Theuniondivvie said:

AlastairMeeks said:

https://twitter.com/nickbubb1/status/1172560700222398471?s=21

The bottom line I can see is 'nausea caged'.

Embedded tweets don't show you the full picture.

If you click on the tweet itself you'll see this.

Whether deliberate or not, that is funny!

Surely the odds of such a thing happening unintentionally are astronomically low! Like, UKIP winning a majority, in Uttar Pradesh, kind of low.

Or UKIP winning a majority, period, as our septic cousins would say.

I don't know. I think they'd win a majority in Uttar Bullshit, although Corbyn and Johnson must be running them close right now.

kle4

ydoethur said:

kle4 said:

FF43 said:

RobD said:

ydoethur said:

noneoftheabove said:

Do most democracies have an equivalent of prorogation? It seems to have very few benefits anyway (regardless of length) and is open to obvious abuse and contention.

Rather than the courts or parliament setting limits on when and how the govt can prorogue, should we not just consign it to history?

No. The rules are bound up with parliamentary sessions, that set time limits on bills, Lords vetos and even elections. There is a reason why we have those things and getting rid of prorogation would mean, for example, the Lords would be able to kick out any bill they chose.

Most parliamentary democracies have something similar - the US has annual sessions, for example. I think India do as well.

I wouldn't be surprised to see a future act limiting the amount of time between parliament being prorogued and a new session starting. Maybe seven days?

The issue is that the government closed down Parliament against its wishes. Obviously parliament should make its decisions within its own constitutional constraints. This principle already applied to recess, I believe. There's no reason I set for prorogation to be different.

There seems a high probability as a result of all this procedural gsmeplaying and at best testing of the bounds of the law, that the next non Boris government will seek to tidy up some issues, probably throwing in a few personal bugbear, and have a bunch of new unintended outcomes.

The focus will probably be repeal of the FTPA and then a grab bag of other issues that have popped up about prorogation etc.

What this whole mess has shown is we desperately need a constitutional convention to come up with a new way of governing the country. Since the Blair years and his 'parish councils' and half-baked Lords reforms things have just got more and more out of hand. And it's not just in national politics, or devolved politics. Local government is an even bigger mish-mash and shambles of competing, ill-thought out and usually ineffectual compromise arrangements. Arguably therefore you could go back further to Thatcher's local government reforms in the 1980s as where things started going downhill.

But at the moment where we need political leaders of energy, courage, skill, determination and integrity, we have Johnson and Corbyn leading cabinets that would look woefully out of their depth running Rugeley Town Council.

Probably would have been nothing but a talking shop, but Ed M's constitutional convention idea didnt seem half bad. It might have at least made a slight dent in the vast amount of things that could usefully be reviewed.

kle4

CarlottaVance said:

The “on calmer reflection” thoughts on Cameron aren’t getting any calmer:

https://twitter.com/davidallengreen/status/1172782363719413765?s=21

https://twitter.com/davidallengreen/status/1172783381836423168?s=20

He would have been removed had he not walked away. And as I've noted with people saying he should STFU we have those saying how dare he walk away and how dare he even just say something. The anger, mostly at the result, means people are literally criticising him whether he acted or not acted, which rather demonstrates the real thing they are mad at.

ydoethur

kle4 said:

Probably would have been nothing but a talking shop, but Ed M's constitutional convention idea didnt seem half bad. It might have at least made a slight dent in the vast amount of things that could usefully be reviewed.

As the years roll on, for all his faults I get nostalgic for Ed Miliband.

ThomasNashe

MarqueeMark said:

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

"may" doing the heavy lifting again there......

If your life depends on the regular supply of one of these drugs 100% certainty is what you require, and what any government should be able to assure you.

Jonathan

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

Viagra!!! No wonder Mike is upset.

ydoethur

Jonathan said:

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

Viagra!!! No wonder Mike is upset.

Will a shortage of viagra make Brexit a flop? Or will it mean it isn't a total cock up?

Pause.

Ah, my coat...

See you later.

malcolmg

hamiltonace said:

A couple of weeks ago I suggested what the Scottish courts would do and was shot down. This is because I feel many English don’t fully understand the way that the Scots think and operate. The Scottish ruling was in essence a shot across the bows. The main objective is to show that Scotland will not roll over if Boris tries to undertake a no deal Brexit against the will of parliament.

Scotland’s politicians rule by consensus not by royal prerogative. We knock down those who get too self important. The ruling of the Supreme Court is not really relevant, the Scottish courts have already placed a marker in the ground.

Another good post Hamilton, be good to see you post more often on here. We see few balanced unionist posts on here. Also helps re the ignorance regarding Scotland and its politics etc on here.

nico67

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

The Queen can’t refuse to act on the advice of her government . And the conference season is under recess which means a lot of things continue . Also MPs can be recalled.

The Scottish Court found the prorogations purpose wasn’t to prepare for a Queens Speech but to restrict Parliament scrutiny and its ability to act .

Now you could say the prorogation always does that but the judges viewed this one as excessive in length .

The problem the SC has now , if it rules it was legal then that could give a green light for a future government to push the boundaries because they could use the SC ruling as legal basis .

The SC needs in its judgement to make sure it finds a way of restricting what a government can do even if says it was legal .

nichomar

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

What happens if the monarch is suffering from dementia? There have been quite a few reported cases where posh con merchants get elderly pensioners to sign documents about which they haven't a clue.

malcolmg

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) look like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

Whether the judges are scared to uphold the fact that everybody already knows does not matter , other than it will prove they are just another part of the elite establishment and don't want to upset the cosy setup they all have.
Everybody already knows the truth and judges trying to say different will just make it more obvious.

Jonathan

ydoethur said:

Jonathan said:

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

Viagra!!! No wonder Mike is upset.

Will a shortage of viagra make Brexit a flop? Or will it mean it isn't a total cock up?

Pause.

Ah, my coat...

See you later.

With that news you need a stiff one.

Yellow_Submarine

Casino_Royale said:

This will end with prorogations being regulated by statute in a future Act of Parliament.

That's what happens when conventions are abused for political advantage.

I think that's right. And since the Civil War once prerogative is extinguished it can't be recreated. To that extent Boris has used a ' Bee sting ' usable only once or at least till the next non Tory government. It also has knock on impact on the Parliament Act as the Lords' delaying powers are set by sessions not a fixed period of time.

Morris_Dancer

Mr. Jonathan,

https://www.youtube.com/watch?v=PSZArCpYeo8

kle4

malcolmg said:

ydoethur said:

kle4 said:

If the prorogation is deemed lawful it will remain a crappy and shiftily done thing, but I wonder if all those politicians condemning Boris as a crook over it will apologise if the judgement is he broke no rules.

Of course not. Joanna Cherry apologise? The very idea is as alien to her as truthfulness is to Dominic Cummings.

At the same time, such a ruling would be highly damaging to Remain. It really would (well, it does now, TBH) look like sore losers trying to change the rules. I wonder if they have thought through the possible consequences of that or whether they just lashed out without thinking.

Whether the judges are scared to uphold the fact that everybody already knows does not matter , other than it will prove they are just another part of the elite establishment and don't want to upset the cosy setup they all have.
Everybody already knows the truth and judges trying to say different will just make it more obvious.

God forbid judges should make a decision about what is lawful and not what is right, as seen by politics if the day. You clearly only trust a court judgement if you like it, which is no different to the disgraceful enemy of the people stuff the Mail and co throw out.

I struggle to understand why people have a problem with the idea that the judges might say recent actions are legal, but that that has only minor bearing. To me the legality is a procedural point, it affects whether parliament is prorogued and what actions are taken next, but I dont need a judges validation for me to think it was wrong, and I wont be petty and silly and moan about the establishment like a conspiricist ukipper if they do decide it is legal.

kinabalu

Agree with David. A triangulation of the 2 verdicts is the way forward.

Prorogation should be held (i) to be a proper matter for the courts and (ii) in this case to be lawful.

I think the SC will agree too. I would be very surprised if their verdict is anything but this.

MarqueeMark

Cameron seems to have dropped into a sympathy-free zone.

And a free-fire sympathy-fee zone at that......

algarkirk

Pretty much agree. FWIW I think the SC will go (by a majority) with the view that prorogation is justiciable, will indicate a test, and conclude the test has not been met here. If they think that we have essentially a hostage minority government where parliament has declined the sensible way out of it - an election - they may regard that as a relevant circumstance.

Roger

An excellent thread with some outstanding contributions. Nick Palmer Polruan Alastair Decrepit FF43 David of course....... But the one that got me thinking was a non lawyerly one from Hamilonace. In essence the Scots don't believe in Royal Perogatives. In his words;

"Scotland’s politicians rule by consensus not by royal prerogative. We knock down those who get too self important"

What Johnson has done is patently unfair. He has overriden the will of the people's representatives by telling them to go home. He has then sent his Cabinet into the towns and villages carrying baubles. This morning it was Nicky Morgan with Millions for Britains High Streets. Yesterday it was Johnson with bucket loads for Schools. Before that Javed with shedloads for hospitals.

Had the late Robert Mugabe silenced his opposition while playing Father Christmas with the nation's bankroll how would we have viewed it?

MarqueeMark

nico67 said:

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

The Queen can’t refuse to act on the advice of her government . And the conference season is under recess which means a lot of things continue . Also MPs can be recalled.

The Scottish Court found the prorogations purpose wasn’t to prepare for a Queens Speech but to restrict Parliament scrutiny and its ability to act .

Now you could say the prorogation always does that but the judges viewed this one as excessive in length .

The problem the SC has now , if it rules it was legal then that could give a green light for a future government to push the boundaries because they could use the SC ruling as legal basis .

The SC needs in its judgement to make sure it finds a way of restricting what a government can do even if says it was legal .

If she can't refuse to act on the "advice" of her Govt., it isn't "advice", it is an "instruction".

Which is it?

kle4

MarqueeMark said:

nico67 said:

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

The Queen can’t refuse to act on the advice of her government . And the conference season is under recess which means a lot of things continue . Also MPs can be recalled.

The Scottish Court found the prorogations purpose wasn’t to prepare for a Queens Speech but to restrict Parliament scrutiny and its ability to act .

Now you could say the prorogation always does that but the judges viewed this one as excessive in length .

The problem the SC has now , if it rules it was legal then that could give a green light for a future government to push the boundaries because they could use the SC ruling as legal basis .

The SC needs in its judgement to make sure it finds a way of restricting what a government can do even if says it was legal .

If she can't refuse to act on the "advice" of her Govt., it isn't "advice", it is an "instruction".

Which is it?

It's an instruction that we permit to call advice.

kyf_100

Jonathan said:

ydoethur said:

Jonathan said:

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

Viagra!!! No wonder Mike is upset.

Will a shortage of viagra make Brexit a flop? Or will it mean it isn't a total cock up?

Pause.

Ah, my coat...

See you later.

With that news you need a stiff one.

On the plus side, looks like we're finally getting a soft brexit.

Taxi!

CarlottaVance

MikeSmithson said:

https://twitter.com/MSmithsonPB/status/1172779846235250689?s=19

Call me sceptical but at least one of those is a globally available generic.

Richard_Tyndall

Casino_Royale said:

This will end with prorogations being regulated by statute in a future Act of Parliament.

That's what happens when conventions are abused for political advantage.

Surely the point here is that we should take this as a warning about 'Conventions'. If it turns out that this is legal then we should perhaps be grateful for Boris's stupidity in doing this for such seemingly pointless reasons. It tells us that someone else could do the same thing for far more serious and dangerous reasons in the future and we do, as you say, need to change the law to end these conventions.

nico67

MarqueeMark said:

nico67 said:

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

The Queen can’t refuse to act on the advice of her government . And the conference season is under recess which means a lot of things continue . Also MPs can be recalled.

The Scottish Court found the prorogations purpose wasn’t to prepare for a Queens Speech but to restrict Parliament scrutiny and its ability to act .

Now you could say the prorogation always does that but the judges viewed this one as excessive in length .

The problem the SC has now , if it rules it was legal then that could give a green light for a future government to push the boundaries because they could use the SC ruling as legal basis .

The SC needs in its judgement to make sure it finds a way of restricting what a government can do even if says it was legal .

If she can't refuse to act on the "advice" of her Govt., it isn't "advice", it is an "instruction".

Which is it?

Good point . It’s really an instruction couched as advice. It just sounds better !

RobD

nico67 said:

MarqueeMark said:

On topic, I can imagine a scenario where following an election, it is clear the sitting PM has been turfed out. So as the results come in, he goes to the Palace and prorogues Parliament for five years. That would clearly be an abuse of the right to prorogue. But equally, it is such an obvious abuse that you would feel the Monarch would be entirely within their powers to refuse that prorogation.

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

I think if prorogation had been until 1st November, with the obvious intent of ensuring that Brexit happened because any Parliamentary intervention was blocked, then HM the Q might well have intervened. But it wasn't, there is really nothing happening until after the EU summit for Parliament to get its teeth into -and so I would be seriously disquieted if the SC were to overturn the prorogation in this instance.

The Queen can’t refuse to act on the advice of her government . And the conference season is under recess which means a lot of things continue . Also MPs can be recalled.

The Scottish Court found the prorogations purpose wasn’t to prepare for a Queens Speech but to restrict Parliament scrutiny and its ability to act .

Now you could say the prorogation always does that but the judges viewed this one as excessive in length .

The problem the SC has now , if it rules it was legal then that could give a green light for a future government to push the boundaries because they could use the SC ruling as legal basis .

The SC needs in its judgement to make sure it finds a way of restricting what a government can do even if says it was legal .

Why can't she?

Recidivist

kle4 said:

CarlottaVance said:

The “on calmer reflection” thoughts on Cameron aren’t getting any calmer:

https://twitter.com/davidallengreen/status/1172782363719413765?s=21

https://twitter.com/davidallengreen/status/1172783381836423168?s=20

He would have been removed had he not walked away. And as I've noted with people saying he should STFU we have those saying how dare he walk away and how dare he even just say something. The anger, mostly at the result, means people are literally criticising him whether he acted or not acted, which rather demonstrates the real thing they are mad at.

No doubt he would have been removed. But he would have done some good by fighting rather than running.

Dura_Ace

MarqueeMark said:

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

This is ridiculous. HM the Q is a 93 year old inbred who wasn't that bright to start with. That's not a constitutional check.

Sunil_Prasannan

Dura_Ace said:

MarqueeMark said:

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

This is ridiculous. HM the Q is a 93 year old inbred who wasn't that bright to start with. That's not a constitutional check.

MONARCHY = SOCIALISM!

Morris_Dancer

I feel some sympathy for Cameron. Whilst he made a significant error in not having the official Leave campaign define (even in broad terms) what leaving meant, he also had individuals in his own party actively campaigning for something they didn't actually want.

And then MPs voted for things they didn't want.

RobD

Sunil_Prasannan said:

Dura_Ace said:

MarqueeMark said:

And therein lies my point - that prorogation already has an inbuilt mechanism to prevent abuse, without resorting to the courts. It is Her Majesty's Government - if it abuses power vested in it, Her Majesty could remedy that abuse. The Sovereign in this case might have had qualms about shutting down Parliament for six weeks over the conference period - but not enough to intervene to reduce it.

This is ridiculous. HM the Q is a 93 year old inbred who wasn't that bright to start with. That's not a constitutional check.

MONARCHY = SOCIALISM!

A question for Sunil. Is anything not socialism?

algarkirk

kinabalu said:

Agree with David. A triangulation of the 2 verdicts is the way forward.

Prorogation should be held (i) to be a proper matter for the courts and (ii) in this case to be lawful.

I think the SC will agree too. I would be very surprised if their verdict is anything but this.

It might be good if they commented on the issue of UK wide parliament issues being raised in multiple and different national courts with different legal traditions. It is plainly impossible for something a UK government does to a UK parliament to be lawful in England but unlawful in Scotland and it needs sorting.