The now-enacted will of (some of) the people

[Xann]

 

[cyrusr]

2 hours ago, snowychap said:

There are potential difficulties with this, though.

I don't think that we should just assume that because it happened once, it will necessarily happen again especially as there may not be quite the same opportunity as before (so they may have to manufacture one).

Possibly, but I suspect there are more of the Tories that are exceptionally anti "no deal" than support it, though I am still exceptionally concerned that they will still go along, for "the sake of the party". 

I suspect more so that we will have more constitutional guidance as to the way forward and this will not be a straight path.

[snowychap]

3 minutes ago, cyrusr said:

Possibly, but I suspect there are more of the Tories that are exceptionally anti "no deal" than support it, though I am still exceptionally concerned that they will still go along, for "the sake of the party". 

I suspect more so that we will have more constitutional guidance as to the way forward and this will not be a straight path.

The point is, though, that it may not matter how many Tories might be anti-no deal if there isn't an opportunity forthcoming for them to demonstrate this in an actual vote (other than an FTPA confidence motion).

[ml1dch]

10 minutes ago, snowychap said:

The point is, though, that it may not matter how many Tories might be anti-no deal if there isn't an opportunity forthcoming for them to demonstrate this in an actual vote (other than an FTPA confidence motion).

And even if there were, it's not then clear if there is a mechanism to force the Government to comply with the result of that vote.

[snowychap]

8 minutes ago, ml1dch said:

And even if there were, it's not then clear if there is a mechanism to force the Government to comply with the result of that vote.

It looks like we'd be in to whether or not things were justiciable and, even in that situation, that takes time.

Edited August 5, 2019 by snowychap

[cyrusr]

15 minutes ago, ml1dch said:

And even if there were, it's not then clear if there is a mechanism to force the Government to comply with the result of that vote.

 

6 minutes ago, snowychap said:

It looks like we'd be in to whether or not things were justiciable and, even in that situation, that takes time.

You will be surprised how quick the Courts will act in this scenario. If the executive is not acting in the best interests of the country and they are actively frustrating the legislature, then someone could use Judicial Review so the Courts can look at it. The courts could use its injunctive powers to stop the executive acting in such a destructive way could, would be the way forward. Given the countdown, that would be expedited and at the very least an interim decision would be made, forcing the prime minister to either call a vote on the issue, go back to the EU to seek a further extension or possibly call a GE. The interim decision will fall on the side of caution, to ensure that there is the least amount of damage. 

Exceptionally heavy handed, but it depends on how stupid Boris et al want to be. To be fair, from their point of view, they wouldn't even be the ones to blame, they would say to the supporters "well we would have done, but for these guys, it's not our fault!" It may possibly be the way forward that Boris is thinking, giving him zero culpability for everything that has happened with Brexit. 

[desensitized43]

1 minute ago, cyrusr said:

forcing the prime minister to either call a vote on the issue, go back to the EU to seek a further extension or possibly call a GE

I'd love for Boris to be ordered to go to the EU and request an extension thereby destroying his loathsome political career but I suspect he'll fight tooth and nail to resist that humiliation and even if he lost that fight he'd surely just resign rather than publicly look like a massive heel?

[cyrusr]

6 minutes ago, desensitized43 said:

I'd love for Boris to be ordered to go to the EU and request an extension thereby destroying his loathsome political career but I suspect he'll fight tooth and nail to resist that humiliation and even if he lost that fight he'd surely just resign rather than publicly look like a massive heel?

Quite possibly, but like I said, it could be his get out clause whilst remaining in power. Boris is very cunning in respect of public image and as such I anticipate he will portray it as a great injustice and follow it up with what is ever in his best interests. So long as we as a nation are secured with the decision of others, that is what I ultimately am concerned about. 

[snowychap]

1 hour ago, cyrusr said:

You will be surprised how quick the Courts will act in this scenario.

You present this as though it and what you subsequently say is absolutely certain. It isn't.

The issue arises with this demand that 'x' be stopped when 'x' is a train already in motion and simply shouting at the train is not going to stop it. You speak as though it is necessary for the executive to be prevented from acting in a particular way and that will stop an inevitable event whereas the executive would have to be compelled to act in a way in order to prevent that event from occurring or postpone it.

1 hour ago, cyrusr said:

an interim decision would be made, forcing the prime minister to either call a vote on the issue, go back to the EU to seek a further extension or possibly call a GE

By what mechanism?

Edited August 5, 2019 by snowychap

[Xann]

 

Quote

 

Boris Johnson’s pro-Brexit backer Crispin Odey has made a £300m bet against British businesses and stands to make huge profits from the woes of the UK economy.

The firm owned by the multimillionaire hedge fund tycoon, who made millions betting against the pound after the 2016 referendum, has taken out £299m in “short” positions on some of Britain’s biggest firms.

His apparent lack of confidence in flagship British groups, including Royal Mail and the shopping centre owner Intu, implies that he expects their share prices to fall as the pound continues to tumble.

According to fresh data obtained by IHS Markit and Short Tracker, Odey Asset Management has “short” positions on 16 UK listed firms — and has increased its “short” position on six of them since Theresa May announced her resignation in May. On the day Johnson was elected leader of the Tory party, Odey’s firm increased its “short” position in the high street lender Metro Bank. It currently has a £17.6m bet against the company.

Marshall Wace, co-founded by Sir Paul Marshall, who gave £100,000 to the Vote Leave campaign, has also made bets against UK firms. The firm has taken “short” positions on 47 companies worth £1.14bn, including the outsourcing giant Kier Group, the budget airline easyJet and Severn Trent.

 

The Times

Golly!

Back Brexit, bet on UK failing.

[cyrusr]

20 minutes ago, snowychap said:

You present this as though it and what you subsequently say is absolutely certain. It isn't.

The issue arises with this demand that 'x' be stopped when 'x' is a train already in motion and simply shouting at the train is not going to stop it. You speak as though it is necessary for the executive to be prevented from acting in a particular way and that will stop an inevitable event whereas the executive would have to be compelled to act in a way in order to prevent that event from ocurring or postpone it.

By what mechanism?

You are quite right it isn't certain, sadly. However, I hope that some common sense would be achieved, that may be reaching. 

In relation to mechanism, it has been many, many years since I have even looked at anything under Administration Law, but IIRC under Judicial Review powers, the Court has the power to compel public authorities to do something (either via a Mandatory Order or Mandatory Injunction). An interim injunction could be applied for whilst the full decision is being made. 

In relation to which legislation that has been been breached or acting without due consideration, however you want to phrase it, s.13 European Union (Withdrawal) Act 2018 provides for the procedure in Parliament to be followed. True, it still refers to original exit date and 21 January 2019 etc; however interpretation would be of intention. It also provides for a motion on the proposals that the government would have. In this scenario, the motion would be "no deal" and thus they have to bring the motion to Parliament. If not, the government would be in direct conflict with the legislation and this would be your "Mandatory Order/Injunction". 

The legislation also refers to Part 2 of the Constitutional Reform and Governance Act 2010 (ratification of treaties) which requires the government to pass through parliament majority of treaties etc. 

So, the bottom line would be, if the government doesn't bring the motion, which it might not, it can be forced upon them. They would need to bring some form of agreement or proposal.

Sadly I cannot see from the quick glance what would happen if they cannot agree, and so we may remain in the same situation. The legislation does not account for this (presume that they thought it would be all sorted...). That is where the argument may come unstuck. 

Alternatively, you could possibly argue that even a "no deal" agreement is still technically an agreement, but that is somewhat benign. You also might need to rely upon the other choices such as relying upon "Irrationality" and suggest that the decision of no deal is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." That could be argued, but again is some what more of a gamble... 

I suspect it will become messier before October anyway, that is for sure! 

[bickster]

2 minutes ago, cyrusr said:

common sense

C'mon you can't be serious 

[cyrusr]

2 minutes ago, bickster said:

C'mon you can't be serious 

Well, true. I am somewhat of an optimist on this point...!

[snowychap]

48 minutes ago, cyrusr said:

You are quite right it isn't certain, sadly. However, I hope that some common sense would be achieved, that may be reaching. 

In relation to mechanism, it has been many, many years since I have even looked at anything under Administration Law, but IIRC under Judicial Review powers, the Court has the power to compel public authorities to do something (either via a Mandatory Order or Mandatory Injunction). An interim injunction could be applied for whilst the full decision is being made. 

In relation to which legislation that has been been breached or acting without due consideration, however you want to phrase it, s.13 European Union (Withdrawal) Act 2018 provides for the procedure in Parliament to be followed. True, it still refers to original exit date and 21 January 2019 etc; however interpretation would be of intention. It also provides for a motion on the proposals that the government would have. In this scenario, the motion would be "no deal" and thus they have to bring the motion to Parliament. If not, the government would be in direct conflict with the legislation and this would be your "Mandatory Order/Injunction". 

The legislation also refers to Part 2 of the Constitutional Reform and Governance Act 2010 (ratification of treaties) which requires the government to pass through parliament majority of treaties etc. 

So, the bottom line would be, if the government doesn't bring the motion, which it might not, it can be forced upon them. They would need to bring some form of agreement or proposal.

Sadly I cannot see from the quick glance what would happen if they cannot agree, and so we may remain in the same situation. The legislation does not account for this (presume that they thought it would be all sorted...). That is where the argument may come unstuck. 

Alternatively, you could possibly argue that even a "no deal" agreement is still technically an agreement, but that is somewhat benign. You also might need to rely upon the other choices such as relying upon "Irrationality" and suggest that the decision of no deal is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." That could be argued, but again is some what more of a gamble... 

I suspect it will become messier before October anyway, that is for sure! 

I'm just off out so haven't time to thoroughly scrutinize what you've written but at a glance you appear to be referring back to S.13 under which the meaningful votes were held. As far as I'm aware, and I think I've read relevant authorities (whether that's the Institute of Gov. or someone else) confirm this, as the votes have already been held, the government has satisfied the requirement to hold them - I'll try and find the article(s) to which I refer later.

Again, your reference to ratification of treaties surely only works if there is something to be ratified? If the course is to leave without a withdrawal agreement (i.e. a treaty) then no such ratification is required, surely?

I've also read an article* earlier that salked about section 2(7) powers within the FTPA (that provides for the PM to be the person who chooses polling day under that Act) being open to Judicial Review but again - when does that happen and what is the mechanism by which one would address a deemed breach? Would a court demand that the day already proclaimed by the Queen as election day be changed?

It's really messy stuff and it still comes back to how do these things get demanded of an executive that, if we've got to this position, has already proved itself not to playing ball?

In the end, we have to repeat to ourselves over and over again that the default is that we leave without 'a deal' on 31st October unless some action takes place that prevents this (revocation of A50, a request for an extension that is granted by the EU or somehow deciding upon a withdrawal agreement). Timescales as well as this default position are of the utmost importance. Perhaps a court could demand as a result of a judicial review that the Government return to Parliament to do something or that they 'listen to Parliament' or that they postpone, what happens if the executive decides to ignore that? It returns to court and what action then takes place while, all the time, the clock is ticking?

 

*blog available here: Is it too late to stop a no deal Brexit?

Quote

And fourthly the Prime Minister is subject to judicial review in exercising the section 2(7) power.

 

[cyrusr]

48 minutes ago, snowychap said:

I'm just off out so haven't time to thoroughly scrutinize what you've written but at a glance you appear to be referring back to S.13 under which the meaningful votes were held. As far as I'm aware, and I think I've read relevant authorities (whether that's the Institute of Gov. or someone else) confirm this, as the votes have already been held, the government has satisfied the requirement to hold them - I'll try and find the article(s) to which I refer later.

Again, your reference to ratification of treaties surely only works if there is something to be ratified? If the course is to leave without a withdrawal agreement (i.e. a treaty) then no such ratification is required, surely?

I've also read an article* earlier that salked about section 2(7) powers within the FTPA (that provides for the PM to be the person who chooses polling day under that Act) being open to Judicial Review but again - when does that happen and what is the mechanism by which one would address a deemed breach? Would a court demand that the day already proclaimed by the Queen as election day be changed?

It's really messy stuff and it still comes back to how do these things get demanded of an executive that, if we've got to this position, has already proved itself not to playing ball?

In the end, we have to repeat to ourselves over and over again that the default is that we leave without 'a deal' on 31st October unless some action takes place that prevents this (revocation of A50, a request for an extension that is granted by the EU or somehow deciding upon a withdrawal agreement). Timescales as well as this default position are of the utmost importance. Perhaps a court could demand as a result of a judicial review that the Government return to Parliament to do something or that they 'listen to Parliament' or that they postpone, what happens if the executive decides to ignore that? It returns to court and what action then takes place while, all the time, the clock is ticking?

 

*blog available here: Is it too late to stop a no deal Brexit?

 

I think you've got the point to be honest. I think there is a possible way, but I think the bit I have highlighted in your post pretty much sums it up. It does require some action, but it really frustrates me that the mantra from the press is "it cannot be stopped now", when actually there are methods to do so, its just sheer incompetence of politicians/in their own interests not to do something about it. 

Oh but the ultimate action would be to lock the government up for contempt of court, which would be quite funny. Boris could share a cell with Stephen Yaxley-Lennon... 

[snowychap]

1 hour ago, cyrusr said:

I think you've got the point to be honest. I think there is a possible way, but I think the bit I have highlighted in your post pretty much sums it up. It does require some action, but it really frustrates me that the mantra from the press is "it cannot be stopped now", when actually there are methods to do so, its just sheer incompetence of politicians/in their own interests not to do something about it. 

Oh but the ultimate action would be to lock the government up for contempt of court, which would be quite funny. Boris could share a cell with Stephen Yaxley-Lennon... 

To be fair, I think I had the point before.

Those three methods highlighted are all political actions, though, and they require the kind of movement from politicians that hasn't been really forthcoming so far. Maybe it will change come next month and it hits them that there isn't a lot of parliamentary time befor the end of October. I fear it won't and people will still be talking about things getting sorted out and coming to a head after the conference season. My view is that it will be too late by then.

I think the legal processes are a bit of a distraction and, as suggested in that article (though it's only with respect to the one Act), the weakest method by which one may try to prevent a 'no deal' Brexit on Oct 31st.

Edited August 5, 2019 by snowychap

[cyrusr]

1 hour ago, snowychap said:

To be fair, I think I had the point before.

Those three methods highlighted are all political actions, though, and they require the kind of movement from politicians that hasn't been really forthcoming so far. Maybe it will change come next month and it hits them that there isn't a lot of parliamentary time befor the end of October. I fear it won't and people will still be talking about things getting sorted out and coming to a head after the conference season. My view is that it will be too late by then.

I think the legal processes are a bit of a distraction and, as suggested in that article (though it's only with respect to the one Act), the weakest method by which one may try to prevent a 'no deal' Brexit on Oct 31st.

Yeah the first 3 methods require a change in action from politicians, which I agree hasn’t been forthcoming. It hasn’t helped that parliament still thinks it’s ok to have a massive break when we are meandering into an absolute crisis, it doesn’t bode well. Like you say, maybe things will change but we shall see. 

In relation to the 4th option Judicial Review, it is probably the weakest right now. It’s problem is that right now it seems a very heavy handed approach to get someone to act in the way it should, and even then there remains questions as to whether it will possibly be ignored anyway. Boris has also not had an opportunity to show what he intends to do, and as such it definitely would be meddling. No judge would touch it right now (the High Court is also on recess so you would get the annoyed one that has to work over the summer and adjourn it until October anyway). 

The case becomes stronger the closer it gets to the deadline though. But what we are heading towards is a massive clash of power between the 3 branches of the state. In UK, it is always parliament that wins out, not the executive. This is what the judiciary would (hopefully) do, if necessary. However it is very risky, and not one that I would want to gamble.

[snowychap]

15 minutes ago, cyrusr said:

In UK, it is always parliament that wins out, not the executive.

I agree with most of what you say (especially the potential for a clash of power) but even if it is the case in the long term, any winning out by Parliament that doesn't happen in time would be pyrrhic.

Btw, I'm not sure that your line holds now in view of the amount and scope of secondary legislation but that's another matter.

Passing a withdrawal agreement would require the Government to present something to Parliament to pass and it's not going to do that unless the remarkable happens and Johnson drops his red line(s) and does negotiate something or the EU change their consistent position of the last 3 years.

Revocation and asking for an extension require action by the Government that Parliament (or Parliamentarians) may try to force but which the Government may well refuse (however unconstitutional that may be viewed or illegal any court may rule it) and as long as the deadline passes, it passes.

[cyrusr]

37 minutes ago, snowychap said:

as long as the deadline passes, it passes.

That is what they all seem to be counting on. I also think that they reckon the EU will blink as well. Either they are that stupid and stubborn, or they are playing the most stupid game with the entire country.

It feels like we are a damn toy for the Eton boys.

[desensitized43]

This mornings latest brexit bullshit is that if Johnson loses a vote of no confidence he'll simply ignore it and press on anyway. Apparently constitutionally that's fine.

Taking back control and all that...