The Supreme Court, Proroguing & Dangerous Precedents
Remainers celebrating the ruling need to consider the greater implications of a judiciary that enforces policy, not law
Kit Knightly
The Supreme Court has ruled against Boris Johnson’s proroguing of Parliament. Because of course they did, because they were always going to.
People all over the country are celebrating this ruling, but one can’t help but feel that comes from the perspective of not fully understanding what it could mean, down the line.
Essentially Britain, a country that famously has no official “constitution”, just a network of vaguely-agreed upon conventions, legal opinions and precedents, now has a Supreme Court which is willing, when invited to do so, to make decisions on policy.
This is very important – this legal finding is nothing to do with “legality”. Neither Johnson nor any member of his cabinet is accused of having actually broken the law.
They acted entirely within their prerogative and according to their legal authority. That is not being challenged.
What’s being challenged is whether or not they acted for the right reasons, or at the right time. These are obviously both highly subjective questions.
In fact, this hearing, a combined appeal, is entirely about legal opinion – mostly about whether or not the decision to prorogue parliament is even actionable under law.
To sum up the history:
Gina Miller, a private individual, brought a legal case to overturn the prorogue in the English courts. It was thrown out, with a judge claiming it was not subject to legal challenge (from the SC’s official summary below):
On 11th September, the High Court of England and Wales delivered judgment dismissing Mrs Miller’s claim on the ground that the issue was not justiciable in a court of law.
However, in a separate case, 75 MPs took a similar challenge before the Scottish courts. That court found (our emphasis):
the issue was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the Government
So you see, the issue is not one of legality, but of opinion and motivation. Very dodgy areas for a court to be issuing precedents. Essentially the Scottish courts ruled that Johnson can’t prorogue Parliament, in this instance, not because he acted outside his legal authority, but because he did it for the wrong reason.
To absolutely no one’s surprise, the Supreme Court agreed with the Scottish court’s findings. To quote the official summary:
The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.
The “constitutional principles” being invoked here are the sovereignty of Parliament, and Parliament’s duty to oversee the executive.
The Supreme Court has ruled that though the Executive (the Prime Minister) has the legal power to prorogue the legislative (Parliament), his use of those powers in this instance, is improper.
Do you see why that might be a problem?
Essentially, it is now a precedent – in a country who’s entire legal foundation is built upon precedent – that a private individual (in this case Gina Miller) can invite the Supreme Court to reverse decisions of the elected executive IF they deem the PM’s motivation to be improper.
That’s all very well and good, some might say, because we currently have a heinously incompetent, brutally unpleasant, right-wing Tory government.
However, that will not always be the case.
Imagine if Jeremy Corbyn (or some other left-winger) were to become PM. How long would it be before his power was undermined in this fashion?
“Ah, no” – some will argue – “this case is a one-off because Johnson was going against the constitution”.
Which would be a fair point except – as I have previously pointed out – the UK has no constitution. They have a the Bill of Rights act of 1688, they have Human Rights Act of 1998, the UDHR and ECHR and a spiders web of interlinked legal precedents. There’s no single codified document, and as such our “constitution” is subject to interpretation on a case-by-case basis.
It is absolutely foreseeable, just as an example, that a governmental boycott of Israel could be ruled “unconstitutional” because it is “motivated by antisemitism” and therefore breaches UK’s “commitment to anti-racism”.
Or that a push to re-nationalise industry would be subject to legal challenge on the grounds it was “unconstitutional” by conflicting with the “British values of free enterprise”. (Don’t forget Richard Branson once sued the NHS, he would absolutely take Corbyn to court to protect Virgin Trains).
Then there’s the question of our actually leaving the EU, or the second Scottish independence referendum, both of which could now easily face legal challenges to (at best) delay, frustrate and obfuscate their execution.
In a country with no solid, written constitution, you need to be careful with precedents. This one feels important, and leave or remain, should it be a cause for celebration?
You can read the entire summary here, or below, and decide for yourselves.
SUPPORT OFFGUARDIAN
If you enjoy OffG's content, please help us make our monthly fund-raising goal and keep the site alive.
For other ways to donate, including direct-transfer bank details click HERE.
It’s quite bizarre that the far left is supporting the Neocon, fascist, Disaster Capitalist attempted coup of Britain.
I guess that’s because ultimately revolutionaries of either side don’t do democracy. They both need Parliament usurped and out of the way to stand any chance of them taking charge.
In other, plainer, words, dangerous nutters of the right and left are united in their attempt to dismantle British Parliamentary democracy. I hope you can sleep well at night.
The British left saw the EEC for what it was long before it morphed into the nakedly neoliberal, anti-democratic outfit of today. However, if you regard the true left as being Chuka Umuna and Jo Swinson rather than Denis Skinner and Tony Benn I accept your comment is one made in good faith.
Parliament is a servant of the neocon, neoliberal, fascist, Disaster Capitalist attempted coup of the world. You are too unintelligent or dishonest to state the obvious truth, that the “centrists” that the media so lauds are in fact the greatest threat humanity has ever faced. They are committed to doubling down until we are all dead. This court ruling is just another step.
“centrists”…it’s almost flattering; they need a name that describes who they really are.
Found this little snipet on another site:
“according to Quentin Letts in The Sun, Lady Hale has just taken on a (cushy) job at an Oxford College run by Alan Rushbridger , ex-editor if the Guardian and prominent supporter of Gina Miller.”
no matter abut conflict of interests amongst the judiciary then!
A Supreme Court, as we have seen in America, often has to rule on a balance of conflicting legal or constitutional obligations. E.g. privacy vs security. So I dont think that ruling where the law is not evident or is contradictory is unexpected or unwanted for a Supreme Court
Setting precedent is its main job and without a written constitution, they are in effect, gradually writing one.
If a Labour Govt. sanctioned Israel or whatever, the Supreme Court could be appealed to. If they ruled on such a thing, the circumstances would be different and the outcome with respect to what the Govt wanted would probably be different.
I don´t think any of that is such a bad thing. Better than a Boris, Neo-Con mindset of The law is what we say it is.
Legend has it that when Gerald Gardiner’s daughter arrived home from school one day to discover that an especially sumptuous tea was being prepared she was told, on asking why, that one of Daddy’s judgements had just been upheld on appeal.
Most seem to have misunderstood the way the system in this country works. Parliament creates laws, and the Judiciary interpret those laws, using precedent of previous decisions when appropriate as guidance. No one, or group, is above the law, and that includes Parliament and the Prime Minister. Parliament could in theory pass a law that the Prime Minister can prorogue Parliament in the controversial way he did. But no Parliament would ever pass such an act. It is important that the Judiciary is completely independent of Parliament and that it can, as it always has, interpret (and in effect create) laws. The system rubs along mostly satisfactorily, if uncomfortably. Boris Johnson, in this case, stretched the seams of this power-stuggle too far. The Supreme Court had to come to the decision it did or else risk being subjugated to the Prime Minister’s will. This would create an unfortunate precedent; a… Read more »
For anyone who unquestionably bows down to the decision of these 11 judges, think again.
Law is based on interpretation, it is inconsistent and is not dispensed evenly.
If you doubt what I have said, then ask yourself this.
Why is Julian Assange still in prison.
Who can forget law lord Charlie Falconer and his part in persuading/making a case for the legality of the Iraq war.
The establishment doen’t care about ordinary people or their views, it uses them and despises them.
Who is the establishment?
The BBC, most politicians, the judiciary, the house of lords and most importantly – the EU.
Excellent article Kit, you have demonstrated how easy it would be in the future to stop any and every decision made in Parliament.
First of all, I am no fan of Boris Johnson, but it is obvious that he wasn’t the only person responsible for prorouging Parliament, it would have been a cabinet decision.
We shouldn’t forget that John Major did the same thing back in 1997 when the “cash for questions” scandal was going on.
As Rhys correctly states, I too cannot believe that all 11 judges voted this way.
Boris Johnson, a disgusting and immoral man, a dangerous neocon, hijacked our democratic process, being a PM placed into power by just 90,000 Tory swivel-eyed loons…being supported in his unlawful actions by Marxists and Trotskyists.
How utterly bizarre.
11 Remain-voting Supremes are a balanced judicial body are they?
Make every one of them state publicly how they voted.
11-0 will have as much credibility in Middle England as Boris Johnson trying to pull in a gay bar….
Firstly, you speculate about the Supreme judges’ beliefs. Secondly, you use the term ‘Remain-voting’ as a smear. WTF?
What people should be discussing is the flight to authority and why such authority has any legitimacy. The west is imbued with childish delusions that certain groups of people are selfless saints who only act in the gest interests of others, whereas others are rather worse than estate agents. Scientists, notably climate scientists, are portrayed as dispassionate experts utterly above politics, used as bulwarks of honesty by climate alarmists. Rarely has there been a more fatuous, self-serving pile on unadulterated bullshit. Academic scientists need grant money to stay on the gravy train and they sing for their supper to get that grant money. Indeed it is precisely the ones and only the ones who do sing for their supper who gain seniority. They are utterly political, entirely biddable and treat dissenting voices like witches at Salem…. The next group are doctors. Doctors are a very strong Trades Union who say… Read more »
A finely balanced response. Thank you.
Bill of Rights 1688/9 . I A B doe sweare That I doe from my Heart Abhorr, Detest and Abjure as Impious and Hereticall this damnable Doctrine and Position That Princes Excommunicated or Deprived by the Pope or any Authority of the See of Rome may be deposed or murdered by their Subjects or any other whatsoever. And I doe declare That noe Forreigne Prince Person Prelate, State or Potentate hath or ought to have any Jurisdiction Power Superiority Preeminence or Authoritie Ecclesiasticall or Spirituall within this Realme Soe helpe me God.” What more do you need? —— In 1972, Sovereignty was surrendered to a foreign potentate, (vis: EEC), and on that very day, (‘cos the GOD saw it happen), Parliament ceased to exist as such and the Monarch was no longer a monarch. 30 years on, in 2001, certain lords, miffed at being excluded from their hereditary birthright, invoked,… Read more »
I may be revealing my ignorance here–driving on the wrong side of the road, as I do!–but does this ruling actually directly affect Brexit at all? I was under the impression that Brexit now arose by default on Oct. 31st, regardless of what the Parliament in London may or may not do. I was told that the only body in Europe that could now reverse Article 50 would be the EU itself. Was I misinformed? If not, than this is all a tempest in a teacup.
No Seamus, it doesn’t impact Brexit directly. We’re still heading for a No Deal and B-Day on the 31 October, for the moment. This court ruling allows the unlawfully suspended Parliament to return to work. In so doing there may be attempts by some MPs to defer or scupper Brexit, or lead to a General Election, or another referendum, but only if they can get enough support, just like with anything else that’s put to the House and voted upon. Therefore, indirectly, Brexit may potentially be affected, and that’s why Johnson unlawfully suspended Parliament to avoid any possibility of Brexit not occurring, stopping ALL activity in the House, an exceptionally extreme and dangerous action to take. If he had got away with doing that for one thing, he would have set a dangerous precedent for any future tinpots of the far right or far left to hijack the British Parliament… Read more »
It was only a prorogation for a few days at a time when there would normally be a recess anyway for party conferences as I understand it. They were still scheduled to return around Oct 10 I think so would have had plenty of time then to scupper Brexit since that is what they want to do. Just another attempt to paint Boris is as bad a light as possible imo.
@margaret No, listen to the whole ruling of the Supreme Court. She explains that being in Conference Recess is very different to being prorogued. Even as a Clean-Brexiteer I acknowledge that the Supreme Court might actually be right. I underestimated the impact of prorogation, which was heavier than I’d previously thought. No. 10 acted poorly to disable Parliament’s right to object to them. The MP’s are becoming increasing treasonous post Brexit, but they should still be allowed to do business even though it’s irritating to see Brexit delayed, and to have them put off the general election until the last moment. But the process for the people to see their will done, is 1- The silent Queen takes advice from the Executive 2- The Executive governs by consent & confidence of the House 3- The MP’s are elected to represent, and are checked by, the people. Boris attempted to bypass… Read more »
Please see the interview of “The Duran” with the video “U.K. SUPREME COURT DISMANTLES BORIS’ BREXIT PLAN” – https://www.youtube.com/watch?v=95aRljx2lnw
Many commentators here are forgetting that the 2016 referendum result has no constitutional grounding, whereas political power in the United Kingdom has for centuries been ultimately ceded by the executive to Parliament. Once upon a time the monarch ruled supreme and was above the law. Overtime, the aristocrats of the land began to challenge the supremacy of the monarch leading to Magna Carta. This began a long history of legal and political manoeuvring, including violent conflict, that shifted supreme political power to parliament. Recall that parliament was made up exclusively of aristocrats until relatively recently. Politics and the law itself have not really adjusted to account for this change. There is no connection between the legitimacy of a parliamentarian’s actions and the preferences of the people he or she is representing. So, everything the executive does is subject to the scrutiny and curtailment of parliament. Whether this is the correct… Read more »
If parliamentary business was democratic we would not have had austerity. The people’s vote was for most, the only vote they will ever have that had meaning.
Very nice precise. The author’s remark”…and as such our “constitution” is subject to interpretation on a case-by-case basis.” brought to my mind:as a physician would.
Excellent summary C Starky.
C Starkey, please stop using the BBC/remainer chant of – “but it was only advisory”.
If it had been advisory, people would have stayed at home and not voted.
Had the Remainers won the referendum, you can be pretty damn sure the establishment would not be calling it ‘advisory’!
@andyoldlabour and @Seamus Padraig I am commenting very specifically about the basis for the court’s decision, not the moral correctness of parliament’s behaviour. Morally, parliament should give effect to the outcome of the referendum. Politically, the consequences of failing to do so should be removal from parliament, at the next election, of those not heeding the “people’s vote”. But as things stand, that’s all you’ve got. The current constitutional arrangements do not contemplate, in any shape or form, direct political decision making by the citizenry. The peoples’ role, again, constitutionally speaking, is to elect representatives, and no more. If you thought your vote in the referendum was somehow binding then I’m afraid you were conned. Parliament is so contemptuous of direct political action that they didn’t bother to provide a process for giving effect to the result. Unless you expect a revolution, whereby the allocation of power is permanently adjusted… Read more »
I remember seeing somewhere in the referendum’s terms that its result would not be binding on Parliament. That Parliament is faux acting kinda-sorta as if it were is itself a red light. Or at least should be a red light. The fact seems to go mostly unmentioned.
Otherwise, and indeed very much because of this continuing patrician mendacity, yes, viva la revolucion!
Lord Sumption characterised the Supreme Court’s judgement as revolutionary. Dominic Greive acknowledged that the judgement is a significant constitutional change. These are people who (because of their Remain politics) welcome the judgement. Yet even they recognise that the Court invented new law and changed the constitution. The judgement ensures that in the future whenever someone with deep pockets objects to a political decision, they will resort to the courts. Tuesday was a remarkably bad day for both democracy and the rule of law. It was a bad day for democracy because it means matters that are political will inevitably be decided by unelected, unaccountable judges: a process which means the wealthy will find it even easier to over-ride the wishes of ordinary people express in the ballot box. And it was a bad day for the rule of law because judges deciding matters of politics will inevitably bring the judiciary… Read more »
Talking of dangerous precedents: talk of a Constitution with no reference to the Magna Carta is a huge Constitutional obfuscation. All our rights – including the Bill of Rights – are founded on the Great Charter. It entails our Common Law jurisprudence – trial by jury; etc – to which all subsequent Statute Law is inferior. But the greatest enshrined principle is the Sovereignty of the People. If we cede that sovereignty to Parliamentarian tyranny we are done. I am not going to argue whether the Great Charter et al constitutes a written Constitution – it does. There are sites – such as the British Constitution Society that argue that for me. Any fellow UK Column subbie knows the position. I will remind Kit that I pointed out that we are at least a decade into a cross-party agenda to have a written Constitution. I pointed out that some of… Read more »
Precedent: Alison Chabloz jailed. Thought crime.
Brilliant comment big b, I’ve been studying various documents that make up the English constitution for several years now. I feel that there has been a deliberate concealment of our constitution for many years. I’m not proud to admit, I had no idea of its existence until I was made aware of it by a lawful rebel. I had accepted life for what it was, votes made no difference, victimless crimes such as accidentally driving in a poorly marked bus lane resulted in hard to pay fines. Eagerly enforced by a police force unrecognisable from 30 years ago. The concealing of our constitution seems like a power grab by the elite establishment, whose subjects remain blissfully unaware of the power they have available to them. One good thing is the supreme courts use of the word unlawful in place of illegal. Are they acknowledging and using common law? A police… Read more »
Essentially, the judgment was a non-judgment – a qualified opinion – in my reading. For further insight: I would watch UK Column tomorrow (Friday). They have already exposed the political affiliations of one Judge. They are looking at the others now: to air tomorrow.
Do not be surprised if it turns out that the judgment was anything other than politically leveraged hot air. They are not the Supreme: the highest court in the land …we are (as a jury of peers). We alone have the power – long usurped of course – to decide on matters lawful and unlawful – if necessary, overturning unlawful statutes (like the one that took us into the Common Market – the EU as it was then – in the first place. Essentially, all Law – directed by a foreign potentate – has been unlawful since then!)
We have a written constitution, yes, but that’s not enough. Things change, hence precedent. That the entire system has become corrupted despite our having a written constitution (that hardly anyone knows about) is clear evidence our written constitution isn’t enough. What, for example, does it have to say about consumerism and perpetual growth economics, husbandry of resources, etc.? Should it say something about those, and other things of that nature? How detailed should it be? Should it be so crystal clear that it cannot be open to interpretation? To me, that would not only be far too dictatorial, it would also be an impossible undertaking. Even the ‘crystal clear’ Ten Commandments failed on that point. Hence precedent; things change. You suggest there’s a danger that “we’re done as a sovereign force”. What is a “sovereign force”? Were we ever a sovereign force? Has any people anywhere ever been such, even… Read more »
Well, my friend, I share your concerns. In the broader terms: the lights will go it – due to our mismanaged economy – deal or no deal; Leave or Remain. On account of the economy being a bio-physical exergy economy – which only a few of the public and a handful of academics are aware. For everyone else: it is a frictionless perpetual motion engine of eternal growth – unhindered by reality. It is one of the grossest ill-informed underlying (hidden in capitalist cultural cognitive linguistics) base assumptions from which we suffer. Even as the ideology of self changes (cognitive neuroscience; behavioural economics modifying Neo-Classical Economics – not necessarily for the better) – the basic premise of eternal economic growth goes on. Even as capitalism is collapsing (carnage in the repo markets indicate a 2007 redux – a dollar liquidity crisis. All we need is a Bear Stearns – Deutsche… Read more »
Agreed, with a caveat. I’m for a post-humanist, or better, post-anthropocentric turn. And a profound one at that.
But these things take time…
Agreed then, with a caveat. Naming conventions SUCK!
I’m studying ‘post-semiotics’ which is stupid enough. What it really is in the pantheon of Pythonesque ‘silly names’ is ‘post-post-structuralism’.
We can have a ‘post-humanism’ when we learn what it means to be human (for which ‘post-anthropocentrism’ is a reasonable adequation).
But what we really agree on is Life – and the live experience of it (which is the synchronicity of unfolding time itself).
[Life takes no time because it is always self-synchronous. When we enter time (the externaleity of space-time) we enter a ‘hypothesis space’ that can only ever approximate live experience. Life is not a hypothesis that can be experientially adequated by silly names!!!!!]
UKs lights will go out first of all thanks to XR, which you support.
Antonym: The lights will go out because of our over-reliance on hydrocarbons – and XR are neither catalyzing that. Nor can they really reasonably hope to stop it. What we will possibly never agree on is that the Buddha said the world was on fire 2,500 years ago (Fire Sermon). The climate capitalists did not see fit to bring this to our attention until this year. Now a little girl says the world is on fire. If you strip away (bracket off) the am-dram histrionics and corporate endorsement of the message (determined toward their own ends) …then neither message is wrong. The world is on fire. Whether you take that literally to be the climate (which is a limited hangout): or you take it more broadly and in a metaphoric sense (the Buddha’s message …”The world is on fire: burning with the passion of greed; burning with the passion of… Read more »
Toby, that’s probably the best post I’ve ever read here or any other forum concerning the ‘Will of the People’ and Brexit. Thank you.
Excellent post BigB, sums it up for me, unhappy people trying to subvert democracy.
It makes you wonder why they give us the vote if they don’t honour our rights.
Azadi was standing at the door but the door was still closed. Jawaharlal and Sardar Patel were engaged in planning the integration of princely states.
Mahatma Gandhi: What is the Last word on Kashmir
“People all over the country are celebrating this ruling, but one can’t help but feel that comes from the perspective of not fully understanding what it could mean, down the line.”
Says Kit . Does anyone see any irony there?
Re. deception via attempted prorogation. Breach of constitutional (civil law) with prosecutable related and intended war crimes.
Illegal. Breach of criminal law.
Conspiracy to commit murder (war crimes ‘misconduct in public office’) by British State and obvious usual suspects and facilitators —including all current ‘cabinet’ and all red tories—explainer, pompous ‘prorogation’ = core element of conspiracy. To suggest a binary choice is simply shilling for the war crims.
Therefore both Illegal and Unlawful.
Spot on
I recommend reading the full judgment: https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf. Unsurprisingly it has been misrepresented by most commentators, and its scope is much more limited than they have suggested. The Supreme Court avoided the need to consider the Prime Minister’s motivation and instead based its decision solely on the effect of prorogation, finding that it “had the effect of frustrating or preventing the constitutional role of Parliament in holding the
Government to account” and that this went beyond the limits of the prerogative power. You can agree or disagree with this, but don’t join in the efforts of the pseudo-liberal establishment to extend it beyond its real scope.
What does the supreme court say about the imprisonment of Julian Assange?
Let’s praise this fine man, Julian’s father!
https://www.zerohedge.com/geopolitical/theyre-murdering-my-son-julian-assanges-father-tells-pain-and-anguish
I guess Julian’s father and mother must be given audience at the UN.
Also, the best lesson about democracy, Hong kong protesters can learn by meeting Julian’s parents .. the sooner the better.
British District Judge Vanessa Baraitser ruled Julian Assange will remain in prison, despite the fact that his custodial sentence for “absconding” bail expires on September 22.
https://www.wsws.org/en/articles/2019/09/14/assa-s14.html
The MSM of course has remained silent.
Even torture apologists at the Guardian like Hyde, Moore, Ball, and the rest of the identity politics crowd seem to have lost their appetite for cheering on human rights abuses.
I assume the Swedish prosecutor is still trying to figure out if there are any charges to answer – after all one mustn’t rush into these things and so far they have only had a decade to formulate a case.
https://uk.reuters.com/article/uk-wikileaks-assange-sweden/swedish-prosecutor-reviewing-witness-accounts-in-assange-case-idUKKCN1VU0ID
America is pulling the strings while Britain and Sweden pretend to be interested in human rights: the whole thing is a a microcosm of the power dynamics between western states and the global ambitions of the US empire.
Couldn’t agree more, Harry …couldn’t agree more.
Nice one ‘arry. Nailed the Graun’s identity gals for the sham they really are…
To my knowledge, nobody has taken the despicable treatment of Assange to the Supreme Court. If they did, I think he’s actually stand a better chance of justice.
Interesting read on the makeup of the Supreme Court:
https://hat4uk.wordpress.com/2019/09/25/exclusive-why-this-supreme-court-was-never-going-to-find-bojos-proroguation-legal/
The most interesting thing about this result isn’t the law, as the reason the judges of the “highest courts in the land” have to be such legal experts is so that they can twist any verdict that is required by PTB to seem to be the law of the land. They are always political and extremely sensitive to the prevailing opinion of the elite; however they are also typically very cautious about one other thing – taking on a new government. For obvious reasons high courts of any nation rarely go against the wishes of a new government and this is a very new government, so what gives? One can only assume that it has been determined by the combination of lobbyists for the elite, intelligence services and senior public servants that Johnson must not last. The interesting part will be if these types are silly/vain enough to decide that… Read more »
This analysis by John Ward of this “Supreme Court” is also extremely interesting.
Summary: ” There is something about the term ‘Supreme Court’ that affords it an image of absolutely scrupulous objectivity in all things. Like most British Justice these days, it is nothing of the kind. As this Slog investigation strongly suggests, the “Highest” Court in the Land is massively biased against Brexit, and enjoys a near-universal connection with ‘the European Project’. In the light of this research, there is the very strong smell of political intent masquerading as Constitutional diligence. It is time these facts were put before a much wider audience”
https://hat4uk.wordpress.com/2019/09/25/exclusive-why-this-supreme-court-was-never-going-to-find-bojos-proroguation-legal/
The fact is the judiciary is open to external influences. I sometimes wonder if the TV series John Deed is close to the mark on certain matters. If there is a certain case which the powers wish a certain outcome, a judge can play around with law to reach it. Just as with the woefully unqualified Eliot Higgins plays with the science to reach the wrong outcome. I recall one case – McAlpine v Bercow where the judge went against his own precedent just a few years before. If you recall that case was libel and concerned historical allegations of child abuse. The media were also hysterically slamming Mrs Bercow so there was massive pressure for her to lose. Fast forward to Assagne’s court appearance. If I got my facts straight he/she called Assagne a ‘narcissist’. Where did that come from when I understand he’d/she’d not met Assagne and the… Read more »
This tawdry episode has in fact very little to do with whether or not Johnson’s actions were legal or otherwise. But it has everything to do with the ongoing struggle of the UK/EU establishment to frustrate the will of the people who voted to leave Brexit 3 years ago. Sooner or later the big guns of the British legal establishment were going to be rolled out to pummel the great unwashed and effectively put an end to the democratically arrived at decision to leave the EU. So the line up against the people has always been the political elite, the media elite, the EU bureaucracy, the funded Remainer campaign and now apparently the judiciary. It seems that election results have now become provisional. Counting the votes and determining who won, is apparently no longer sufficient to declare a winner and a loser. In the case of illegal actions at polling… Read more »
Well, Frank – I think you just about nailed it. The Constitutional position is simple: we vote – they act. Three years on: it has nothing to do with Leave or Remain. As you say: a Constitutional precedent is being set. All argumentation aside: if we cede democratic sovereignty from the People to Parliament – we are all but done.
The Elected Dictatorship we have endured for too long becomes openly fascising at this turn. If we welcome it to salve personal bias we invite our own humiliation at the feet of corporatist fascists …under the EU/NATO suzerainty of an openly expansionist paramilitary suprasovereign state. One that is financially collapsed – as we both can see – and will absorb all peripheral wealth on its implosion. Welcome to Greece, Ms Miller …welcome to Greece.
Democracy is now exposed for what it truly is.
“I have planted a false oath in the earth; it has brought forth a Poison Tree” William Blake
Johnson, and his right wing mob, are the ones who hijacked the British Parliament to push through a No Deal Brexit, which is the most extreme, Disaster Capitalist version of leaving the EU possible.
The Supreme Court on the illegality of the PM doing that, it was not specifically about Brexit for them, but that’s what BJ’s actions had turned it into.
It’s quite bizarre that the far left is supporting the Neocon, fascist coup of Britain, but I guess that’s because ultimately revolutionaries of either side don’t do democracy. They both need Parliament usurped and out of the way to stand any chance of them taking charge. Dangerous nutters of the right and left are united in their attempt to dismantle British Parliamentary democracy.
What this actually does is heighten the risk of violence.
When people see that one individual and unelected judges can stymie the will of 17.4m people, they are less likely to trust democracy. They may decide to take the law into their own hands, with Gina Miller’s neck rather tightly squeezed by their own hands….
I wonder whether the self-serving, unprincipled charlatan Chuka Umunna will cry racism if people state in no uncertain terms that he is no longer a fit and proper person to stand for Parliament. I want him nowhere near any representative body in future, because he will not accept he has lost a democratic exercise.
My list of unfit people is considerably longer than him and includes Emily Thornberry and Keir Starmer….
Rhys, I think you mirror my thoughts exactly, especially aboutUmunna and the other traitors. If an MP leaves their party/defects, a by-election should be called immediately, because it is sheer arrogance to assume the electorate are happy eith the actions of a traitor.
As for Gina Miller, I think that her actions – opposing democracy, could go badly wrong for her.
I’m wholly inexpert in matters pertaining to the law, constitutional or otherwise, but from a very basic perspective I would argue that all law requires interpretation to some degree; it’s not about eternally fixed absolutes. Each situation is unique. At the same time, the law can’t be wildly arbitrary, it must be essentially conservative and more-or-less predictable over great tracts of time to be trusted. And trust in the law is of course vital. From this, it seems to me safe to assert that the law is ‘above’ politics and power, or at least should be, as part of how trust in its functioning is sustained over time. That said, I have a question. What if the law were never permitted to intervene in the actions and decisions of prime ministers and other politicians? Why shouldn’t private individuals have redress to the courts when there is good reason to believe… Read more »
Intervening to overrule an ILLEGAL act is completely acceptable. Intervening to overrule a LEGAL act the judge simply does not like is not acceptable. For all the reasons the article says.
Can’t it be reasonably argued that the legality/illegality of this case is necessarily not really the issue? My argument is that this is not black and white, not legal-illegal, but rather about abuse of power, i.e. on balance far more about interpretation (see below). My own view is that the case was in fact brought for cynically political reasons that have to do with thwarting the results of a referendum, and nothing to do with rescuing democracy. Equally, however, the reasons for the prorogation were also cynically political, so much so that I simply do not know what Johnson’s actual motives re. Brexit are; though they are very probably other than what he states. He is for example silent on European Defense Union. I also do not trust the High Court here, having good reason to suspect it of being politically motivated, of not acting ‘neutrally’ at all. In other… Read more »
Kit, I usually agree with what you have to say, but on this occasion I disagree strongly. My view is not influenced by pro or anti EU, as a New Zealander it is essentially not my concern.All 11 of the UK’s highest court agreed that Johnson acted contrary to a proper interpretation of the relevant legal principles. The fact that the UK has no written constitution (unlike the US for example) is essentially a red herring. The relevant legal principles can be traced back hundreds of years and are valuable because the law is essentially more important than any given politician who dances to a different tune.
Johnson is essentially acting like a tin pot dictator and this judgment is a timely reminder that the law is more important than any passing politician.
Completely wrong!
The will of the people via the result of the 2016 referendum is being totally overturned by the remain lobby, the elites and the EU – Johnson appears to be determining a leaving the Eu – so who exactly is acting illegally? It is over three years and we still have not left the EU – ask yourself why?
Is going to a meeting of the Prime Minister of India greater than the warmth of meeting with the Prime Minister of Pakistan?
Who is closer to Trump: Modi or Imran? India battles Pakistan
The UK elite is quite close to Pakistan; US Deep state too as they want to use Paki militants against US opponents in Iran, Afghanistan, Yemen or China. The problem is that these Sunni mercenaries take the money and weapons and after follow their own agenda again.
UK’s (=London and around) Elite protects their own – shocker – not.
There is nothing obscure about the constitutional issues involved: Johnson’s position as “The Minister” depends upon his ability to show that he has the confidence of the House of Commons. If he can show that he has that he can do just about anything he wants. His problem is that he does not have the confidence of the House. Nor, it would seem does anyone else: the biggest party, the Remain Centrists, cannot organise themselves in the face of the Labour Party, following agreed policy and the Johnson Tories. So the answer is a General Election which everyone except the socialists wants to fight on the woolly non- issues of Brexit or Remain. Johnson would like to campaign on the issue of Brexit, the Centrists would like to campaign to on the issue of carrying on down into an ever closer union., But these are only superficial matters, minor questions… Read more »
Well done the Scottish courts. BJ is a devious scoundrel and represents all that is vile in “British” politics with his loathsome Tory party. Independence from the collapsing British colonial empire cannot come soon enough for Scotland.
Hale said it was unlawful in her opening statement?
Here’s a question:
Is ” Unlawful ” the same as illegal?
If what happened was illegal then in normal law/times a prosecution would follow.
I would like that to happen to this whole Tory government.
But what if Johnson et al did was ” unlawful ” then is this the same as say an employer not paying the minimum wage ( acting unlawfuly ) but not being prosecuted – just told to obey the law in future with no penalty?
Basically if Johnson and his advisers to the Queen knowingly/unknowingly broke the law ( ignorance is no defence ) then a prosecution should follow.
This was a telling off by the Judges.
A warning not to ask the Queen for a further Prorogation.
Un fortunately – no one is going to jail.
I was very interested in Kuenssberg’s comment on TV tonight. She spoke of “audacious moves” by the government. I feel sure her language would, if she were describing a similar move by Corbyn, have been an angry denouncement of those VB who would embarrass the Queen.
Corbyn’s keynote speech today at the Labour Party conference in Brighton was supposed to be cut down from one hour to half an hour, because Parliament is opening again tomorrow and the MPs have to get back to London.
In the event, Corbyn spoke for about 50 minutes. He said that a Labour Party in power would re-nationalise water, power, the railways, and a whole host of other industries.
All this, of course, is not allowed if you’re a member of the neoliberal/bankster EU.
I respectively suggest that people really do need to think about all this.
The only thing that concerns them is that their house prices continue to rise.
Kit, I know that you are not British, and I don’t want to disrespect your normally excellent viewpoints, but you are so way off with this, it needs answering strongly. this legal finding is nothing to do with “legality”. Neither Johnson nor any member of his cabinet is accused of having actually broken the law. Before today’s judgement, the concensus of both sides was that was going to be a close call, even that Boris would get a gentle slap on the wrist an essentially win. Instead, ALL 11 legal supremos judged unanimously that Boris’ prorogation was not only UNLAWFUL, but also specifically that: This court has … concluded that the prime minister’s advice to Her Majesty [ to suspend parliament] was unlawful, void and of no effect That’s utterly damning. Moreover, let this next judgement by impartial legal eagles sink in Kit: “the effect on the fundamentals of democracy… Read more »
Well, that’s one take on it (and I will remind you that ‘austerity’ and neoliberalism are official policies of the EU, and all member states have to abide by these policies – have you been to Greece lately?).
‘Free’ by Deniece Williams:
I wouldn’t get too excited if I were you. They’re political appointees recommend by Cameron and May, not revolutionary heros.
What makes me laugh is all the protestors outside Parliament on College Green (where all the totally corrupt media are).
Just about all these protestors are paid for by the EU.
It ain’t real folks; it’s all a total sham.
No, no, no, that bloke with the permanent stubble and top hat, who’s been standing outside parliament for the last 3 years is an anti-capitalist hero……. isn’t he?
With all due respect I think you mean counter-revolutionary heros.
Hi Frank,
Firstly, you don’t know I’m not British. You have no idea where I’m from, and for the purposes of this discussion that is entirely irrelevant.
Secondly, whether I’m British or not, I do speak perfectly fluent English and consequently know the difference between “illegal” and “unlawful”.
The prorogue was not found to be “illegal”, because the PM used his authority entirely within the letter of the law. The finding readily admits it is in the PMs prerogative to suspend parliament.
The court instead found it to be “unlawful”, which is to say in their opinion it breached some unwritten convention of the British “constitution”.
Do you understand the difference?
Do you agree that unelected judges deciding how a head of state can/can’t use their legal authority based on entirely subjective grounds might be dangerous?
But almost all the media commentators are saying that he’s “broken the law”.
Mike Ellwood – I think you’re attributing a bit too much intelligence to the media commentators.
I think the distinction between ‘illegal’ and ‘unlawful’ in this case stems from the notion that the King/Queen is traditionally an autocrat, their word *is* law, so the PM acting as the Queen’s proxy cannot do anything illegal. Obviously custom, practice and the occasional negotiated settlement temper this absolute right so providing the foundation of a democracy while still maintaining a monarch. As a result there’s no one place where everything is spelt out in black and white — its just assumed that everyone involved in government knows how to behave. Then along comes a Boris (or rather, a Dominic) who opportunistically realizes there’s really no explicit checks on power. He needs power for his agenda but Parliament stands in the way so the obvious solution is to get rid of Parliament. Proroguing is suspending Parliament but it comes with the implication that the administration — the Cabinet — also… Read more »
It is actually Parliament getting in the way of the people’s choice that is the issue.
All the Remainer Lies that the people were deceived are absolute rubbish. People knew what they were voting for.
There was a Referendum which Leave won in 2016.
There was a General Election where Labour and Conservatives agreed to implement Brexit. A sizeable majority voted for those parties in 2017.
Then less than 500 MPs do anything and everything as paid US/EU whores to stymie the right of 17.4m people to freely leave the deeply flawed and undemocratic EU.
The scandal is all about the utter shamelessness of those Remainer extremists, led as they are behind the scenes by the genocidal warmonger Anthony Charles Lynton Blair and the execrable George Soros.
Those MPs have tragic conflicts of loyalty and I truly hope the electorate give them the most damning verdict possible….
As a Californian I know all about “the will of the people” because of our initiative process. This was originally set up to give the people of the state the opportunity to bypass the legislature because it was mainly in the pocket of business interests. That was then. More recently the entire initiative process has been brought into disrepute by it being taken over by huge sums of money representing interest groups so now there’s talk of trying to reform it, to make it once again representative of ‘the will of the people’. The Brexit referendum was the UK dipping its toe into the initiative process. As with modern initiatives in California huge amounts of money, much of it from dark sources, came into play and the result was a narrow victory for ‘leave’. Fair enough. Except that on closer examination the assertions and promises of the ‘leave’ campaign turned… Read more »
Firstly, you don’t know I’m not British. You have no idea where I’m from, and for the purposes of this discussion that is entirely irrelevant. About two years ago, I read here that you were American. Not too important, but I recall it. It’s not entirely irrelvant. Being born, bred and to suffer in a country and its broken politics does give one a certain insight compared to outsiders. Objective outsiders views are welcome, and valid, just different. Unlawful vs Illegal Nothing to do with the English language, it’s to do with a training on law, which I do not have. Unelected judges versus head of state Judges are there to interpret and enforce the law which Parliament passes. There’s no competition between the two, they co-exist side by side, and it works well….until you get politicians who place themselves above the law. History is littered with examples of totalitarians… Read more »
Fully agree with the author on this article. BoJo will once again prorogue the God damned Parliament of the UK based on his own autonomy as PM, and rule of law. The left-of-center punditry is reflexively responding to Tory planning for hard-BREXIT out of pure unadulterated ignorance vis-a-vis Macroeconomics & Macroprudential policy as that relates to the finance capture of the European bureaucracy in Brussels where all the autocrats dictate terms so that the people of the UK have no God damned autonomy whatsoever. BoJo may be a slimebag neocon but he sure as hell knows enough to take the UK out of the EU given the upcoming second leg of deflationary headwinds that manifested due to the Lehman debacle in 08. If you disagree with BoJo you are certifiably _Functionally Retarded_ which is still on the books of Developmental Psychology, and as such is still nomenclature for the American… Read more »
capture of the European bureaucracy in Brussels where all the autocrats dictate terms so that the people of the UK have no God damned autonomy whatsoever……………………………….We’ve been told for the last thirty years this has already happened, anyone who’s in doubt should be feeling quite relaxed after todays ruling, the Oaf won’t try to prorogue parliament again. and we won’t be leaving the EU October 31, any idiot apart from the leavers muss understand that.
Very interesting overview. I wonder if we might be having similar discussions if the Court had ruled in some other way.
The PM would have ‘allowed’ Parliament to resume for a day or two, watched Brexit No-deal float down the river and into the stream and then carried on regardless.
Would he have to call an election, allow another vote, be held accountable in any way?
Who knows!
Kit, I entirely agree with the points you’ve made here; but we all know that the British constitution (along with a constitutional monarch – gawd bless yer, maam) is entirely crazy for the 21st century.
What seems apparent here – at least to me – is that the Establishment were never going to allow ‘Brexit’. How much a part Bojo has played in this can only at this stage be guesswork; but my own guess is that Bojo is a part of the biggest fit-up in UK history.
I sincerely hope not, but I fear that there’s going to be civil unrest in the UK over the coming months.
Time for another twerrorist attack, to divert the masses.
There will never be civil unrest from leave voters. They know they’re on the losing side whatever and they’re fully aware they’re facing a heavily armed para-military force. All the threats of unrest have come from remain fanatics who’ve never experienced any aspect of criminal justice their lawyer couldn’t deal with. And their knowledge of resistance is limited to Ref2 marches and green demos.
I’m sure they’d be prepared to picket their local Starbucks for inconsistent supplies of organic soy milk.
Try visiting the comments pages of the Daily Kippergraph and Breitbart and you’ll quickly see threats of insurrection. Brexit has given a licence for the loons to roam freely, it’s all part of the Disaster Capitalism plan.
Agree with your 1st two paragraphs, at least. And we might remember that Nigel Farage, who has always been an out and out true believer in Brexit, has never trusted Boris on this.
What’s remarkable is that socialists can support a City spiv and his rich mates who only care about enriching themselves further.
Socialists don’t support them at all. They wanted to support Corbyn’s Labour but were forced out by the London/Southern centrist elite that still holds all the power. All we wanted was for Labour to be a party that didn’t get involved in second referendum nonsense. Instead, the party was disabled for the upcoming election by people who refused to acknowledge the fact that constituencies we had to win were mostly leave. Not happy with that, they went on to destroy Corbyn personally with false allegations of anti-semitism.
I have come out of this without a party but with a deep and enduring loathing of Liberals. Think of that what you will.
I’ve have still yet to find whether this has adequately been addressed, anywhere?
I have no problem asking this as a Brexiteer but live happily in the knowledge that had I been a Remainer, I would want the same question answered.
TFS, in gambling terms it’s almost impossible to beat the house.
The UK is now in what is probably the greatest constitutional crisis since the civil war in the 1700s.
It’s fascinating stuff.
(I picked a bad week to give up smoking)
You surely know that smoking is good for you and your brain? Vape a good product and you’ll be 99% better off than smoking, but still better off than keeping off the nicotine, in my personal opinion, not medical advice…
He is surely riffing on the Airplane gag isn’t he? 😉
(I picked a bad week to give up smoking)
And you picked a bad century for civil wars.
I was having a ‘Thunberg moment’ (it’s been a busy 24 hours).
I meant, of course, the 17th century.
The English civil war was in the 1600s, not the 1700s.