Reply to: Prorogation - Supreme Court Verdict: Legal or Illegal

[jamesbrown]

Presumably Boris will go for the shorter prorogation now for a QS. SC suggested 4-6 days.

How far will he push it?

7 days?

[jamesbrown]

Once ruled justiciable, it was all over w/r to propriety. There's no way the evidence pointed to a proper purpose.

[jamesbrown]

Let the fun begin

The only way that decision could've been worse for Boris is if they'd ruled on motive.

I expect this will have profound consequences in the long run and push us more towards a US-style political court (hopefully not).

Bercow will be soiling himself to get to the chamber.

[DealorNoDeal]

The easiest way for that to happen would be to pass a bill requiring the consent of Parliament before prorogation can take place.

Might be a good idea to address the prerogative power to "declare war" while they're at it.

[jamesbrown]

^^ This.

There is a distinction between the executive - The PM and their government - and Parliament, the body made up of sitting MP's. Parliament is sovereign and above the executive.

With Huitson the executive put forward a proposal for legislation and Parliament approved it.

With the prorogation the executive took the decision without consulting Parliament, who were not given the option to be involved. The legality of that decision is what is being challenged now. One of the basis for that challenge is that it undermines the sovereignty of Parliament.

The key point is whether the decision to prorogue is justicable i.e. is within the purview of the courts to adjudicate it's legality. If the SC decides it is then it's pretty much a home run for the appellants as there is statute law and precedent supporting their case.

If the SC decides it is not within their purview then the executive can pretty much do what it wants, when it wants, without fear of legal reprisals.

Regardless of the outcome I would expect Parliament to bring forward a bill to do something about that extremely quickly, in the same way they did with the bill to stop a No Deal Brexit. The easiest way for that to happen would be to pass a bill requiring the consent of Parliament before prorogation can take place. This would not impact a government with a working majority, as they would win the vote anyway, but would prevent abuse of power to dissolve parliament by a minority government in order to allow bills to pass without being scrutinised. or for example, to prorogue immediately before a vote of no confidence that the government feels it can't win.

There is no Act that "stops a no deal brexit". The only such Act is, by definition, one that revokes the A50 notification.

On another point of accuracy, I think a slightly different decision is possible, namely that there are two classes of prorogation, one intended to circumvent Parliament and the other not, the latter which includes all of those instances that are nevertheless politically motivated or colloquially "improper" but supported by Parliament. This could look to whether the gov't carries the confidence of Parliament. Now, the most obvious expression would be a VONC, but it need not be that.

When is prorogation 'improper'? | LSE BREXIT

[JohntheBike]

Isn't the judiciary subject to the control of the Lord Chancellor and isn't this position a political appointment?

Just asking!

[DaveB]

With the DTA Huitson judgement, the courts decided that parliament can do what it wants when it wants.

The Parliament maybe yes, but the PM... No.

^^ This.

There is a distinction between the executive - The PM and their government - and Parliament, the body made up of sitting MP's. Parliament is sovereign and above the executive.

With Huitson the executive put forward a proposal for legislation and Parliament approved it.

With the prorogation the executive took the decision without consulting Parliament, who were not given the option to be involved. The legality of that decision is what is being challenged now. One of the basis for that challenge is that it undermines the sovereignty of Parliament.

The key point is whether the decision to prorogue is justicable i.e. is within the purview of the courts to adjudicate it's legality. If the SC decides it is then it's pretty much a home run for the appellants as there is statute law and precedent supporting their case.

If the SC decides it is not within their purview then the executive can pretty much do what it wants, when it wants, without fear of legal reprisals.

Regardless of the outcome I would expect Parliament to bring forward a bill to do something about that extremely quickly, in the same way they did with the bill to stop a No Deal Brexit. The easiest way for that to happen would be to pass a bill requiring the consent of Parliament before prorogation can take place. This would not impact a government with a working majority, as they would win the vote anyway, but would prevent abuse of power to dissolve parliament by a minority government in order to allow bills to pass without being scrutinised. or for example, to prorogue immediately before a vote of no confidence that the government feels it can't win.

[Paddy]

With the DTA Huitson judgement, the courts decided that parliament can do what it wants when it wants.

The Parliament maybe yes, but the PM... No.

[BrilloPad]

With the DTA Huitson judgement, the courts decided that parliament can do what it wants when it wants.

[Old Greg]

So, evidently, you agree that it wasn't Parliament's intention to legislate against prorogation.

I think that leaves the SC in an odd position, second-guessing Parliament, if they choose to find against the gov't. Parliament has the power to legislate. It decided against doing so. Parliament has the power to no-confidence a gov't. It decided against doing so. The SC is not there to second-guess what laws might have been, rather to interpret and apply the laws as they are.

We'll see, won't we?

[DealorNoDeal]

If the gov't is going to win, I think it can only be on justiciability (i.e., the lack thereof).

Agreed. Also, if prorogation is justiciable, what about this prerogative power?

Why can the prime minister still take Britain to war without a parliamentary vote?

"MPs reasonably fear that an unscrupulous prime minister could use the ancient Royal Prerogative to bypass them."

[jamesbrown]

This is not being achieved for parliament but for the electorate who are represented by parliament. So perfectly right that a citizen steps in.

So, evidently, you agree that it wasn't Parliament's intention to legislate against prorogation.

I think that leaves the SC in an odd position, second-guessing Parliament, if they choose to find against the gov't. Parliament has the power to legislate. It decided against doing so. Parliament has the power to no-confidence a gov't. It decided against doing so. The SC is not there to second-guess what laws might have been, rather to interpret and apply the laws as they are.

[Old Greg]

Yeah, I'm not sure a judicial review triggered by a citizen is the best route for Parliament to achieve something clearly within its own power.

I mean, suity might take that approach.

Speaking of which, I saw this earlier and it reminded me of suity...

Tariq Rauf on Twitter: "I want to be in the meeting where this idea was proposed… "

This is not being achieved for parliament but for the electorate who are represented by parliament. So perfectly right that a citizen steps in.

[jamesbrown]

If it is illegal, there is no need for parliament to legislate against it.

Yeah, I'm not sure a judicial review triggered by a citizen is the best route for Parliament to achieve something clearly within its own power.

I mean, suity might take that approach.

Speaking of which, I saw this earlier and it reminded me of suity...

Tariq Rauf on Twitter: "I want to be in the meeting where this idea was proposed… "

[Old Greg]

Er, we know the High Court verdict.

I'd say illegal at the SC, on balance, although it will be interesting to hear their justification because legislation is the yardstick by which to judge illegality (e.g., improper purpose), so what is the made-up yardstick by which to judge political impropriety (noting that Parliament could've legislated against prorogation too, as with the NI Act)?

If it is illegal, there is no need for parliament to legislate against it.