The Queen can’t refuse to act on the advice of her government .
Completely incorrect.
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
On topic. The whole header misses the whole point. It’s not a question of length. It’s a question of due process. If the process says you ask for it explaining what you want it for, and honestly explain what you want it for, it’s legal. If you mislead the head of state in what you want it for, it clearly breaks the law because that is not how the process is supposed to work. After it was granted evidence emerged that the reasoning for it was not the honest one. It was a lie.
But things have moved on even from there. Without being in an election campaign does Boris even need this? What he needs is a shorter suspension to be seen to be actively preparing brexit, special deal with EU on medicine for example to shut the anti no deal crowd up completely on medicine. There has to be a pile of brexit legislation taking us down the road to brexit this remainer parliament just couldn’t vote down, and what shores PM up right now is doing just that, getting that through Parliament.
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.
For most people, even most politicians, it probably works quite well. "Don't give this esteemed old lady dodgy advice, because she has to follow it."
Think how every other occupant of No 10 would respond to that. Now think about the present lot.
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?
Instruction. It's a useful legal fiction which enables HM the Queen to be what she is and keep above politics. Long may it last. FTPA 2(7) for example uses words carefully chosen to tip-toe around it.
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.
Whether parliament would have continued in business never got voted on because there was no mechanism to do so. Nevertheless the principle that government looks after its business and parliament likewise, within their respective constitutional constraints is surely a straightforward one.
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.
Whether parliament would have continued in business never got voted on because there was no mechanism to do so. Nevertheless the principle that government looks after its business and parliament likewise, within their respective constitutional constraints is surely a straightforward one.
Parliament has plenty of mechanisms to make their voice heard. They even changed the law with the Benn Act in a few days.
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.
Whether parliament would have continued in business never got voted on because there was no mechanism to do so. Nevertheless the principle that government looks after its business and parliament likewise, within their respective constitutional constraints is surely a straightforward one.
Parliament has plenty of mechanisms to make their voice heard. They even changed the law with the Benn Act in a few days.
On topic. The whole header misses the whole point. It’s not a question of length. It’s a question of due process. If the process says you ask for it explaining what you want it for, and honestly explain what you want it for, it’s legal. If you mislead the head of state in what you want it for, it clearly breaks the law because that is not how the process is supposed to work. After it was granted evidence emerged that the reasoning for it was not the honest one. It was a lie.
But things have moved on even from there. Without being in an election campaign does Boris even need this? What he needs is a shorter suspension to be seen to be actively preparing brexit, special deal with EU on medicine for example to shut the anti no deal crowd up completely on medicine. There has to be a pile of brexit legislation taking us down the road to brexit this remainer parliament just couldn’t vote down, and what shores PM up right now is doing just that, getting that through Parliament.
All politics, like all life, is a mishmash of mixed motives, a fact which HM the Queen will have worked out some time ago. Her ability and power to 'advise, warn and caution' remains.
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.
I'm sure that was an opinion you shared loudly whilst serving in H.M. Armed Forces......
On topic. The whole header misses the whole point. It’s not a question of length. It’s a question of due process. If the process says you ask for it explaining what you want it for, and honestly explain what you want it for, it’s legal. If you mislead the head of state in what you want it for, it clearly breaks the law because that is not how the process is supposed to work. After it was granted evidence emerged that the reasoning for it was not the honest one. It was a lie....
The header does not miss the point at all. The issue the SC is going to have to decide is whether it may even look into the process of prorogation, and if it can, then what tests it may apply. It’s fairly clear that the government lied - one can argue about that, but as far as the particular legal issue is concerned, that is irrelevant.
Courts will simply not get involved in decisions they class as political; they do not concern themselves with lies told in the course of political conduct.
The Queen can’t refuse to act on the advice of her government .
Completely incorrect.
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
It would be more accurate to say that the monarch will attempt to avoid, at almost all costs, a decision to refuse to act on the advice of government, even if the power to do so still exists.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
On topic. The whole header misses the whole point. It’s not a question of length. It’s a question of due process. If the process says you ask for it explaining what you want it for, and honestly explain what you want it for, it’s legal. If you mislead the head of state in what you want it for, it clearly breaks the law because that is not how the process is supposed to work. After it was granted evidence emerged that the reasoning for it was not the honest one. It was a lie....
The header does not miss the point at all. The issue the SC is going to have to decide is whether it may even look into the process of prorogation, and if it can, then what tests it may apply. It’s fairly clear that the government lied - one can argue about that, but as far as the particular legal issue is concerned, that is irrelevant.
Courts will simply not get involved in decisions they class as political; they do not concern themselves with lies told in the course of political conduct.
On this, it is worth pointing out that the courts would not uphold Manifestos as being any sort of contract with the voters - it was implicit that politicians just have the freedom to lie and not be held to account for that.....
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.
I’d agree with that, and would be reasonably satisfied were they to follow something along the lines of David’s reasoning - though I would be deeply disturbed were the court to rule the English High court decision was correct.
If the Supreme Court can’t find reason from constitutional first principles on the grounds of parliamentary sovereignty to enquire at all into the exercise of the prorogation prerogative, then our unwritten constitution is toothless, and we need a written one.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
If the English don't want to accept this point then English MPs can stay prorogued, just have the Scottish MPs back at Westminster. (Welsh and NI can figure it out for themselves).
The Queen can’t refuse to act on the advice of her government .
Completely incorrect.
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
It would be more accurate to say that the monarch will attempt to avoid, at almost all costs, a decision to refuse to act on the advice of government, even if the power to do so still exists.
Rather that in the past governments would seek to avoid placing the monarch into the political sphere. So successful has been this policy by governments of all shades that there has been very little public debate or awareness of the constitutional role of the sovereign and the government ..... that is until the Boris crossed the threshold of 10 Downing Street.
Can someone tecchie please explain why as Brit abroad using a Uk mobile why its so impossible to watch the mini in play highlights of the cricket. Its absolutely ludicrous banning its own citizens from watching BBC acquired content... trying to.listen to TMS highlights is equally difficut to find and watch... the sooner the BBC licence goes the better then we can pay to watch/ listen or not as the case may be...
One part of David’s well reasoned header I’d take issue with is this: It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold...
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
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.
I'm sure that was an opinion you shared loudly whilst serving in H.M. Armed Forces......
Wide eyed worship of the monarch in the forces isn't absolute. I have it on pretty good authority that after one Royal vist to an RN ship, a royal turd was plucked from the scuppers and preserved in a bottle (geddit!), to be displayed on special occasions.
Firstly, the Scottish judgment does not proceed on some peculiarly of Scots law except in one important respect which is process driven rather than principle. The Scottish case started well before the High Court. The petition was lodged as were answers. In those answers the government set out their position. Amongst other points the government pled the case was premature because it was entirely hypothetical. What the documents showed was that this was dishonest. In fact the prorogation was already planned.
This was then aggravated when the Crown opposed an interim order on the Thursday partly on this basis. The interim order was refused and then the order itself was issued on the Monday. To put it politely the Scottish Court was seriously underwhelmed by this. There is a duty of candour on public bodies facing judicial review proceedings and the government was not candid (for the avoidance of doubt I am sure counsel made their representations in good faith and on instruction). It was this dishonesty that led the court and Lord Brodie in particular to infer that there was no honest purpose for the prorogation. One way of looking at this is that the government brought this on themselves by their behaviour.
Did that lead the Court astray and result in them going too far? That’s for the SC to determine.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
Can someone tecchie please explain why as Brit abroad using a Uk mobile why its so impossible to watch the mini in play highlights of the cricket. Its absolutely ludicrous banning its own citizens from watching BBC acquired content... trying to.listen to TMS highlights is equally difficut to find and watch... the sooner the BBC licence goes the better then we can pay to watch/ listen or not as the case may be...
If you could several million Brits living abroad would get to use I-Player, etc for free and the Beeb don't like that idea. Can be got round if you have a VPN
The Queen can’t refuse to act on the advice of her government .
Completely incorrect.
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
It would be more accurate to say that the monarch will attempt to avoid, at almost all costs, a decision to refuse to act on the advice of government, even if the power to do so still exists.
Rather that in the past governments would seek to avoid placing the monarch into the political sphere. So successful has been this policy by governments of all shades that there has been very little public debate or awareness of the constitutional role of the sovereign and the government ..... that is until the Boris crossed the threshold of 10 Downing Street.
I don’t think it’s ‘rather’. Both things are true.
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.
I'm sure that was an opinion you shared loudly whilst serving in H.M. Armed Forces......
Wide eyed worship of the monarch in the forces isn't absolute. I have it on pretty good authority that after one Royal vist to an RN ship, a royal turd was plucked from the scuppers and preserved in a bottle (geddit!), to be displayed on special occasions.
I met somebody who claims to have seen her have a piss via an artfully concealed hole in the wall at RAF Northolt. Pre smartphone era unfortunately.
Can someone tecchie please explain why as Brit abroad using a Uk mobile why its so impossible to watch the mini in play highlights of the cricket. Its absolutely ludicrous banning its own citizens from watching BBC acquired content... trying to.listen to TMS highlights is equally difficut to find and watch... the sooner the BBC licence goes the better then we can pay to watch/ listen or not as the case may be...
If you could several million Brits living abroad would get to use I-Player, etc for free and the Beeb don't like that idea. Can be got round if you have a VPN
Firstly, the Scottish judgment does not proceed on some peculiarly of Scots law except in one important respect which is process driven rather than principle. The Scottish case started well before the High Court. The petition was lodged as were answers. In those answers the government set out their position. Amongst other points the government pled the case was premature because it was entirely hypothetical. What the documents showed was that this was dishonest. In fact the prorogation was already planned.
This was then aggravated when the Crown opposed an interim order on the Thursday partly on this basis. The interim order was refused and then the order itself was issued on the Monday. To put it politely the Scottish Court was seriously underwhelmed by this. There is a duty of candour on public bodies facing judicial review proceedings and the government was not candid (for the avoidance of doubt I am sure counsel made their representations in good faith and on instruction). It was this dishonesty that led the court and Lord Brodie in particular to infer that there was no honest purpose for the prorogation. One way of looking at this is that the government brought this on themselves by their behaviour.
Did that lead the Court astray and result in them going too far? That’s for the SC to determine.
Good points - and even if the Scottish court did venture too far in its reasoning (and I’m not wholly convinced that it did), it has done us a great service by forcing the Supreme Court to make very clear what the law is, and what latitude unscrupulous governments might have to abuse prerogative powers.
Interesting header - but - and I hesitate to say this given that it is the estimable @david_herdson - a little confused.
The courts have been interfering in politics for a long time, ever since judicial review became a thing. This process has been accelerated by the adoption of the ECHR into domestic law. There has been some heavy weight legal criticism of this; see, for instance, Lord Sumption’s recent Reith Lectures (very well worth listening to in the light of recent events).
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Instruction. It's a useful legal fiction which enables HM the Queen to be what she is and keep above politics. Long may it last. FTPA 2(7) for example uses words carefully chosen to tip-toe around it.
I’ve been thinking about this and I’m not sure it’s a great precedent to say that the monarch has absolutely no personal leeway in decisions of this kind. If the Queen can’t refuse advice, it means that the entire royal prerogative is essentially a tool for the Prime Minister with no countervailing check on that power, since his advice to the Queen is, in essence, an instruction.
Genuine question, in what other countries (without executive presidents) does the head of government have such untrammelled personal power? It seems to me that almost every sensible democracy without an executive president has some sort of ‘referee’ overseeing the system (whether a monarch, a Governor General or a President) who has a degree of leeway in a constitutional crisis to exercise their own judgement, as a counterbalance to the executive.
If the SC is going to find that the Queen is merely a puppet for the Prime Minister, perhaps we ought to think about having a Governor General, who can take the flak if needed and be a constitutional counterweight to the PM.
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.
I’d agree with this. Sadly, Brexit also makes the likelihood of any such convention happening quite low, I think.
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.
I'm sure that was an opinion you shared loudly whilst serving in H.M. Armed Forces......
Wide eyed worship of the monarch in the forces isn't absolute. I have it on pretty good authority that after one Royal vist to an RN ship, a royal turd was plucked from the scuppers and preserved in a bottle (geddit!), to be displayed on special occasions.
I met somebody who claims to have seen her have a piss via an artfully concealed hole in the wall at RAF Northolt. Pre smartphone era unfortunately.
It's evenly balanced whether it is most unimpressive that this happened (if it did), that he shared the fact with you or that you shared it with us.
One part of David’s well reasoned header I’d take issue with is this: It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold...
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
Your point might have some merit if the parties so outraged by the prorogation had
1. prior to the announcement of the prorogation, argued the point that Brexit was so important a topic, they needed to cancel their Conference this year, or 2. following the announcement, actually cancelled their conference.
Neither happened. The point is this: beyond Brexit, nothing is happeneing. There is no legislative programme, MPs were on part-time working. And until the EU Summit, there is nothing to talk about on Brexit. MPs are just bumping their gums. They might as well do that at Conerence, where they can spout their faux outrage to the equally faux outraged.
My very first case as a junior solicitor in private practice was the International Tin Council litigation which went then to the House of Lords. One of the issues there was justiciability - though in relation to international treaties. Very many happy hours were spent in the Court of Appeal and Lords hearing the arguments on this. I never thought to hear the same arguments again but in the context of the British Parliament.
Interesting header - but - and I hesitate to say this given that it is the estimable @david_herdson - a little confused.
The courts have been interfering in politics for a long time, ever since judicial review became a thing. This process has been accelerated by the adoption of the ECHR into domestic law. There has been some heavy weight legal criticism of this; see, for instance, Lord Sumption’s recent Reith Lectures (very well worth listening to in the light of recent events).
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Did David not also arrive at your 1) and 2) ? The ‘politics’ issue is a confusing one, as it is something the courts in this case have talked about themselves. And they are very clear indeed that they do not wish to get involved in decisions which are purely a matter of politics. What is and isn’t a matter of pure politics is not, of course, defined.
Can someone tecchie please explain why as Brit abroad using a Uk mobile why its so impossible to watch the mini in play highlights of the cricket. Its absolutely ludicrous banning its own citizens from watching BBC acquired content... trying to.listen to TMS highlights is equally difficut to find and watch... the sooner the BBC licence goes the better then we can pay to watch/ listen or not as the case may be...
If you could several million Brits living abroad would get to use I-Player, etc for free and the Beeb don't like that idea. Can be got round if you have a VPN
As I have time on my hands I thought I’d look at previous case law cited in the Scottish Court decision and also previous opinion and writings of the SC judges to see how much sympathy they might have for that ruling .
I won’t be naming names but two of those judges so far are likely to be sympathetic to that decision .
That’s not to say they will uphold it . I still have another 9 judges to go so will see where that goes .
Interesting header - but - and I hesitate to say this given that it is the estimable @david_herdson - a little confused.
The courts have been interfering in politics for a long time, ever since judicial review became a thing. This process has been accelerated by the adoption of the ECHR into domestic law. There has been some heavy weight legal criticism of this; see, for instance, Lord Sumption’s recent Reith Lectures (very well worth listening to in the light of recent events).
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Great post . Many thanks . Your second to last paragraph is highlighted in the case of Magill v Porter 2002 . Paragraph 144 of the full opinion goes to the heart of the matter .
One part of David’s well reasoned header I’d take issue with is this: It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold...
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
Your point might have some merit if the parties so outraged by the prorogation had
1. prior to the announcement of the prorogation, argued the point that Brexit was so important a topic, they needed to cancel their Conference this year, or 2. following the announcement, actually cancelled their conference.
Neither happened. The point is this: beyond Brexit, nothing is happeneing. There is no legislative programme, MPs were on part-time working. And until the EU Summit, there is nothing to talk about on Brexit. MPs are just bumping their gums. They might as well do that at Conerence, where they can spout their faux outrage to the equally faux outraged.
You are correct in saying that the current government does not have a legislative program. You might also have noticed that there is a majority in Parliament not commanded by the government. Conferences don’t have to be cancelled for Parliament to sit - and I’d note the Tories already have contingency plans for reducing theirs to a single day (though that was for the possibility of a snap election).
Interesting header - but - and I hesitate to say this given that it is the estimable @david_herdson - a little confused.
The courts have been interfering in politics for a long time, ever since judicial review became a thing. This process has been accelerated by the adoption of the ECHR into domestic law. There has been some heavy weight legal criticism of this; see, for instance, Lord Sumption’s recent Reith Lectures (very well worth listening to in the light of recent events).
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Did David not also arrive at your 1) and 2) ? The ‘politics’ issue is a confusing one, as it is something the courts in this case have talked about themselves. And they are very clear indeed that they do not wish to get involved in decisions which are purely a matter of politics. What is and isn’t a matter of pure politics is not, of course, defined.
The way I read the header was that David thinks the reasons for the decision are irrelevant. I am more inclined towards CF's assertion that looking at the reason(s) behind an action is a very ordinary part of the judicial process. To make an exemption in this case would need to have some special justification, which is not provided in the header. Nor can I imagine one.
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Did David not also arrive at your 1) and 2) ? The ‘politics’ issue is a confusing one, as it is something the courts in this case have talked about themselves. And they are very clear indeed that they do not wish to get involved in decisions which are purely a matter of politics. What is and isn’t a matter of pure politics is not, of course, defined.
I was gently criticising his approach. I don’t think it unfortunate that the courts have got involved. The boundary between politics and law is always unclear and I don’t think it a mistake to look at the intended purpose of a power, which is something courts have been doing for some time now. Also if a government wishes to have wide latitude to exercise a power we need to be able to trust that it will not use that power for an improper purpose and/or not mislead about the reason why. The government may not have helped itself in not providing an affidavit about why it was seeking such a long prorogation.
One part of David’s well reasoned header I’d take issue with is this: It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold...
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
Your point might have some merit if the parties so outraged by the prorogation had
1. prior to the announcement of the prorogation, argued the point that Brexit was so important a topic, they needed to cancel their Conference this year, or 2. following the announcement, actually cancelled their conference.
Neither happened. The point is this: beyond Brexit, nothing is happeneing. There is no legislative programme, MPs were on part-time working. And until the EU Summit, there is nothing to talk about on Brexit. MPs are just bumping their gums. They might as well do that at Conerence, where they can spout their faux outrage to the equally faux outraged.
You are correct in saying that the current government does not have a legislative program. You might also have noticed that there is a majority in Parliament not commanded by the government. Conferences don’t have to be cancelled for Parliament to sit - and I’d note the Tories already have contingency plans for reducing theirs to a single day (though that was for the possibility of a snap election).
Precisely. Prejudging the actions of others on the basis of a false proxy is pretty shaky grounds, not least if your own party is acting in a way that acknowledges multiple possibilities. Furthermore, no party had or has a majority in parliament, so even if an entire party was united in a single course of action, the will of parliament could be otherwise. Each party can stand united and in a minority. Given that, a party cancelling its conference outright only to find parliament decided to break up for conferences anyway would look very foolish. Finally, there might be reasons in party's constitutions that mean they HAVE to hold a conference, so cancelling might not be an option anyway, even if MPs might have to miss the bulk of it.
The key point here is that Johnson's government literally has no workable Brexit policy. Other parties' policies might not be what we want. But at least they are actionable.
Interesting header - but - and I hesitate to say this given that it is the estimable @david_herdson - a little confused.
There are two issues to be determined: (1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all. (2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Did David not also arrive at your 1) and 2) ? The ‘politics’ issue is a confusing one, as it is something the courts in this case have talked about themselves. And they are very clear indeed that they do not wish to get involved in decisions which are purely a matter of politics. What is and isn’t a matter of pure politics is not, of course, defined.
The way I read the header was that David thinks the reasons for the decision are irrelevant. I am more inclined towards CF's assertion that looking at the reason(s) behind an action is a very ordinary part of the judicial process. To make an exemption in this case would need to have some special justification, which is not provided in the header. Nor can I imagine one.
Fair point. (Like David, I am not a lawyer.)
But the boundary between the ‘politics’ courts will interfere in, and the ‘politics’ they will not touch with a barge pole does seem ill defined.
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
To those using concerns about drug availability as prop for their anti-Brexit views you can sleep easy knowing that of all the mitigations for no-deal pharmaceuticals is one of the most comprehensive.
The government will be fully aware that remainers will have shrouds neatly pressed just waiting for the opportunity to wave them furiously.
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.
The point is, that would be unlawful because 1689 stated parliament had to have a session every year.
Admittedly, sesssions can be very short in the hands of unscrupulous managers. In Weimar's dog days from 1930-32 I think their sessions lasted for about two weeks on average. But the general convention is that parliament sits at least three months in every year since that time.
Admittedly, there again we go back to convention. This is a flaw that needs sorting, but I want politicians to do it not judges.
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
Which would be a reasonable point as long as we could be sure the ferries will not be delayed unloading on the other side and therefore operate more slowly...
Dodgy bar chart time! Would vote for him if he had a chance. However, the Tories got 39% here even in '97. That is the problem. Also, we haven't seen any LD activity for years. Labour at least has had a ground game and some visibility, having stalls in villages and at the County Show, etc. every weekend. They also have a core vote in mining areas. Tory hold yet again, barring extraordinary collapse
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
Which would be a reasonable point as long as we could be sure the ferries will not be delayed unloading on the other side and therefore operate more slowly...
He also mentioned that the ferry companies wouldn’t board anyone who didn’t have the right paperwork. Bit like airlines currently.
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
Which would be a reasonable point as long as we could be sure the ferries will not be delayed unloading on the other side and therefore operate more slowly...
He also mentioned that the ferry companies wouldn’t board anyone who didn’t have the right paperwork. Bit like airlines currently.
It depends on what procedures the French put in place to check them.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
While your comment makes sense to me it's worth noting that most people who deal with this stuff on a daily basis, and presumably know what they are talking about, do actually expect general delays going from France to England
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
That's like saying someone can't die from heart congestion because they still have plenty of blood. It's both true and completely besides the point. This is all about flows, not supply quantities. No Deal Brexit would create profound transport problems, which will affect supplies reaching demand. And, of course, in anticipation of a break in supply, people will try to stockpile so /they/ don't miss out.
EDIT I really didn't read your comment properly so I was replying to something that was on my mind rather than what you wrote.
Instruction. It's a useful legal fiction which enables HM the Queen to be what she is and keep above politics. Long may it last. FTPA 2(7) for example uses words carefully chosen to tip-toe around it.
I’ve been thinking about this and I’m not sure it’s a great precedent to say that the monarch has absolutely no personal leeway in decisions of this kind. If the Queen can’t refuse advice, it means that the entire royal prerogative is essentially a tool for the Prime Minister with no countervailing check on that power, since his advice to the Queen is, in essence, an instruction.
Genuine question, in what other countries (without executive presidents) does the head of government have such untrammelled personal power? It seems to me that almost every sensible democracy without an executive president has some sort of ‘referee’ overseeing the system (whether a monarch, a Governor General or a President) who has a degree of leeway in a constitutional crisis to exercise their own judgement, as a counterbalance to the executive.
If the SC is going to find that the Queen is merely a puppet for the Prime Minister, perhaps we ought to think about having a Governor General, who can take the flak if needed and be a constitutional counterweight to the PM.
One or two powers need to be kept for real emergencies - like keeping tyranny, dictatorship or the despotic state at bay. One is the independent use of the Royal prerogative to refuse to sign, let us say, the 'Politicians, Indemnity for Arbitrary Murder Bill', and other is the thought that the SC could overturn otherwise properly passed legislation such as the 'Legalisation of Torturing Children for Fun Bill'. Armies exist partly for the same purpose. We are fortunate indeed that we are so off even taking such thoughts seriously, and haven't much since 1688. The resolute bloody minded independence of the legal profession can be annoying but we need it.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
Ah, thank you: I think we are at cross purposes. As I understand the discussions on PB over the last few days, at the moment it IS illegal in Scotland. But that is pending appeal to the Supreme Court of the UK. If the SCUK decides that that interpretation of Scots law is wrong then the disparity vanishes for practical purposes. If the SCUK decides otherwise then the disparity stands and is interpreted as striking down the entire measure, as it is impossible to have an UK wide measure that is illegal in Scotland whether or not it is legal elsewhere.
Note that those issues operate, so to speak, at a transnational level, at the level of the UK state.
There is no suggestion that Scots law overrides E&W (or NI) law in their respective jurisdictions, or vice versa, which is what you are concerned about, if I understand you correctly. Indeed the equal status of the three legal systems seems to have been quite a shock to some people.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
Ah, thank you: I think we are at cross purposes. As I understand the discussions on PB over the last few days, at the moment it IS illegal in Scotland. But that is pending appeal to the Supreme Court of the UK. If the SCUK decides that that interpretation of Scots law is wrong then the disparity vanishes for practical purposes. If the SCUK decides otherwise then the disparity stands and is interpreted as striking down the entire measure, as it is impossible to have an UK wide measure that is illegal in Scotland whether or not it is legal elsewhere.
Note that those issues operate, so to speak, at a transnational level, at the level of the UK state.
There is no suggestion that Scots law overrides E&W (or NI) law in their respective jurisdictions, or vice versa, which is what you are concerned about, if I understand you correctly. Indeed the equal status of the three legal systems seems to have been quite a shock to some people.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
I don't think it works that way. If the different judgments are based on the difference between English and Scots law (I'm not clear that is the case, but let's go with it), you can have a single action that is legal in one place and illegal elsewhere. If that action can only be applied UK wide or not at all, it is illegal to apply it. That is not a contradiction of law, it's more a consequence of being unable to make your action apply to only those jurisdictions where it's legal.
One part of David’s well reasoned header I’d take issue with is this: It’s surely stretching a point to suggest that the few extra sitting days lost, once the conference recess is allowed for, crosses a constitutional threshold...
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
In addition, committees including select committees continue during recess, but not prorogation.
The Queen can’t refuse to act on the advice of her government .
Completely incorrect.
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
If HMG has a large majority and HMQ refuses to act on its advice, then we move pretty rapidly to another abdication, if not a Republic.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
The Scottish Court was at pains to say that their decision didn’t rest on any particular difference between Scottish law and English law .
Legally speaking that court is higher in pecking order than the English Court . The prorogation was never tested in the Court of Appeal in London which would be the equivalent court to that in Scotland .
The Scottish Court is the Premier League , the high court the Championship .
The fact it was a unanimous decision is also noteworthy , all the other courts have just had one judge .
I personally find the arguments against the case being justiciable suspect . That would mean a government could effectively prorogue parliament whenever it wanted for months at a time . And there would be no recourse to the law .
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
I don't think it works that way. If the different judgments are based on the difference between English and Scots law (I'm not clear that is the case, but let's go with it), you can have a single action that is legal in one place and illegal elsewhere. If that action can only be applied UK wide or not at all, it is illegal to apply it. That is not a contradiction of law, it's more a consequence of being unable to make your action apply to only those jurisdictions where it's legal.
The Scots case was clear that it was not utilising Scottish law to differentiate its opinion.
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.
The point is, that would be unlawful because 1689 stated parliament had to have a session every year.
Admittedly, sesssions can be very short in the hands of unscrupulous managers. In Weimar's dog days from 1930-32 I think their sessions lasted for about two weeks on average. But the general convention is that parliament sits at least three months in every year since that time.
Admittedly, there again we go back to convention. This is a flaw that needs sorting, but I want politicians to do it not judges.
The key point here is that Johnson's government literally has no workable Brexit policy. Other parties' policies might not be what we want. But at least they are actionable.
That would seem to suggest the union is more important to the Lib Dems than the EU. Would be interesting to see whether there are unintended consequences of that, such as Lib Dems who are much keener on Europe and more ambivalent about the union breaking towards SNP instead of Tory. There might even be some Tories under that banner too, that would have broken towards the Lib Dems but might be forced to the SNP if the Lib Dems stand down. Detailed polling needed I think.
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.
It's already sorted. If it is illegal in Scotland it is illegal in the UK full stop. (as with the other jurisdictions).
Nice try. However the thought leaves just a tiny unresolved point......
Like what, please? It's not a 'try' on my part - it's basic fact.
The situation now is that an English court has said prorogation is lawful, a Scottish court has said it isn't. Neither court can bind the other. So to say "if it is illegal in Scotland it is illegal in the UK full stop" is to ignore the fact that an English court has said the opposite. So you could say instead "if it is legal in England it is illegal in the UK full stop". Which on the facts as they currently are entails a contradiction. Only the SC can sort it out as only the SC has jurisdiction over the UK courts as a whole.
I don't think it works that way. If the different judgments are based on the difference between English and Scots law (I'm not clear that is the case, but let's go with it), you can have a single action that is legal in one place and illegal elsewhere. If that action can only be applied UK wide or not at all, it is illegal to apply it. That is not a contradiction of law, it's more a consequence of being unable to make your action apply to only those jurisdictions where it's legal.
The Scots case was clear that it was not utilising Scottish law to differentiate its opinion.
The key point here is that Johnson's government literally has no workable Brexit policy. Other parties' policies might not be what we want. But at least they are actionable.
But Benn has shown that Parliament can whizz legislation through Parliament.....
That was a short Bill .
The WAIB is going to be huge and needs proper scrutiny and debate . This is desperation from Johnson . I doubt the public are going to riot if a deal is passed and it needs an extra month to go through .
He’s obsessed with the 31st October . I also doubt the BP are going to clean up if the UK is definitely going to leave but the legislation needs a few more weeks .
Although with or without viagra matters are now coming to a head.
But possibly not - since if we do not agree to withdraw (either abruptly and messily or very gradually over a prolonged period) we might well be forcibly ejected.
Loads of panic-stricken sixty-something men seeing Sildenafil is on the list.
I have a life threatening condition which is kept at bay by some expensive medication. I am scared shitlrss of not having it.
While you’re understandably concerned the report would carry more credibility if one of the drugs mentioned wasn’t a globally available generic. Did you hear Iain Dale’s interview with a chap who said he used to run customs at Dover? He said there would be no delays to inbound traffic as the newly required paperwork for importers would have to be filed within 6 months of import. And that’s it. Stuff going out will be in the hands of the French, so he commented that while there might be shortages of Cheddar in Carrefour there would be plenty of Brie in Tesco.
While your comment makes sense to me it's worth noting that most people who deal with this stuff on a daily basis, and presumably know what they are talking about, do actually expect general delays going from France to England
Even if Dale's chap is correct, the effect would be the same after a couple of days because there will be an overall loss of capacity whichever side of the Channel the lorries queue at.
That would seem to suggest the union is more important to the Lib Dems than the EU. Would be interesting to see whether there are unintended consequences of that, such as Lib Dems who are much keener on Europe and more ambivalent about the union breaking towards SNP instead of Tory. There might even be some Tories under that banner too, that would have broken towards the Lib Dems but might be forced to the SNP if the Lib Dems stand down. Detailed polling needed I think.
One obvious potential problem is any clash with London HQ - esp as the mass media tend to emphasise the London message rather than the local party message - the Labour Party in Scotland has fallen foul of that in recent months.
Another is that the LDs may feel they have more to lose than gain from an alliance with the Tories - I should think there is a prima facie market for a pro-union, pro-remain party in Scotland.
Indeed the coalition with the Tories damaged the LDs very badly in Scotland and Ms Swinson has plenty of history from that episode that could be deployed against her if there was a suggestion of an alliance with the Tories.
I would be interested to know more about the legality of such things. It depends how up front the parties are. A formal coupon Unionist alliance is one thing, but quietly dialling down campaigning in specific seats is another. The situation in Aberdeen City Council gives a third possibility - deny up front, but enjoy the benefits de facto.
Although with or without viagra matters are now coming to a head.
But possibly not - since if we do not agree to withdraw (either abruptly and messily or very gradually over a prolonged period) we might well be forcibly ejected.
The key point here is that Johnson's government literally has no workable Brexit policy. Other parties' policies might not be what we want. But at least they are actionable.
But Benn has shown that Parliament can whizz legislation through Parliament.....
That was a short Bill .
The WAIB is going to be huge and needs proper scrutiny and debate . This is desperation from Johnson . I doubt the public are going to riot if a deal is passed and it needs an extra month to go through .
He’s obsessed with the 31st October . I also doubt the BP are going to clean up if the UK is definitely going to leave but the legislation needs a few more weeks .
Yes, since the prorogation has happened, and there is the Queens Speech too (couldn't that have waited until November?) Parliamentary time is to short for any "revised" Deal. Hence we either extend, or No Deal Brexit.
Interesting that taking No Deal off the table seems to have accelerated rather than retarded efforts at negotiations. Only 5 of BoZos 30 days left by my count...
Comments
Whilst the Sovereign normally acts on the advice of the government the monarch retains extensive reserve and personal prerogative powers. in 2003 the Blair government issued an extensive list of such powers although as it indicated at the time it was not the complete list.
The clue is of course in the title. It is the Royal Prerogative not the Government Prerogative.
But things have moved on even from there. Without being in an election campaign does Boris even need this? What he needs is a shorter suspension to be seen to be actively preparing brexit, special deal with EU on medicine for example to shut the anti no deal crowd up completely on medicine. There has to be a pile of brexit legislation taking us down the road to brexit this remainer parliament just couldn’t vote down, and what shores PM up right now is doing just that, getting that through Parliament.
Think how every other occupant of No 10 would respond to that.
Now think about the present lot.
The issue the SC is going to have to decide is whether it may even look into the process of prorogation, and if it can, then what tests it may apply.
It’s fairly clear that the government lied - one can argue about that, but as far as the particular legal issue is concerned, that is irrelevant.
Courts will simply not get involved in decisions they class as political; they do not concern themselves with lies told in the course of political conduct.
Yes a bit like Pol Pot taking a potshot at Stalin.....
On other matters have you any idea why Downton changed director from Brian Percival just days before shooting started? Very disappointing.
https://www.bbc.co.uk/news/world-middle-east-49699429
Plenty about Bond though! Not a happy shoot....
Twat.
If the Supreme Court can’t find reason from constitutional first principles on the grounds of parliamentary sovereignty to enquire at all into the exercise of the prorogation prerogative, then our unwritten constitution is toothless, and we need a written one.
It misses the point that the recess had not been voted on, and in the circumstances might well have been voted down. Prorogation undoubtedly frustrated the ability of Parliament to do so, so we are talking about a period of weeks, not days.
Firstly, the Scottish judgment does not proceed on some peculiarly of Scots law except in one important respect which is process driven rather than principle. The Scottish case started well before the High Court. The petition was lodged as were answers. In those answers the government set out their position. Amongst other points the government pled the case was premature because it was entirely hypothetical. What the documents showed was that this was dishonest. In fact the prorogation was already planned.
This was then aggravated when the Crown opposed an interim order on the Thursday partly on this basis. The interim order was refused and then the order itself was issued on the Monday. To put it politely the Scottish Court was seriously underwhelmed by this. There is a duty of candour on public bodies facing judicial review proceedings and the government was not candid (for the avoidance of doubt I am sure counsel made their representations in good faith and on instruction). It was this dishonesty that led the court and Lord Brodie in particular to infer that there was no honest purpose for the prorogation. One way of looking at this is that the government brought this on themselves by their behaviour.
Did that lead the Court astray and result in them going too far? That’s for the SC to determine.
https://bestvaluevpn.com/comparison-chart/bbc-iplayer/?utm_campaign=ggls-en&gclid=Cj0KCQjwn_LrBRD4ARIsAFEQFKvhR6c-ANkmfw_ArMHw_TaMOrJvneO2jj-xs5RkOoIpbJ36-5lUaYAaAr16EALw_wcB
Drone usage will only increase, in both civil and military areas, I think.
The courts have been interfering in politics for a long time, ever since judicial review became a thing. This process has been accelerated by the adoption of the ECHR into domestic law. There has been some heavy weight legal criticism of this; see, for instance, Lord Sumption’s recent Reith Lectures (very well worth listening to in the light of recent events).
There are two issues to be determined:
(1) Is the power to prorogue a matter which is justiciable? If not, the question of why it has been used simply does not arise. If the SC rules that the matter is non-justiciable it is not saying that what Johnson has done is lawful it is simply saying that this is not a matter for the courts at all.
(2) If it is justiciable, what are the limits on that power and how should a challenge be assessed. That is a much more interesting question.
I would hope that the court would rule that the power to prorogue is a justiciable matter and then set out the basis on which such a power could be scrutinised by the courts. I do so because I don’t think that in this day and age there should be a power which can be exercised without any sort of scrutiny or challenge at all. If it is not to be the courts it has to be Parliament. But if Parliament is not there then clearly the courts need to get involved.
The issue then is how is that decision assessed. From its stated purpose? From this but with supporting evidence?
The courts do look at the reasons why a public authority did something in judicial reviews. So it is not a stretch for them to do the same in the case of a review of a government’s decision to prorogue the only political body available to scrutinise the government.
I expect the SC to rule that the government’s power is justiciable but to say that there must be a very high bar before a government’s decision will be overturned ie in this case that bar was not met. But I would not be that surprised if it ruled that it had been met in this case.
Genuine question, in what other countries (without executive presidents) does the head of government have such untrammelled personal power? It seems to me that almost every sensible democracy without an executive president has some sort of ‘referee’ overseeing the system (whether a monarch, a Governor General or a President) who has a degree of leeway in a constitutional crisis to exercise their own judgement, as a counterbalance to the executive.
If the SC is going to find that the Queen is merely a puppet for the Prime Minister, perhaps we ought to think about having a Governor General, who can take the flak if needed and be a constitutional counterweight to the PM.
1. prior to the announcement of the prorogation, argued the point that Brexit was so important a topic, they needed to cancel their Conference this year, or
2. following the announcement, actually cancelled their conference.
Neither happened. The point is this: beyond Brexit, nothing is happeneing. There is no legislative programme, MPs were on part-time working. And until the EU Summit, there is nothing to talk about on Brexit. MPs are just bumping their gums. They might as well do that at Conerence, where they can spout their faux outrage to the equally faux outraged.
The ‘politics’ issue is a confusing one, as it is something the courts in this case have talked about themselves. And they are very clear indeed that they do not wish to get involved in decisions which are purely a matter of politics. What is and isn’t a matter of pure politics is not, of course, defined.
https://twitter.com/hexham_libdems/status/1172775638148747265?s=21
I won’t be naming names but two of those judges so far are likely to be sympathetic to that decision .
That’s not to say they will uphold it . I still have another 9 judges to go so will see where that goes .
Conferences don’t have to be cancelled for Parliament to sit - and I’d note the Tories already have contingency plans for reducing theirs to a single day (though that was for the possibility of a snap election).
Furthermore, no party had or has a majority in parliament, so even if an entire party was united in a single course of action, the will of parliament could be otherwise. Each party can stand united and in a minority. Given that, a party cancelling its conference outright only to find parliament decided to break up for conferences anyway would look very foolish.
Finally, there might be reasons in party's constitutions that mean they HAVE to hold a conference, so cancelling might not be an option anyway, even if MPs might have to miss the bulk of it.
https://twitter.com/HeleneBismarck/status/1172805102228377601
(Like David, I am not a lawyer.)
But the boundary between the ‘politics’ courts will interfere in, and the ‘politics’ they will not touch with a barge pole does seem ill defined.
The government will be fully aware that remainers will have shrouds neatly pressed just waiting for the opportunity to wave them furiously.
Admittedly, sesssions can be very short in the hands of unscrupulous managers. In Weimar's dog days from 1930-32 I think their sessions lasted for about two weeks on average. But the general convention is that parliament sits at least three months in every year since that time.
Admittedly, there again we go back to convention. This is a flaw that needs sorting, but I want politicians to do it not judges.
Great. Thanks a lot, Brexiters.
Tory hold yet again, barring extraordinary collapse
One is a flimsy construct of knaves and jokers that collapses at the first touch or breath of air.
The other is made of cardboard.
So Australia will for the first time on this tour have a competent batsman facing the new ball.
Edit - as you were, it's external so he might be able to open. Phew...
Good luck.
No Deal Brexit would create profound transport problems, which will affect supplies reaching demand. And, of course, in anticipation of a break in supply, people will try to stockpile so /they/ don't miss out.
EDIT I really didn't read your comment properly so I was replying to something that was on my mind rather than what you wrote.
Given the list that will be a hard one.
And he's an annoying sort of bowler who can get on a roll. England need a good batsman to come in and go big.
Unfortunately they've got Joe Root.
Note that those issues operate, so to speak, at a transnational level, at the level of the UK state.
There is no suggestion that Scots law overrides E&W (or NI) law in their respective jurisdictions, or vice versa, which is what you are concerned about, if I understand you correctly. Indeed the equal status of the three legal systems seems to have been quite a shock to some people.
If the different judgments are based on the difference between English and Scots law (I'm not clear that is the case, but let's go with it), you can have a single action that is legal in one place and illegal elsewhere. If that action can only be applied UK wide or not at all, it is illegal to apply it. That is not a contradiction of law, it's more a consequence of being unable to make your action apply to only those jurisdictions where it's legal.
https://twitter.com/MrDanDonoghue/status/1172786107362226176?s=20
Legally speaking that court is higher in pecking order than the English Court . The prorogation was never tested in the Court of Appeal in London which would be the equivalent court to that in Scotland .
The Scottish Court is the Premier League , the high court the Championship .
The fact it was a unanimous decision is also noteworthy , all the other courts have just had one judge .
I personally find the arguments against the case being justiciable suspect . That would mean a government could effectively prorogue parliament whenever it wanted for months at a time . And there would be no recourse to the law .
Anyway, off to lunch.
Am thinking of asking Betfair this but thought I would ask here first in case people have already clarified the point -
Their market "Will a WA be passed by parliament in 2019?" - Yes or No
If a WA is passed in 2019 but subject to confirmatory referendum in 2020 - will that be settled as Yes or No?
The most problematic ones to me look to be Metformin, Prednisolone and Sodium Valproate. All are frequently prescribed and are not easily substituted.
Would be interesting to see whether there are unintended consequences of that, such as Lib Dems who are much keener on Europe and more ambivalent about the union breaking towards SNP instead of Tory. There might even be some Tories under that banner too, that would have broken towards the Lib Dems but might be forced to the SNP if the Lib Dems stand down.
Detailed polling needed I think.
The WAIB is going to be huge and needs proper scrutiny and debate . This is desperation from Johnson . I doubt the public are going to riot if a deal is passed and it needs an extra month to go through .
He’s obsessed with the 31st October . I also doubt the BP are going to clean up if the UK is definitely going to leave but the legislation needs a few more weeks .
Sorry.
I am, really.
Another is that the LDs may feel they have more to lose than gain from an alliance with the Tories - I should think there is a prima facie market for a pro-union, pro-remain party in Scotland.
Indeed the coalition with the Tories damaged the LDs very badly in Scotland and Ms Swinson has plenty of history from that episode that could be deployed against her if there was a suggestion of an alliance with the Tories.
I would be interested to know more about the legality of such things. It depends how up front the parties are. A formal coupon Unionist alliance is one thing, but quietly dialling down campaigning in specific seats is another. The situation in Aberdeen City Council gives a third possibility - deny up front, but enjoy the benefits de facto.
Interesting that taking No Deal off the table seems to have accelerated rather than retarded efforts at negotiations. Only 5 of BoZos 30 days left by my count...