It is usually considered completely foolhardy to try to second-guess how judges will decide any particular case.
So here goes:
Parliament couldn’t legislate to affect the prerogative as that would have required the Queen’s Consent to the Bill (Erskine May 9.6 & 30.79) which the government would have denied.
Largely on the facts as analyzed by the Inner House of the Court of Session, the Prime Minister's advice to Her Majesty will be declared to have been unlawful by all eleven justices.
The court will, by a significant majority, hold the prerogative of prorogation to be justiciable.
To do that they will distinguish prorogation from dissolution.
Dissolution will remain beyond the reach of judicial review though Lord Kerr may adopt an even bolder position indicating he believes dissolution should be justiciable too.
The Order in Council incorporating the prorogation instructions may be considered invalid by a tight majority. It's possible there are likely to be concurring opinions on the legal effect of the Order in Council with nuanced positions taken.
The remedy will reflect the court's support for parliamentary sovereignty that will underpin their approach and place the ability to open the doors of the Westminster Parliament in the hands of the Speakers of the Commons and Lords.
Parliament will be confirmed as master of its own procedure - the court will reiterate that parliamentary procedure is non-justiciable.
Scotland’s senior law officer, the Lord Advocate (James Wolffe QC), was part of a formidable legal ‘tag team’ who challenged the government’s decision in a spectrum of arguments during the court debate.
His significant contribution to the debate may not have been given quite the attention it deserves – possibly in part due to a troublesome microphone as he opened his argument and his unassuming style.
His arguments will be central to the court's decision.
If, as I am anticipating, the Prime Minister's advice is considered to be improper, his position will be precarious.
Any scope for involving Her Majesty will be carefully avoided by explicitly setting to one side any question of determining whether or not the prerogative of prorogation was personal to Her Majesty. The suggestion was that it was not as Her Majesty was bound to accept the Prime Minister’s advice – the court was told that this was confirmed on the government’s part by Jacob Rees Mogg in a radio interview.
“Jacob Rees-Mogg has said the Queen was "obliged" to approve Boris Johnson's decision to suspend Parliament.
The Leader of the House of Commons said there was no precedent for the monarch to refuse a request from her Prime Minister.
"This is a straightforward decision by the Prime Minister giving formal advice to the sovereign, which a constitutional monarch is obliged to follow," he told BBC Radio 4's Today programme on Thursday.”
Parliament will reconvene on or around the 24th of September and events will become even more breath-taking.
"The Prime Minister reported to the House of Commons last week that any further extension of the Article 50 notification period “would certainly mean participation in the European parliamentary elections”. I think she is wrong as a matter of law, and with five distinguished EU law experts (on whom, see further here), have written an Opinion to say so.
https://www.daqc.co.uk/2019/03/28/article-50-extension-and-the-european-elections/
On March 20th 2019, 1,000 nights will have passed since the EU referendum on Thursday 23rd June 2016.
Scheherazade ran out of tales on the 1,000th night (of course her tales lasted more than one day).
Where will the Modern Scheherazade - Prime Minister, Mrs May - be on that 1,000th night?
If her deal is still 'on the table' she will have passed the Ides of March (on the 15th) and the Ides of March did for Caesar.
Countdown to Brexit clock:
https://days.to/since/uk-european-union-referendum-vote
"[T]here is a huge dump
of worn−out metaphors which have lost all evocative power and are merely used because they save people the
trouble of inventing phrases for themselves."
George Orwell, Politics and the English Language (1946).
"For months, everyone and their mother has been calling Brexit “Groundhog Day”."
Iain Macwhirter, The Herald online, 10/02/19.
There is an another link to Professor Heuser's lecture on the University of Glasgow web page below:
https://www.gla.ac.uk/schools/socialpolitical/news/headline_632654_en.html
A recent Times/Sunday Times RedBox podcast (link below) reflects on the Government's historic defeat in Tuesday's core vote on Mrs.
May's Brexit deal - with MP Boris Johnson and journalists Matt Chorley and Esther
Webber among others.
Happily (a little after 20 minutes into the podcast) Times columnist Hugo Rifkind wanders into Middle Earth and firmly establishes the position of Hobbits in Brexit analogy.
As the conversation progresses, Matt Chorley, editor of RedBox, is not convinced that the analogy can be pressed as far as suggesting that Euro-sceptic Conservative MP, Andrew Bridgen, is an elf, but he does believe that the member for North West Leicestershire may have “hairy feet”.
https://play.acast.com/s/timesredbox/anhistoricdefeat.nowwhat-?autoplay
The Fellowship of the Ring (for educational use) is provided by © Album. Both images from Britannia Image Quest.
Statutary interpretation.
I love that.
(1) I drove past it
(2) I spotted the hat
(3) I'm doing the OU LLB
BUT
I didn't think of the jurisprudential label.
Kudos.
geoff :-D
A little frost might have appeared on those wet towels but the UK Supreme Court published its judgment today:
https://www.supremecourt.uk/cases/docs/uksc-2018-0080-judgment.pdf
Theresa May is to make a statement to MPs at 15:30 GMT amid reports Tuesday's vote on her Brexit deal is being delayed.
https://www.bbc.co.uk/news/uk-politics-46509288
That's the third instance I have read or heard about of a party in power preventing democratic process within 12 hours. They are arguing about it on the radio right now where Lancashire County Council are bringing in parking fees and bus line fines to raise £77m per year but refused to allow it to be discussed by the opposition, nor allow them to present a petition. When they objected, the microphones were switched off.
(The other was in the House of Representatives across the herring pond where the microphones and cameras were switched off to prevent a pro-gun control debate.)
How did we allow this to happen? When the people in power are not answerable to the elected representatives, it is autocracy.
Perhaps an inevitable consequence of the strains under which Parliament is sailing through stormy constitutional waters with the Government having its hands firmly on the tiller and timetable straining against an unsettled crew of many factions seeking to break into the map room to gain a better picture of the course ahead.
The Speaker has announced that he is satisfied that there is an arguable case that it may be a contempt of Parliament for the Government (or more pointedly perhaps the Attorney General) to refuse to disclose the Attorney General's full legal advice regarding the Brexit agreement.
It appears that there will be a debate and vote in Parliament tomorrow to refer the matter to the Committee on Privileges which will investigate the matter and give a report with conclusions that it will return to the Commons.
The link below provides a useful overview:
https://www.theguardian.com/politics/2018/dec/03/brexit-legal-advice-and-contempt-of-parliament-explainer
It's nice to know the leader of one of the most powerful and influential countries on Earth, with one of the largest economies, currently facing a constitutional dilemma that will sit in the history books of the country, turns not to an economist, a moralist, a philosopher, a political scientist, the biography of a great statesperson, a lesson from classical history, one of the great religious texts or even a referendum, but to an antisocial TV celebrity with a notoriously selfish attitude as a sportsman and a criminal record for wife-beating.
Presumably Kim Kardashian was too busy to give advice.
In a press conference today, Prime Minister Mrs. May, facing daunting challenges in seeking to advance her draft Brexit agreement, referred to the diligence shown by one of her sporting heroes, Cricketer Geoffrey Boycott:
“One of my cricket heroes was always Geoffrey Boycott. And what do you know about Geoffrey Boycott? Geoffrey Boycott stuck to it and he got the runs in the end.”
Lord Sumption, helpfully and properly reiterating the orthodox constitutional position that Royal Assent is required before Holyrood legislation can become law, then stated that, within its devolved competence, the Scottish Parliament "is sovereign".
That is correct - subject to Westminster's parliamentary sovereignty prevailing overall.
The point is likely to be clarified at some stage.
This Private Member's Bill is making steady progress towards the statute book having completed its Third Reading in the House of Lords just before Mid-day today (24th July 2018)
Freedom of movement gets talked about as if it is an innovation.
Restriction of movement is the relative novelty.
People used to move freely around Europe prior to the Great War and, to some extent, after, until WW2.
Restriction of movement is nationalistic bollocks; everyone ought to oppose it.
Today President Trump tweeted "Wow" in response to the US Supreme Court decision upholding the constitutionality of the President's decision under 8 U. S. C. §§1182(f) and 1185(a) based on grounds of national security on entry restrictions for foreign nationals from eight states (Proclamation 9645 of September 2017).
This overturned the 9th Circuit's decision that the Proclamation contravened the US Immigration and Nationality Act (INA) holding, instead, that the decision to suspend entry in the circumstances was within the broad discretion available under the INA.
It seems the Proclamation was undertaken proportionately and with adequate checks.
Might this restriction on movement be a harbinger for subsequent restrictions on free speech?
Is there an echo of Robert Burns' Holy Willie's Prayer in the opinion of the Court supported by Justice Gorsuch?
https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
"Servant 1. Hold your hand, my lord!
I have serv'd you ever since I was a child;
But better service have I never done you
Than now to bid you hold."
King Lear Act III, Scene 7
It seems there is some credibility in looking to Shakespeare to understand current politics.
The wonderful actor Simon Callow reviews Stephen Greenblatt's Shakespeare on Politics in the NY Times and discerns the character of the U.S. President in a number of Shakespeare's characters.
https://www.nytimes.com/2018/06/20/books/review/tyrant-stephen-greenblatt.html
The extract from King Lear above comes from the chilling scene where the servant tries to stay the hand of those horribly injuring Gloucester.
On Wednesday 20th June, it was 'Grieve II' that seemed to speak Shakespeare's lines in the context of UK politics.
The former Attorney General's concluding remarks can be heard from 14.58.00 on the link below:
https://parliamentlive.tv/Event/Index/4a5f543a-8cfe-495f-8942-a23dd4dce1f2
The important (but, it seems, overlooked) point he made prior to this was that Parliamentary Sovereignty would invest the Commons with powers up to a Vote of Confidence and it is likely that this potent avenue will be travelled some time after January 21st 2019.
Chris Bryant's subsequent contribution on the actual nature of the Government's preferred mechanism for Parliamentary input undermines the argument (made by, amongst others, Jacob Rees-Mogg) that a mere Amendment Motion could have significant constitutional impact.
The consequent hollow nature of the Government's re-shaping of Viscount Hailsham's Amendment will, based on the Government's current record of compromise, make Parliamentary conflict very likely in late January or early February 2019.
On Midsummer's Day there is only one Shakespeare play to draw from and perhaps the illusory wall reflects some of the transient, phantom, barriers to discussion that have plagued clarification of the UK's stance to a balanced Brexit position.
Thus have I, Wall, my part discharged so;
And, being done, thus Wall away doth go."
Midsummer Night's Dream, Act V, Scene I
Following shortly on the events in today's PMQs, Dennis Skinner,
Labour MP for Bolsover, helpfully offered his expert view on being thrown out
of the Commons in a Point of Order.
With a twinkle in his eye the esteemed parliamentary poacher provided the gamekeeper some insight into the matter of being asked to leave the House based on his own redoubtable experience.
The Emergency Workers' Bill has just completed Third Reading in the House of Commons and MPs Chris Bryant and Holly Walker-Lynch (MP for Halifax) have had their efforts congratulated with a suggestion that their approach will stand as a template for future efforts which often result in good ideas ending, if at all, in bad legislation.