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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Unparcelling Prorogues

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Edited by John Gynn, Thursday, 19 Sep 2019, 15:22

One of the UK's top QCs, expert in public law, has just indicated on social media, as Lord Pannick summarises on facts, law and remedy, that the UK Supreme Court will, in her view, accept the  arguments of the claimants'  (i.e Miller, Cherry et al).

A formidable spectrum of argument on behalf of the claimants, including from interveners, may have been helped, particularly, by Sir Edward Garnier (QC for Sir John Major) distinguishing prorogation as being justiciable ie amenable to judicial review.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Joanna Cherry QC MP and others v Advocate General [2019] CSIH 49:

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(Courtesy of the petitioners).

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Britannia waives the rules?

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Edited by John Gynn, Thursday, 12 Sep 2019, 17:56

From memory it was Billy Connolly who told of the shipyard bosses who were suspicious that their workers were pilfering items from the shipyard to sell in the local community.

So the bosses instituted a series of checks as people left for home. Old Tam seemed to be stopped almost every time he passed through the gates. His wheelbarrow was thoroughly checked for hidden items. But never was anything found.

It wasn’t until Tam’s funeral, many years later, that a company boss asked one of his colleagues how Tam had managed to feed and clothe such a large family as he had, so well as he had, when the company had never found any stolen gear in his wheelbarrow despite many careful searches.

That, replied Tam’s old colleague from the shipyard, was because he was selling wheelbarrows.


Is something similar afoot in the Westminster Parliament - with a seemingly innocuous amendment to the European Union (Withdrawal) (No. 6) Bill (sponsored by Hilary Benn and Lord Rooker) being smuggled past watchful eyes (particularly the diligent scrutiny of no-dealer Lord Forsyth who seems to have been fervently ferreting through this legislative wheelbarrow looking for contraband).

A parliamentary consensus coming from Commons’ back benches  – seemingly  independent of rather intransigent elements (including both front benches) – seems to be wheelbarrowing its way through the gates of this fractious Brexit debate.

One of the most peculiar moments in a most peculiar week in Westminster (the drama of cricket this summer surpassed only by events in politics) was the passing of an amendment - the ‘Kinnock amendment’ - which reflects the content of the cross-party talks that enhanced Mrs May’s bare withdrawal agreement, but were never debated in parliament.

The amendment was unusual because it passed without a formal vote because no tellers were presented to undertake a head count. Contrary to some reports, it seems it was not the government who failed to present tellers in the division lobbies as part of some genius tactical subterfuge from No.10.

In the Lords’ debate on Friday 6th September, Lord Forsyth (a devoutly pro-Brexit peer and not to be confused for an erudite lawyer like Lord Mackay of Clashfern - as (much respected) Lord Cormack explained to some laughter after a slip of identity) said:

“[I]t was… the promoters of the Bill who failed to provide tellers for the Division, which is how this [amendment] has ended up in the Bill”.

This may have been useful as it saved any Conservative rebels names being recorded as having supported the amendment. Given the zealous withdrawal of the Conservative Whip, that might have been of some reassurance to Conservative MPs wishing to support Mr Kinnock’s amendment.

Moreover nothing in the unusual way that the Kinnock amendment was incorporated into the bill (the omission of sponsors’ tellers) rendered it out of order.

Lord Mackay, a formidable legal expert, made that clear when the bill was subsequently considered in the Lords.

The point is reflected in what Sir Ivor Jennings writes in the 2nd edition of his book Parliament published in 1957.

Jennings writes: “The law knows nothing of the legislative process. An Act which appears on the Roll of Parliament as having been enacted by the Queen on the advice of the two Houses, or of the House of Commons alone under the Parliament Acts 1911 and 1949, is good law whatever the method adopted for its passage” (1957, p.237).

Lord Goldsmith, speaking for the Labour Party in the Lords, raised the question of whether No.10 could entirely be trusted given the prime minister’s comments that morning that he would not seek an extension to Art. 50 – even if that was an obligation placed on him by the legislation at hand. (The rule of law seeming, shamefully, to have temporarily been abandoned by No.10).

Lord True (another diligent advocate of exiting the EU who labelled himself an ‘inconvenient True’ in the Lords) put on the record that he had been under the impression through the ‘usual channels’ in the small hours of Thursday morning that the Kinnock amendment would be removed.

So some distinct machinations seem to be in play on all sides.

Lord Mackay noted that the Kinnock amendment distinguished between the withdrawal agreement (which will not be re-opened) and the political declaration (which can be reviewed).

The difficult question of providing a ‘backstop’, as insurance regarding sensitive border controls, said Lord Mackay was a part of the political declaration and did not affect the withdrawal agreement. The Kinnock amendment helpfully separated the withdrawal agreement and the political declaration and did so in a way that was perfectly understandable “even for lawyers” (cue chamber chuckles).

This observation has a very serious aspect because it indicates that any attempt to suggest that the provision is unclear or ambiguous in subsequent litigation at the hand of the government would be ill-conceived.

Lord Mackay then (at col. 1261) put the Bill and the amendment into context:

“The whole thing is a Private Member’s Bill by a group that was not part of the Government as such. It may have included Members who were previously in the Government, but at any rate it is not a government Bill. The Government therefore do not care for it at all, so I do not know why they should have to propose an amendment to part of it. It is perfectly right that they had not done so. I understand they have been advised that it is meaningless. I do not agree with that, and I do not think anybody who reads it will think it is meaningless; it is perfectly clear what is wanted. It is the basis on which an extension is asked for.

According to the formulation of the noble Lord, Lord Kerr, no conditions are attached. However, if you apply for an extension the European Union will require a reason—which seems to be common sense—and, if you give a reason, good faith suggests that that is the reason, and therefore it promotes the likelihood that something may suddenly emerge which distinguishes between the political formulation and the withdrawal agreement, which is the vital thing to get through in time.”

Lord Calanan, for the government, took a different line to Lord Mackay suggesting that the amendment was poorly drafted, inconsistent and would be inoperable. The government’s view may be coloured by politicking.

Lord Mackay’s is the better view. It allows the amendable political declaration to encompass the aspects of the cross-party withdrawal agreement bill that was never debated in parliament. Mrs May’s (separate) withdrawal agreement will remain intact.

Might there be a split in parliament as between, on the one hand, those advocating a no deal (hard) Brexit and, on the other hand, those who would vote for Mrs May’s withdrawal agreement (including Ministers such as Michael Gove) and consider an associated withdrawal bill with additional issues categorized under the political agreement?

Intriguingly, Mr. Gove previously worked with No.10’s chief special advisor (spad) Dominic Cummings but Mr Gove has, famously, had (possibly unresolved) disputes with Mr Johnson. Where this web of allegiances and bruised relationships has settled now is difficult to determine conclusively. It is possible that these pressures are operating in the current febrile climate.

Prime Minister Johnson seems to be keen to accommodate the wishes of the Conservative Party’s European Research Group who advocate a hard, no deal, Brexit. He also has Nigel Farage’s Brexit Party in his peripheral vision who entertain essentially the same perspective.

The prime minister’s chief spad, Dominic Cummings, is reported to have told a meeting on Friday 7th September that the people who are cross about his tactics “will melt” when they learn of what he has planned in coming weeks.

Whether this comment indicates a coming tactical masterstroke or simply bluster remains to be seen.

The controversial prorogation of the Westminster Parliament scheduled from 9th September to 14th October – among other things resetting the calendar of parliamentary sessions - allows the return of the withdrawal agreement itself, despite its having failed in a variety of nuanced forms on three previous occasions.

In the Commons Committee stage of the European Union (Withdrawal) (No. 6) Bill, on 04 September 2019, Volume 664, cols. 258-9, Mr Kinnock indicated that an amendment would encompass an extension to January 31st 2020. If completed before, even feasibly before 31st October depending on parliament’s schedule, that would be a bonus.

“The explicit purpose, we state, should be to pass a Brexit Bill, and, more specifically, to pass something similar to the withdrawal agreement Bill that was drafted in May 2019 as a result of cross-party talks.”

The crucial milestone is getting the withdrawal agreement bill past its second reading stage. The withdrawal agreement bill would encompass the cross-party talks in draft form but has yet to be published.

Mr Kinnock continued: “The cross-party talks gave the detail that we need. That was a direct result of the hard work of Opposition and Government Front Benchers and negotiating teams over the course of six weeks of serious talks. The concessions included a customs union compromise, with a binding vote on post-Brexit customs arrangements; a workers’ rights Bill that would guarantee that employment rights in the UK would not lag behind those of the EU; a pledge that the UK would see no change in the level of environmental protection after Brexit; a promise to seek as close to frictionless trade in goods with the EU as possible while being outside the single market and ending ​free movement; a commitment to having parliamentary time to allow for a vote at Committee stage on whether the deal should be put to a second referendum; an assurance to MPs that they must have the final say on the future UK’s relationship with the EU; and a promise that Northern Ireland would stay aligned with the rest of the UK on regulations and customs, even if the backstop were to come into force.”

So, from a moderate parliamentary consensus, we may have the reappearance of Mrs May’s withdrawal agreement (the instrument fixed as between the UK and the EU to ensure the UK’s orderly departure of the EU) in tandem with a withdrawal agreement bill which incorporates some enhanced cross-party add-ons categorized as part of the political agreement for future relations that can be amended. 

But some more entrenched, polarized, views may seek a more abrupt parting of ways,

Commons Committee stage of the European Union (Withdrawal) (No. 6) Bill, on 04 September 2019, Volume 664:


Report stage of the European Union (Withdrawal) (No. 6) Bill, 06 September 2019, Volume 799:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Erskine May now available online

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"Erskine May, often referred to as ‘the Bible of parliamentary procedure’ is both an iconic and practical publication. It’s the most authoritative and influential work on parliamentary procedure and constitutional conventions affecting Parliament. Rather than a set of rules, Erskine May is a description of how procedure in the House of Commons and House of Lords has evolved and the conventions that apply."


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Europe Day

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If you have a few moments to spare, this video clip, shows a ‘flash mob’ emerging onto a Spanish square to play ‘Ode to Joy’ from the fourth movement of Beethoven’s Ninth symphony.

It's quite a nice way to mark Europe Day:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Only sidewise movement

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Edited by John Gynn, Tuesday, 2 Apr 2019, 07:43

Mark Twain could have been writing about Brexit and the Commons' indicative vote process when he described the tense stand-off between Tom Sawyer and the boy who had shoes on (even though it was only Friday) on a summer evening in the little shabby village of St. Petersburg Missouri.

“If one moved, the other moved — but only sidewise, in a circle; they kept face to face and eye to eye all the time. Finally Tom said: ‘I can lick you!’ ‘I’d like to see you try it.’ ‘Well, I can do it.’ ‘No you can’t, either.’ ‘Yes I can.’ ‘No you can’t.’ ‘I can.’ ‘You can’t.’ ‘Can!’ ‘Can’t!’”

(The Adventures of Tom Sawyer, Chapter 1).

Mark Twain's Tom Sawyer Chapter 1

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

The Original Brexit Day: 11 am & 11 pm

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If the Government introduces the Withdrawal & Implementation Bill later today (with business scheduled, unusually, for a Friday sitting of the Commons in light of the Brexit crisis with the delay to the original departure time today at 11 pm) the Leader of the House may, somehow, endeavour to facilitate an alteration to key section 13 of the European Union (Withdrawal) Act 2018 to allow the Withdrawal Agreement to be passed before 11 pm.

Might the framework for the future relationship, which forms an integral part of the package along with the Withdrawal Agreement, somehow be smuggled through even though - in order to allow a third 'meaningful vote' (MV3)  - it has been separated from the Withdrawal Agreement? (The Withdrawal Agreement being something of a Trojan Horse within which the Political Declaration is secreted?)

The Leader of the House will accord with the Speaker's ruling on MV3 - that has been made explicit - but what is not clear is if or how Section 13 might be altered. However the Leader of the House (Andrea Leadsom) has hinted that the Government may operate "within the spirit" of the Withdrawal Agreement. 

That makes for rather spectral and ethereal parameters of Government maneuvering.

There is a scheduled window at 11 am for Urgent Questions which might be worth watching as that may be a moment when matters have become a little clearer.

How the political machinations will play out remains to be seen but it seems as possible that the Government's deal will be passed before 11 pm (with some cunning procedural tactics) as it is that the ERG & DUP have outflanked the Government to secure a 'no deal' Brexit (by equal cunning) with a pro-Brexit Prime Minister and Cabinet positioned to take up the baton in the subsequent negotiations.

The former may be the front-runner as at this moment but anything might happen in the day's proceedings.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Amendment H looking fragile

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Kier Starmer appears to be saying that, while Her Majestys Opposition will accord with their policy determined at Party Conference in 2018 to seek a second popular vote on the question of EU membership, "today is not the day".

Consequently, having earlier led to the Speaker's partiality being called into question from the floor of the House by Bernard Jenkin, amendment H looks like it will fall this evening.

The political machinations in play are doing little to offer any filtering of feasible solutions to the present dilemmas of choice.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

The end of 1001 Nights...

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The Prime Minister is in Strasbourg tonight as determined to keep her narrative alive as if a modern Scheherazade.

She began by releasing the Genie from the bottle when she triggered Article 50 of the Treaty on European Union.

“Tell on,” quoth the King who chanced to be sleepless and restless and therefore was pleased with the prospect of hearing her story. So Shahrazad rejoiced; and thus, on the first night of the Thousand Nights and a Night, she began with the Tale of the Trader and the Jinni.”


The mood in the House of Commons tonight has been as sepulchral as the House of Lamentations as vexed and angry as the wife of the Lord of the Black Islands in the Tale of the Enscorcelled Prince.

The Fisherman became the richest man of his age in that tale but it turned out that that tale was not more wondrous than the story of The Porter and the Three Ladies of Baghdad... and so on and on went Scheherazade's seemingly endless tales as she vied to keep a grim fate a dawn's length away.

Eventually Schehrazade had no more words to offer.

“At the end of 1001 nights, and 1000 stories, Scheherazade told the king that she had no more tales to tell him. During these 1001 nights, the king had fallen in love with Scheherazade. He spared her life, and made her his queen”.

Mrs May meets President Juncker

 Nearing the end of the 1001 nights the relationship looked warm but was there love?

“Shahrázád” (Persian) = City-freer, in the older version Scheherazade (probably both from Shirzád = lion-born). 

Will the Modern Scheherazade be a 'freer' of cities or has she 'walled the horizon' as the camels' dust cloudes do in Richard F. Burton's translation in The Second Kalandar's Tale?

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Hot off the Press

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House of Commons Digital, Culture, Media and Sport Committee Disinformation and ‘fake news’: Final Report Eighth Report of Session 2017–19 Report, together with formal minutes relating to the report


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Care Day 2019.

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Today is Care Day 2019.

Care Day takes place on the third Friday in February each year.  It is now recognised across the UK and internationally as an opportunity to celebrate the lives and voices of care-experienced people.

The first Care Day took place in 2015 to commemorate the one-year anniversary of the Scottish Parliament's unanimous passing of the Children and Young People (Scotland) Bill 2014.

Who Cares? Scotland is a national voluntary organisation, working with care experienced young people and care leavers across Scotland.


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

A Persistent Shadow?

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Phil Connors (Bill Murray) : Do you ever have déjà vu, Mrs. Lancaster?

Mrs. Lancaster : I don't think so, but I could check with the kitchen.

Bill Murray runs in snow in Groundhog Day

Phil Connors (Bill Murray) in Groundhog Day 1993

February 2nd, last Saturday, was Groundhog Day, a notable date in the calendar of enthralling Pennsylvanian Dutch superstition, when signs of any shadow cast by the furry creature Punxsutawney Phil forecast the release of winter’s icy grip and the emergence of spring.

The crucial part of, “the true excitement of a large squirrel predicting the weather”, is that, if the shadow of the bewildered Marmota monax is seen, winter will persist.

In the wonderful 1992 movie Groundhog Day, the weary weatherman Phil Connors – played magnificently by the dead-pan Bill Murray  – is captured in a seemingly endless narrative as the same day repeats itself over and over again.

The early bulletin on the morning news broadcast to which his radio is tuned, turns, endlessly, to the exactly the same discussion.

Many who have become sufficiently accustomed now so as to barely flinch as they hear the latest Brexit spasm ooze from their own radio news, earnestly seeking the emergence of spring in the same stagnating political narrative each and every morning, will likely empathize with the weary weatherman Phil Connors.


Marmota monax or Groundhog

Yesterday, February 7th, was the 207th anniversary of the birthday of Charles Dickens.

Dickens’ story Bleak House, published in the early 1850s, centres on the seemingly interminable process of litigation in the early 19th century Chancery Division.

Bleak House has no small measure of Groundhog Day about it. The case progresses with all the fluidity of treacle left outside in a Pennsylvanian winter.

In his preface to the tale, Dickens writes: “At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun. There is another well-known suit in Chancery, not yet decided, which was commenced before the close of the last century and in which more than double the amount of seventy thousand pounds has been swallowed up in costs. If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages, to the shame of—a parsimonious public.”

If Dickens was alive today he would surely hear the dull echo of the Chancery’s pedantic Victorian dispute resolution in Jarndyce and Jarndyce resonating, with equivalent fervour, from Augustus Pugin’s Westminster panelling in a contemporary Gothic revival within current political process.

Dickens opens his story with a fossilized scene which refuses to admit natural extinction. It is not at all impossible that the legal and political landscape will yet continue to be haunted by similar Jurassic spectres of party politics like a shadow cast upon the sunlit uplands of Brexit rhetoric.



“London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln's Inn Hall. Implacable November weather. As much mud in the streets as if the waters had but newly retired from the face of the earth, and it would not be wonderful to meet a Megalosaurus, forty feet long or so, waddling like an elephantine lizard up Holborn Hill. Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes—gone into mourning, one might imagine, for the death of the sun.”

(Charles Dickens, Bleak House, opening passage)

Images from Britannia Imagequest

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The neglected historical context of the EU & Brexit

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Close to the 54th anniversary of the death of Sir Winston Churchill, the (excellent) Inaugural Lecture by Professor Beatrice Heuser School of Social & Political Sciences at the University of Glasgow titled Brexit in Historical Context: Sovereignty v the European Union (21st January 2019).


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The Human Rights Watch Annual World Report 2019, released today at 9.00 am, notes the commendable, proactive, role taken by Germany in addressing human rights abuses across the world as the UK has been navel-gazing, entirely pre-occupied with Brexit.


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Bills, Bills, Bills.

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Here (at 12.58.05), in under 30 seconds, is the former Attorney General and MP for Beaconsfield, Dominic Grieve, introducing two Presentation Bills today:


They are of no small current interest. The two bills are (1) the European Union (Preparation) Bill and (2) a European Union Referendum Bill.

By chance, immediately after, another Bill is introduced under the 10 Minute Rule procedure.

The ‘Low-Level Letterboxes (Prohibition) Bill’.

One distinguished legal commentator quipped yesterday that it could “quickly be amended to become the Banning of Low-level Letterboxes and Extension of Article 50 Bill”.

It's not abundantly clear if he was aware then of the proximity of Dominic Grieve’s Presentation Bill.

The icing on the cake of these curious examples of parliamentary procedure follows the 10 Minute Rule Bill as the Leader of the Opposition speaks to the Motion of No Confidence in H.M. Government he has tabled.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

The height of ideological differences

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Edited by John Gynn, Wednesday, 16 Jan 2019, 14:07

In the debate on the Labour leader's Motion that the House has no confidence in Her Majesty's Government, Mark Francois, deputy chair of the pro-Brexit European Research Group (the 'ERG') appeared to be standing up especially to note that he and the Prime Minister had "not always seen eye-to-eye" on the matter of Brexit.

A heckle arising from his own benches rang across the Chamber:

"That's because she's taller than you".

More widely and much more importantly, there does seem to be a fairly evident cross-bench current pointing to the benefits of a customs union. Whether or not this will be accommodated by any revision of the Prime Minister's 'red lines' - which presently exclude the possibility of remaining in the customs union - remains to be seen.

One determining factor is likely to be the position adopted by the DUP on that particular matter.

An underlying current is concern over the Orders of the House and their application and observance with particular concern focused on the pairing system that allows an MP to be excluded from the need to vote in extenuating circumstances by arranging for an MP who will vote in opposition to the indisposed member to withhold their vote in recognition of the benefit to any parliamentary representative who might, on very reasonable grounds, be unable to attend the vote without impact on their health.

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Flouncing: The House Divides

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Perhaps it is when parliamentary tensions are at their most acute that moments of good humour have particular value.

In answering questions in the House of Commons following a Business Statement on the 10th January, the Leader of the House, Andrea Leadsom, was asked, by Labour MP Chris Bryant, whether it might be wise to delay the UK’s EU departure date.

Mr Bryant said that, with the anticipated Second Reading of the EU Withdrawal Implementation Bill before Christmas (as the solicitor General had indicated) now unlikely to take place until at least the 28th January - if the Government proceeds with the Meaningful Vote next Tuesday as planned,  would the Government seriously consider that they may have to delay the 29th March departure date.

Mr Bryant began:

“Mr Speaker I don’t think there’s anything wrong with a good flounce and sometimes it’s useful but I don’t think we should flounce out of the European Union”

This harks back to a minor parliamentary kerfuffle in December:


The Leader of the House responded to Mr. Bryant:

“Well first of all can I simply concede to the honourable gentleman that he’d be a better flouncer than me in all circumstances”.

She was interrupted by Mr. Bryant’s prompt call of “Division!” to settle the point by a vote of the Chamber.

A very welcome moment of convivial good humour rippled across the benches.

Transcript from col. 559:


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Who has control when ‘taking back control’?

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Edited by John Gynn, Thursday, 10 Jan 2019, 20:18

In A Business Statement today the Leader of the House, Andrea Leadsom, MP for South Northamptonshire, seems to have decided not to let lie the contested issues arising in yesterday’s fractious Points of Order.

Northamptonshire is, of course, the county famed for the quality of its cobblers.

There is more than a little that is (understandably) personal in the persistence shown by the Leader of the House. In May 2018, Andrea Leadsom’s parliamentary reputation was, if not charred, at least singed, in a less than flattering aside regarding the merits of some issues she had been discussing in May 2018:


The parliamentary flames have been fuelled by a tension between the Government’s determinedly (perhaps obsessively) strict shepherding of Parliamentary business relating to the parliamentary process of withdrawal from the EU- with all the delicacy of a frantic sheep dip - and the concerns, more widely in the Commons, that the process is so frenetic as to be unedifying: Sheep are being dipped backwards, sideways and upside-down.

The Executive seems to have unilaterally bagged exclusive ‘control’ - now crystallizing in parliamentary scheduling as it is absorbed from the referendum rhetoric. The subtle emphasis in control like a wraith manifesting from swirling sulphurous smoke.

It is as if the Government has been bewitched by the notion of ‘control’ as if it were some Arkenstone or Ring of Power from the imagination of J.R.R. Tolkein.

The widespread concern in the Commons - regarding the obsessive shepherding of the parliamentary schedule  - encompasses politicians from across the party spectrum including several, at least, from the Government’s own back benches.

Overwhelmed by the proximity of control Mrs. May seems to be suffering from the treasure sickness that befell Thorin Oakenshield in Tolkein’s ‘The Hobbit’.

Reports indicate that the Prime Minister is unwilling to countenance counsel even from her own Cabinet. Those with a (justifiable) claim to the treasures released from the clutches of the Dragon (SmEUg?) have gathered like the assembled coalition at the gates of the Lonely Mountain to argue for a share of the spoils against an intransigent Theresa/Thorin.

But the Government have the high ground. Like Thorin and his dwarves, they are in a formidable, near impregnable, defensive position.

Mrs May and the Leader of the House certainly have dominant control of the parliamentary schedule. Moreover the Government is construing the rule book that helps to regulate their control of business in a manner that takes literal interpretation to a new level.

For example, the Leader of the House argued for a literal interpretation to be given to the words of parliamentary process in Erskine May that had sparked the flames in yesterday’s Points of Order:

“If the honourable gentleman looks at Erskine May he will see that ‘forthwith’ means unamendable and not debatable”. She continued by asserting that the role of the Speaker is to uphold the rules of the House not “arbitrarily” to change them

The Speaker, forthrightly and immediately, challenged any suggestion that there had been anything arbitrary in what was done.

There might be some, tenuous, legitimacy for an Executive to seek to maintain the rigidity of the rulebook in its favour where it has a significant majority.

For a minority Government, supported by a minority party, to dominate Parliament runs counter to proper parliamentary balance. That is for the tail to wag the dog.

Particularly in such circumstances, there is an exceptionally strong argument that the Speaker is entitled to adopt something of a purposive approach in interpreting the rules of parliamentary procedure in order to address any constitutional imbalance arising from the dominant parliamentary position held by a minority.

To do otherwise would be to reflect Lord Hailsham’s elective dictatorship in the form of a minority Executive with tyrannical control over parliamentary business.

The same Speaker who, in 2013, selected an amendment which gave impetus to the movement that saw the EU referendum take place can hardly be charged with partiality.

Nancy Pelosi, a similarly forceful speaker in circumstances that are not too different, is set to undertake very much the same role in balancing the constitutional bow-waves caused by an Executive bent on using emergency powers in order to implement their policy.

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Handbook of parliamentary process

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Practical, clearly written guidance on House of Commons procedure for MPs and their staff is published today.

Some links (e.g. to Erskine May) don't seem to be generally operative:


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The storm after the storm

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“It is not the fashion to see the lady the epilogue; but it is no more unhandsome than to see the lord the prologue.” As You Like It, Epilogue, Rosalind.

In the present climate, the Points of Order on procedure that follow Prime Minster's Questions each Wednesday, have clearly been outshining any residual theatre in the regurgitated rhetoric of the Brexit debate.

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Christmas Eve puzzle solved?

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Edited by John Gynn, Monday, 24 Dec 2018, 20:50

The residents of Tyne and Wear woke today to discover that Antony Gormley's colossal statue the Angel of the North was wearing a Christmas hat.

The Angel of the North with a Christmas hat on its head


This seems to be strikingly similar to the cautionary cone chapeau traditionally associated with the Duke of Wellington, seated on his horse Copenhagen, at Glasgow's Exchange Square.

Duke of Wellington, Glasgow, with cone hat

The video clip on the newspaper web page below, circulated online in 2013, might, possibly, go some way to explaining the mystery behind the Angel of the North's Christmas look - it's just a matter of statuary interpretation.


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Judgment in Case C-621/18

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Edited by John Gynn, Monday, 10 Dec 2018, 12:58

'Big Ben' clock face

"It had been a close shave, but I had been in time". 

Judgment in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union has followed the Opinion of the Advocate General, though with slight nuance. 

The nuance a little below but the main thrust of the judgment distilled to its essentials is:

“[G]iven that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will.” (para. 65).

Interestingly this refers to the 'will of the state' yet in the preceding paragraph, the focus falls upon individuals:

“It must also be noted that, since citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, to that effect, judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 25; and of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 43), any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States.”

This brushes up against a constitutional conundrum without resolving it: The contested notion of the ‘will of the people’ and the true consequences of a public debate that has, at least partly, been shaped by interests that may not always align with the interests of either the state or the its individuals. 

That is not to say that state interests are not well served. However it may not be the interests of the UK or its fellow EU member states but the interests of states outside of the EU that are best satisfied. Equally, the self-interest of a few influential individuals (whether economic or political) must be distinguished from individual interests (such as inure within EU citizenship) more widely. Andy Serkis's recent depiction of Kipling's Jungle Book portrays such competing interests in a very entertaining, if chilling, way.

At risk of making this blog even more like a penny novelette this part of the Court's judgment reminds me of the moment in John Buchan's Thirty-nine Steps when Richard Hannay bursts into Sir Walter Bullivant's home sanctuary to warn him of the 'Black Stone' organisation as Hannay suddenly realizes what is at stake:

"The door of the back room opened, and the First Sea Lord came out. He walked past me, and in passing he glanced in my direction, and for a second we looked each other in the face. Only for a second, but it was enough to make my heart jump. I had never seen the great man before, and he had never seen me. But in that fraction of time something sprang into his eyes, and that something was recognition. You can’t mistake it. It is a flicker, a spark of light, a minute shade of difference which means one thing and one thing only."

But back to the nuances within the main thrust of the Court’s judgment:

A return to the status quo ante

It is made explicit that if a member state chooses, following Article 50 notification of withdrawal, to reverse  its decision, pre-existing conditions of membership are not affected.

This is an enormously significant aspect of the judgment. It was not at all certain that this would be the case and it could have been that membership following a reversal from article 50 notification would be based on revised terms. The Court's reassurance here is important.

Tempus fugit

However the Court’s judgment has a little more 'chronological urgency' than the formulation provided by the Advocate General.

The Press Summary notes: “ That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired."

The dispositif:

“Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.”

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

O tempora o mores!

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Surely not...


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Opinion Rumour Dissolves

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Rumour yesterday - that the Opinion of Advocate General Campos Sánchez-Bordon had been leaked to the Department for Exiting the EU in Westminster (which rumour suggested that the unilateral consent of the EU Council would be required for the UK to reverse its decision to leave the EU) - has been proved simply that; a rumour.

Instead the A-G's Opinion is quite different:

Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU

The Opinion of an A-G does not have the legal effect that the subsequent decision of the Court of Justice of the EU will have, nor is the Opinion binding on the Court but the A-G's Opinion does usually point to the Court's likely approach in due course.

Advocate General’s Opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Around the 'Meaningful Vote'

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From the Commons Library a guide that -

"sets out what we expect to happen in the coming days in the lead-up to the Commons’ “meaningful vote” on the deal. It also explains what to look out for once the Commons has taken its decision on 11 December."


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