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

[Chindie]

The party line that this is nothing unusual is a clear and evident crock of shit.

[bickster]

From an unusual type of source... a royal correspondent 

 

 

[romavillan]

2 minutes ago, bickster said:

From an unusual type of source... a royal correspondent 

 

 

I guess that's the basis of one of Gina Miller's challenges, one was abotu the use of the word "academic" to mislead I think, which might have been to do with the possible majority. 

Running out of time massively though, even the Italians over here managed to get their shit together enough to send Salvini packing out the government. Do or die now for any opposition to succeed.

[cyrusr]

42 minutes ago, Chindie said:

This won't achieve much, if anything. Parliament will have to solve this, not a court.

Possibly, possibly not. Don't forget the last challenge she did forced May to go to parliament to approve the Article 50 trigger and the deal rather than charging through on her own. If May had been allowed to do so, we would have already left with the version that she wanted without any scrutiny. 

This Article from UK Constitutional Law refers to an argument written in the Times by the QC for Gina Miller in the previous case which sets out the possible arguments. In easy summary this states: -

Quote

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

However, the same article raises significant concerns, in particular the lack of statute around the area. It also relies heavily on the prorogation relates to the brexit issue, which the government is very clear it isn't. It also opens the judiciary to criticism of meddling and would not be attractive. Ultimately it would depend on the arguments that has been brought to the Court in relation to this decision. It also raises the very serious issue of time, given the last decision took 6 months to resolve. The article is very dry and legalise but interesting. It is also written from the perspective that it would be very attractive idea, but possibly flawed as stated. 

It may be that there are other arguments that they will use that are stronger and more convincing. Possibly testing the water and hiding their case, we don't know, but that will become clearer over the next few days/weeks. Certainly the time argument, they could argue for an interim injunction which could force Boris to act differently whilst it is going through the Courts, but even then if it goes beyond 31 October 2019, it would still be a hugely politically controversial decision. 

Even after all that, if they are successful, realistically they will only go so far as "it has to go back before parliament". It would then be down to parliament to sort it out, but that's fine, they have not had any problem to date in agreeing anything... 

[romavillan]

15 minutes ago, cyrusr said:

Certainly the time argument, they could argue for an interim injunction which could force Boris to act differently whilst it is going through the Courts,

Interesting, so they could in theory get an injunction that keeps Parliament open?

[cyrusr]

1 minute ago, romavillan said:

Interesting, so they could in theory get an injunction that keeps Parliament open?

"In theory", yes, it is a Mandatory Order that forces a government department to act in the specific way. That would be the likely remedy sought. 

However, as within the article, based on the points already raised, it would be a very unattractive option. It is also a big gap in the law, which the Courts will not be keen to fill. It could would it to say "there's a gap here - parliament needs to sort it now", but it would still be seen as meddling by many people and the Courts will be very, very cautious to say the least. 

[snowychap]

32 minutes ago, cyrusr said:

Even after all that, if they are successful, realistically they will only go so far as "it has to go back before parliament".

What would have to go back before Parliament?

In all of the talk about the various cases being brought, I haven't really seen anything concrete put forward as a remedy if the courts were to find that the advice was unlawful.*

Joanna Cherry mentioned an interim interdict but surely that's for actions to be taken? The Proclamation has been issued. Are they really suggesting an injunction to prevent the Commissioners from carrying out their required role in the Lords (to announce the actual end of the session)?

*Edit: I see your post above about a Mandatory Order but I'm wondering really what any court would either be willing to or see fit to mandate, how far their remit would actually allow them to go and just whether the Executive would feel that they needed to comply. In order to prevent the prorogation they'd surely need to require the PM to send Privy Councillors (3, I think, is the minimum necessary) to advise the Queen to issue a Proclamation rescinding yesterday's Proclamation (and perhaps dictating the terms of any future prorogation Proclamation).

Edited August 29, 2019 by snowychap

[blandy]

7 hours ago, peterms said:

what is currently being planned

You give them way too much credit, with your theory. It's said a lot that it's a sinister power grab by a slick set of ultra rich tax-dodging businessment (and women), manipulating the proles for their personal gain.

There's of course an element of some rich folk making more money, etc. but Brexity throbbers like Marc Francois, David Davies, Priti Patel, Leadsom, and the rest are almost all thick as two short planks. These are not intelligent ultra manipulators with a plan, these are efftards without a clue, but an over inflated sense of their own improtance and judgement and a complete lack of awareness of their own, very obvious limitations. It's ideological bell ends, more than crafty billionaires and multi-nationals behind this clusterpork.

[cyrusr]

15 minutes ago, snowychap said:

What would have to go back before Parliament?

In all of the talk about the various cases being brought, I haven't really seen anything concrete put forward as a remedy if the courts were to find that the advice was unlawful.

Joanna Cherry mentioned an interim interdict but surely that's for actions to be taken? The Proclamation has been issued. Are they really suggesting an injunction to prevent the Commissioners from carrying out their required role in the Lords (to announce the actual end of the session)?

The remedy is the easy bit, its the Mandatory Order to state that Boris advises the Queen not to prorogue parliament and yes, stop the Commissioners from carrying out their roles. Parliament then carries on. 

The issue is, as you have pointed out, is on what decision they pin that on. They have to determine that it was unlawful move, and in essence create a law to say that "the executive cannot ask the queen to prorogue parliament" and reinforce the sovereignty of parliament. The issue of not having a written constitution though is that, nobody really knows what to do in these situations and there is nothing that the Courts can really say "you are wrong because of this Act or that Act". It maybe that when the full arguments come out, then they may have found something, put it is pure speculation at the moment. 

[peterms]

7 minutes ago, blandy said:

You give them way too much credit, with your theory. It's said a lot that it's a sinister power grab by a slick set of ultra rich tax-dodging businessment (and women), manipulating the proles for their personal gain.

There's of course an element of some rich folk making more money, and so the rest, but Breixty throbbers like Marc Francois, David Davies, Priti Patel, Leadsom, and the rest are alomst all thick as two short planks. These are not intelligent ultra manipulators with a plan, these are efftards without a clue, but an over inflated sense of their own improtance and judgement and a complete lack of awareness of their own, very obvious limitations. It's ideological bell ends, more than crafty billionaires and multi-nationals behind this clusterpork.

Well, it's both those groups, and more.  Many tribes have united in a fragile coalition.  The resentful and indignant, who are angry that they have voted for something and think their will may not be heeded.  The narrow English nationalists, who are part of what is called a unionist party but whose actions may lead to the unification of Ireland and Scottish independence.  The embittered racists, for whom taking back control possibly means achieving some kind of perceived superiority over foreigners, perhaps by calling them names in the street, or criticising them for speaking in another language.  The people who know they are worse off than they expected to be, don't quite understand why, and are open to accepting theories that it's somehow down to the EU.  Those who actually believe that whether we choose to improve health, education, policing and so on is somehow dependent on not making contributions to the EU.  The morons you name reflect and represent those groups and more.

But there is also a group of the very rich and very powerful, who unlike the angry Brexiters will actually make material gains out of this mess.  The hedge funds, major financial backers of the tories (and ironically, the people who literally are "betting against Britain").  The media moguls.  Those who want us to become even more of a tax haven than we already are.  The disaster capitalists who will be buying up distressed assets like they did in 2008, profiting from the misery of others.

I admit I was perhaps giving them too much credit - as you know, it's one of my failings.  I shall try to be less generous to them in future.

[tonyh29]

Up in London just now walking back to Waterloo ... this is outside the cabinet office 

 

some deranged woman shouting “traitor” at everyone who walks out  , not understanding that the people were secretaries , cleaners and tea ladies 

[snowychap]

6 minutes ago, cyrusr said:

The remedy is the easy bit, its the Mandatory Order to state that Boris advises the Queen not to prorogue parliament and yes, stop the Commissioners from carrying out their roles. Parliament then carries on.

It may be an 'easy bit' to merely say it or issue an order but how to enforce it and to make sure it happens?

 

9 minutes ago, cyrusr said:

They have to determine that it was unlawful move, and in essence create a law to say that "the executive cannot ask the queen to prorogue parliament" and reinforce the sovereignty of parliament.

I'm sorry who is 'they' here? The Court?

This doesn't seem to make sense. I'm reading it as though you are saying that The Court would need to step in, create constitutional law, intrude upon Privy Council matters, deny the Executive use of a prerogative power (in favour of whom - it needs to be carried out by someone) and all of this would reinforce the sovereignty of Parliament?

If I've got that wrong then I'm sorry but if I haven't then it sounds like a huge overreach.

[cyrusr]

26 minutes ago, snowychap said:

It may be an 'easy bit' to merely say it or issue an order but how to enforce it and to make sure it happens?

Well that may be another issue entirely, but we are trying to predict how everyone will act in an unprecedented scenario, it is somewhat difficult. Whilst there are possible outcomes of fines, even possible imprisonment for contempt (far reaching I know) it depends on how strong the Courts go. The difficulty with litigation is that there are many, many variables and factors that impact on the decision and how people act. It could be that Boris goes "well I tried" and respect the decision. It could be that he goes rogue, but that is very dangerous and would acting as a dictator and he is above the law. 

26 minutes ago, snowychap said:

I'm sorry who is 'they' here? The Court?

This doesn't seem to make sense. I'm reading it as though you are saying that The Court would need to step in, create constitutional law, intrude upon Privy Council matters, deny the Executive use of a prerogative power (in favour of whom - it needs to be carried out by someone) and all of this would reinforce the sovereignty of Parliament?

If I've got that wrong then I'm sorry but if I haven't then it sounds like a huge overreach.

Yeah the Court, sorry should have made that clear. 

Ultimately, it is a possible huge overreach, which is what the article I posted earlier was saying. The Executive is subservient to parliament, it always has been, hence the need to go to parliament regarding Article 50, the deal etc. If there is a gap in the law, the Courts gives interpretation.

All of the actions that you have said are Executive Powers, the question for the Court is whether they were right in acting in that way or not. If it ends up being a power argument between executive and parliament, parliament will win. 

However, with the argument getting increasingly heated and the lack of any physical law, then the Courts are likely less to want to be involved. The will also likely get into a position of considering policy, which it certainly is not keen on in anyway, shape or form. The Courts are meant to be neutral in this regard.  

So yeah, its quite an overreach, but not in the way that you say. The Court is being asked to meddle in something it probably would rather not. It is going to be asked questions where there are no laws and make a very politically charged decision that will be unpopular with a lot of people either way. If the decision could be avoid, then they will be happy. 

As such the far, far easier way would probably be through parliament itself to sort out the mess, but that requires the opposition to actually sort themselves out and speak as one, something that they have to date failed to do so. Hence the Court action. As we have previously discussed, and I think I agreed with you, it is a very convoluted way forward that is messy; however it is an option and currently is the only one that has come to fruition so far. 

I am also not a Constitutional Lawyer, so don't know the full ins and outs nor profess to; however, if there was no chance that this wasn't going to be successful, they simply wouldn't go for it. All that would end up is that they would pay the government lawyers a huge wad of cash. There is an argument there, how spurious it is, we shall see. 

[cyrusr]

Should also say, that the Courts could also make a Quashing Order, which would nullifies the executive decision to prorogue. Whether that is still applicable given it is the Queen technically doing it, that I simply have not got a clue on. 

[bickster]

Ah, the old "minister mis-spoke" defence of the indefensible secretary

 

[Chindie]

He appears to be stood next to someone moonlighting as Hitler.

[peterms]

59 minutes ago, Chindie said:

He appears to be stood next to someone moonlighting as Hitler.

But is it a pisstake, a tribute act, or a dress rehearsal?

[snowychap]

2 hours ago, cyrusr said:

It could be that he goes rogue, but that is very dangerous and would acting as a dictator and he is above the law.

I'm not quite sure that would be the case if the Government merely objected to the decision taken by the Court and appealed the decision (which would obviously take time and as the clock is running...).

2 hours ago, cyrusr said:

The Executive is subservient to parliament, it always has been, hence the need to go to parliament regarding Article 50, the deal etc.

That's not really what the judgment in the Miller Case was about. The majority judgment had it that using prerogative powers in that case (to invoke A50 and thus set in motion something which reduced indiviuals' rights amongst other effects) was not lawful.

[and that, as it wasn't explicitly set out already in the ECA - or some other Act subsequently - to give Ministers the pwer to do this, there must be primary legislation in order to empower the Government to invoke A50].

Edit: The bit above (in square brackets) isn't correct as per a response by the author in the comments section of the piece you linked earlier (comment 20):

Quote

The ratio was that RP could not be used in a way that frustrated any Act of Parliament (at [51]). When applied to the facts in Miller, it followed that RP could not be used to trigger the Article 50 process because that would frustrate the ECA and the EPEA.

...

They merely said that the executive could not use the prerogative to trigger the A50 process. They said nothing about what parliament should do subsequently, or whether the government should propose a bill to confer the power to notify onto the PM etc etc. Those were all matters they expressly refused to discuss. All they dealt with was whether the RP could be used to trigger the A50 process. It could not.

The Executive is not required to go to Parliament before it uses prerogative powers.

Quote

If it ends up being a power argument between executive and parliament, parliament will win.

It's been a power struggle between the Executive and Parliament for as long as I can remember and Parliament has been doing a whole lot of losing - over and over and over again.

2 hours ago, cyrusr said:

I am also not a Constitutional Lawyer, so don't know the full ins and outs nor profess to; however, if there was no chance that this wasn't going to be successful, they simply wouldn't go for it. All that would end up is that they would pay the government lawyers a huge wad of cash. There is an argument there, how spurious it is, we shall see.

I think that's a bizarre way of looking at it. I don't think I or anyone else have suggested they can't win their case(s) - I've just questioned the efficacy of any remedy should they do so.

I don't think we should read that, because they are bringing them, there is necessary merit in their arguments.

2 hours ago, cyrusr said:

Should also say, that the Courts could also make a Quashing Order, which would nullifies the executive decision to prorogue. Whether that is still applicable given it is the Queen technically doing it, that I simply have not got a clue on. 

As per your comment above, I'm no Constitutional Lawyer or expert (or even relatively competent amateur enthusiast) but I'm going to take a punt that this wouldn't be applicable. 

Edit: We'll find out Lord Doherty's ruling on the Cherry case at 10am tomorrow, I believe.

Edited August 29, 2019 by snowychap

[peterms]

In times like these, we need people with integrity, consistency, resolve, courage, and an independent cast of mind.

Step forward Bambi Rudd.  Not forgetting Hat Mancock.

 

[peterms]

From last night.