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A Horse Named Stranger

UK Politics: The Malice in the Chalice held by the Pfeffel with the Piffle is the Brexit that is true.

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9 hours ago, Werthead said:

I think it's a more a case of "Fuck the DUP, they're no longer relevant." Since they aren't needed to prop up the government any more, Boris can ignore them and put something in place that might entice the rebel Tories and Labour Deal campaigners to vote for it, and so it might just scrape through.

But yes, the Stormont thing is one of several things meant to encourage the DUP to get back into government with Sinn Fein, which given that none of the issues that led to Stormont being suspended have been meaningfully addressed (in two years!) is a bit of an optimistic hope.

Yes absolutely, the easiest way out of the mess was to move to an NI-only backstop and a way in that direction was leaked by EU sources. Arlene caught wind of it and went to confront BOJO yesterday and hence the Stormont lock to not be seen as completely throwing them under the bus and get their votes. It was interesting this proposal was sounded out of Ireland non-official channels (Ahern) as well simultaneously.

This is likely the fudge that has the best chance of passing. DUP, Tory rebels and a few Labour Brexiteers push it over the line, Ireland say they are fine with it, and hence the EU go with it - everyone just wants this to be over at this point. That doesn't rule out last minute grandstanding on both sides, but at least there is some way out here.

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So PM Johnson has so far lost every meaningful vote in Parliament, has been found by a court to be a liar and can't even collapse his own government. What a record.

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Regardless of one's opinion on Johnson and Brexit, the Scottish court decision was a godawful one at the constitutional level. Prorogation is blatantly non-justiciable, and the courts need to pull their bloody heads in. 

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5 minutes ago, The Marquis de Leech said:

Regardless of one's opinion on Johnson and Brexit, the Scottish court decision was a godawful one at the constitutional level. Prorogation is blatantly non-justiciable, and the courts need to pull their bloody heads in. 

Have you read the judgment?

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This is not the full judgment; just a summary issued to the media. Bolding added later

 

 

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union (Brexit).

A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October. The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.

The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action. The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.

Edited by Which Tyler

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7 minutes ago, mormont said:

Have you read the judgment?

I have read the official summary (the actual site itself not being accessible). I still stand by my opinion - this is a blatant judicial power grab. The Executive's power of prorogation is non-justiciable - there is no legal process that the Government must follow in order to correctly prorogue Parliament, and the court going on about "stymying Parliament" is literally just them pulling an excuse out of their posterior. Seriously. It doesn't matter whether Boris wanted a prorogation because of Brexit or because the ghost of Charles I first appeared to him and started giving him orders - the courts do not look behind the curtain in assessing whether prorogation is lawful.

I sincerely hope the Supreme Court strikes this one down.

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To put it another way, this decision would be tantamount to the courts giving themselves the power to declare election dates unlawful - the dissolution and election of Parliament similarly being non-justiciable.

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2 hours ago, The Marquis de Leech said:

To put it another way, this decision would be tantamount to the courts giving themselves the power to declare election dates unlawful - the dissolution and election of Parliament similarly being non-justiciable.

Not necessarily: this seems to me to be simply a 'slippery slope' argument, which is always a weak one with court rulings, particularly where the detailed judgment isn't yet available.

They've given themselves the power to rule on prorogation only, and even then not the absolute power to do so - the judges are explicit about that. Only in certain circumstances, namely where the purpose is to frustrate a higher constitutional principle, ie the power of Parliament to hold the executive to account. 

ETA - I do agree, though, that the Supreme Court is the right venue to settle the argument finally: I don't even believe that necessarily the Court of Session judges got it right, though Lord Carloway in particular is widely respected and certainly not the type to make 'godawful', 'power grab' judgements as a rule. I can see arguments in both directions, and would want to read more about the reasons before forming an opinion. 

Edited by mormont

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42 minutes ago, mormont said:

Not necessarily: this seems to me to be simply a 'slippery slope' argument, which is always a weak one with court rulings, particularly where the detailed judgment isn't yet available.

They've given themselves the power to rule on prorogation only, and even then not the absolute power to do so - the judges are explicit about that. Only in certain circumstances, namely where the purpose is to frustrate a higher constitutional principle, ie the power of Parliament to hold the executive to account. 

Slippery Slope considerations are actually perfectly valid, given the way the precedent system works. The judiciary has always considered the powers descending from the Royal Prerogative (of which prorogation is one, and dissolution another) off-limits as far as judicial review goes - if the judges suddenly decide one day that these powers are suddenly fair game, as they have here, then an ambitious future court will inevitably use this precedent to make another power grab. In short, you end up with unrestrained judges inventing stuff right and left to suit themselves.

As far as higher constitutional principles go, the principle that the judges stick to their own bloody lane, respect precedent, and don't interfere with political Prerogative decisions, seems to count for little with this court. If Parliament objects to the prorogation, it is perfectly within its rights (once it has been recalled) to remove Johnson from office via VONC. Nothing to do with the courts.  

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Again, the full judgement not being available yet and the ruling in any case being subject to appeal, we cannot yet say whether this ruling establishes precedent in the way that you claim. Maybe we should wait to see? 

As for 'this court', are you familiar with the record of the Court of Session on constitutional rulings? 

All your language here assumes bad intent on the part of the judiciary. 'Ambitious'. 'Power grab'. 'Fair game'. 'Stick to their own bloody lane'. It seems as if you dislike the ruling and so are attacking the integrity of the court, rather than allowing for the possibility that three highly experienced and knowledgeable judges considered the arguments and evidence in much more detail than either you or I, and simply came to a different conclusion than you did. (Also a different conclusion to that reached by another experienced and knowledgeable judge, of course: and potentially different to other experienced and knowledgeable judges who will hear the appeal, who knows?)

There's no reason to assume bad faith here, is my point. 

The principle of judicial review is vital, it seems to me, and I'm unpersuaded by the argument that prorogative powers should be exempt from it. But then I've always been of the opinion that royal prorogative needs to be eliminated anyway. 

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2 hours ago, The Marquis de Leech said:

I have read the official summary (the actual site itself not being accessible). I still stand by my opinion - this is a blatant judicial power grab. The Executive's power of prorogation is non-justiciable - there is no legal process that the Government must follow in order to correctly prorogue Parliament, and the court going on about "stymying Parliament" is literally just them pulling an excuse out of their posterior. Seriously. It doesn't matter whether Boris wanted a prorogation because of Brexit or because the ghost of Charles I first appeared to him and started giving him orders - the courts do not look behind the curtain in assessing whether prorogation is lawful.

I sincerely hope the Supreme Court strikes this one down.

I would advise all those interested to read the Divisional Court judgment: https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdf

I expect the SC will dismiss this case on justiciability grounds, without entering the merits.  The government has offered a blatant pretext for its decision, and the courts will have to grapple with the fact that such pretextual decision-making is contrary to ordinary principles of administrative law.  There is an evidentiary difficulty for the SC insofar as it cannot disbelieve the government's assertions about its own motives.  But the absence of a witness statement from the Government and the Dominic Grieve motion for evidence means the SC will be very wary of going down that route. 

At the end of the day, there is no prohibition on the justiciability of the royal prerogative, but it has been long understood in British constitutional law that high political decisions such as prorogation are not justiciable. 

Edited by Gaston de Foix

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7 hours ago, The Marquis de Leech said:

Regardless of one's opinion on Johnson and Brexit, the Scottish court decision was a godawful one at the constitutional level. Prorogation is blatantly non-justiciable, and the courts need to pull their bloody heads in. 

It should be non-justiciable because all the government needed to do to stop it was send a government minister, representative or even a civil servant to provide a witness statement which simply outlined how and why the decision was made. The court would then have had no grounds to continue.

The government didn't do that though. According to some of the Westminster journos on Twitter, it sounds like the government could not find anyone willing to stick their neck out on the line by signing a witness statement and then ran out of time. This then allowed the Scottish court to assume suspicious motives (as the accused, effectively, refused to defend themselves) and make the judgement.

This was a shambolic own goal by the government, the latest in a long line. It will almost certainly be shot down in the Supreme Court on appeal, but it's a battle the government wouldn't have had to fight if they hadn't been both corrupt and utterly incompetent.

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49 minutes ago, Werthead said:

This was a shambolic own goal by the government, the latest in a long line. It will almost certainly be shot down in the Supreme Court on appeal, but it's a battle the government wouldn't have had to fight if they hadn't been both corrupt and utterly incompetent.

This.  Unless the Grieve address produces irrefutable evidence that the reasoning set out in the Nikki da Costa memo was wholly pretextual thus undermining para 51 of the Divisional Court's reasoning.  There's a great deal of similarity between this case and the census case in the US (not surprisingly, given the Trumpian disregard for the rule-of-law in both countries). 

Edited by Gaston de Foix

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1 hour ago, Werthead said:

This was a shambolic own goal by the government, the latest in a long line. It will almost certainly be shot down in the Supreme Court on appeal, but it's a battle the government wouldn't have had to fight if they hadn't been both corrupt and utterly incompetent.

 

54 minutes ago, Gaston de Foix said:

This.  Unless the Grieve address produces irrefutable evidence that the reasoning set out in the Nikki da Costa memo was wholly pretextual thus undermining para 51 of the Divisional Court's reasoning.  There's a great deal of similarity between this case and the census case in the US (not surprisingly, given the Trumpian disregard for the rule-of-law in both countries). 

 

Don't known enough law, but feel inclined to agree with you both, FWIW :) (and likely not worth much)

I do get the slippery slope argument and completely agree with that. The whole business stank and didn't look or feel right. The motive was clearly wrong.

However, isn't this a bit of a sideshow now that BoJo has already been painted into a corner?

I am not a Leaver, but at this point, I just want this s£!t over and done with. Modify the May deal with some all-Ireland thingammajiggery-pokery-bollockery with a Stormont effing lock or whatever tf and gtf out and let the economy get on with it. And yeah if there is money in the magic tree, then please more police, affordable housing, NHS funding, re-instating the worst austerity cuts. 

Just stop this bloody circus please.

/rant

Sorry :frown5:

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7 minutes ago, Ser Hedge said:

I am not a Leaver, but at this point, I just want this s£!t over and done with. Modify the May deal with some all-Ireland thingammajiggery-pokery-bollockery with a Stormont effing lock or whatever tf and gtf out and let the economy get on with it. And yeah if there is money in the magic tree, then please more police, affordable housing, NHS funding, re-instating the worst austerity cuts. 

Just stop this bloody circus please.

This is a big part of the problem. The joining of or departure from a massive multinational alliance which entwines the economies of 28 countries (some of them for over 45 years) is a mind-bogglingly complicated task that would normally take years and years of careful and mind-numbingly tedious negotiations, consultations, meetings and compromises. It's not really a process that is meant to play out in the full light of social media and 24 hour news media.

The clock for the process of us leaving the EU should have really been set at no less than 5 and possibly more realistically 10 years, but in the instant-gratification world of modern discourse, that seems to be unacceptable, not matter how necessary.

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It feels like the slippery slope argument works both ways though. If BS Johnson gets away with this, doesn't that result in a further shift of power away from Parliament and towards the PM? What is to stop any future PM from proroguing Parliament for as long as they want whenever they want to?

As for the "just get it over" line that the Brexiter media have been pushing for some while now, it is nonsense. Any hard Brexit will just be the beginning, as the UK spends the next several years trying desperately to negotiate trade deals from a position of comparative weakness (assuming BS Johnson doesn't just bend over and sign some deal dictated by the Trump government that makes the UK a US dependency).

 

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13 minutes ago, Ser Hedge said:

I am not a Leaver, but at this point, I just want this s£!t over and done with. Modify the May deal with some all-Ireland thingammajiggery-pokery-bollockery with a Stormont effing lock or whatever tf and gtf out and let the economy get on with it. And yeah if there is money in the magic tree, then please more police, affordable housing, NHS funding, re-instating the worst austerity cuts. 

Just stop this bloody circus please.

 /rant

 Sorry :frown5:

I tend to agree.  There may well now be a majority in Parliament for May's deal with a coat of paint on it.  While such a deal has been rejected three times, Labour has been deeply unprincipled in opposing her deal for political reasons alone.  The difficulty is that Pfeffel would suffer defections and friendly fire from the loonies on his right, and he's terrified of that. 

Edited by Gaston de Foix

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Johnson has 2 options, be shot in the foot or shot in the face. If he puts lipstick on the May deal and gets that passed he shoots himself in the foot because some of the hard Brexiters in his party won't like it. If he doesn't present / pass the re-heated May deal then he's shooting himself in the face by being compelled to get an extension and he's utterly failed on his one promise, which means he's pretty well done as PM. So his last ditch effort to avoid being compelled to ask for an extension is to pass the May deal. He can get the Tory rebels back by promising that all is forgiven if they pass the May deal. Of course as with the first 3 presentations of the May deal it could be the hard Brexiters that block it.

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Just now, The Anti-Targ said:

Johnson has 2 options, be shot in the foot or shot in the face. If he puts lipstick on the May deal and gets that passed he shoots himself in the foot because some of the hard Brexiters in his party won't like it. If he doesn't present / pass the re-heated May deal then he's shooting himself in the face by being compelled to get an extension and he's utterly failed on his one promise, which means he's pretty well done as PM. So his last ditch effort to avoid being compelled to ask for an extension is to pass the May deal. He can get the Tory rebels back by promising that all is forgiven if they pass the May deal. Of course as with the first 3 presentations of the May deal it could be the hard Brexiters that block it.

Both are shots to the head. 

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8 minutes ago, Chaircat Meow said:

Both are shots to the head. 

So you think he can't survive as PM with either outcome?

If the MMD (modified May Deal) passes can he continue as a minority govt, or is an election in Nov an inevitability no matter what happens in Oct?

I guess proroguing still makes sense, because if Johnson didn't prorogue he probably would have lost a VONC. It seems the MMD was always a last resort to be triggered if no deal could not be achieved. But Johnson had to be PM to pull the trigger. A VONC at the start of September wouldn't allow him to do that.

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