Brexit related judicial reviews: Supreme Court | Judgment: Prorogation was unlawful

[owlo]

My first redcafe thread!

Personal disclaimers: I am not related to the case, have no money invested yet in either side, and am not a qualified lawyer. No QC or judge within my direct or extended family are involved in the case.

What is it about?

The government have prorogued parliament for 5 weeks, ostensibly to implement a Queens speech and start a new session. Opposition have stated that he has done so to deny parliament a say on Brexit and stymy debate and supervision of the executive.

They therefore are challenging the advice the Prime Minister gave to the Queen to progogue parliament (known as a pregogative power). The question: Was this advice lawful or unlawful?

How has it been ruled so far?

The High Court of England has ruled for the government, stating that it is not justiciable. (more on this later)

The Court of Session in Scotland has ruled against the government, stating that not only is it justiciable, but unlawful.

So what happens now?

Beginning Tuesday, 11 justices of the Supreme Court will begin to hear the case. (The SC website states 9, but this has now been upgraded to 11 - Only Lord Briggs will be missing)

They will hear all the appeals together, and decide on a ruling.

What will the case involve?

In general, the judiciary gives the government a lot of leeway with prerogative powers, as they are often seen as political instead of legal. There is an argument that the court are not qualified to rule on what is essentially a political issue. This is known as justiciability.

The divisional court has ruled that 'length of prorogation' is too abstract a concept to rule on, as it is a matter of politics not law. Therefore it is unjusticiable.

This is the first matter the SC must decide.

IF the case is justiciable, the court must decide whether the advice given was unlawful and disingenuous. One might claim that this is a slam dunk, given the circumstantial evidence against the government, but these things are never so simple.

What happens in the event of a judgment?

If the Court decides for the government, the prorogation is legal and no further action is taken.
If the Court decides against the government, it is likely though not certain that the government would recall parliament.

 

[owlo]

So what will be decided?

The majority of commentators have come out in the last few days with bits and bobs of analysis about the case.

The general consensus is that the government is going to be fighting the justiciability issue mainly, as if the court rules it justiciable, they are screwed as the evidence is so strongly against them.

Many many QC's and academics have come out with this view.

In the words of Matthew Ryder QC - 'This is really bad.'

Others have come out to support this opinion, and there does not seem to be much of an opinion against. This is why the court fight will be over justiciability.

So is it justiciable and what will the government argue?

Let's start with the dissenting opinion of 'No.'

The government WILL bring forwards the following arguments:

1) Prorogation entails high policy and politics. Therefore it is political, and the courts should not concern themselves.

2) The court cannot intervene on prorogation, as any legal test applied would be political intrusion. There is no judicial control on prerogative powers.

3) Parliament already managed to pass legislation, therefore there is no problem with prorogation. They can move fast when they choose to do so.

4) General constitutional principles are just that, they are not actionable in law.

5) The court has no authority to enforce its own view on 'good governance'

Additionally they may argue:

6) Though the prime ministers advice was unlawful, the prorogation itself was not, therefore the court cannon 'unprorogue'

Richard Ekins wrote an article in the Spectator setting out some of these points.

This was also the fairly established traditional view before the case was brought, so what has changed, and what are people saying now?

The first thing to note, is that instead of sitting as 5,7, or 9 justices the Supreme Court is sitting in its entirety with only a single justice missing out. This is not unprecedented but extremely unusual. The inferences to this I'll leave with the reader. (My own thoughts)

Now we shall examine why it could be justiciable.

1) is the main thrust of the governnents argument, and one the Divisional Court accepted when it ruled the case non justiciable.

The reason for prorogation was however in the words of the CoS judges "…to stymie Parliamentary scrutiny of Government action. Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar." and therefore justiciable.

Now no government power can be unlimited or executed unfettered, and therefore have limits and boundaries. There is no reason why this should not apply in the case of prorogation powers, and therefore it follows that "those powers are legally limited, among other things, by reference to the purposes for which they may and may not legitimately be used. What those purposes are is a legal question for determination by courts in the ordinary way."

In the case of prerogative powers, there's no book to tell you exactly the limits of what they can and cannot do, therefore it's harder to determine. However it does not follow from this eithrt that no boundaries exist, nor that they should not be resolved in the normal legal way.

Assuming the evidentiary question of 'why did he prorogue parliament?' is answered in the same way as the Court of Session answered it - 'To stymie parliamentary scrutiny' - there are then 2 simple legal questions that we come to:

1) Is stymying parliamentary scrutiny a purpose to lawfully exercise the prorogation power?
2) Can the court deal with this, or is it non justiciable?

The first question is quite a simple "No" - The executive cannot lawfully prorogue parliament to shelter it from scrutiny.

Now to the question of Justiciability. As Allison young points out, it is NOT standing the question on its head to consider these issues first, before considering whether they are justiciable. The divisional court has erred in this instance. You cannot ask "Is it justiciable?" in a vaccum, as shown the CCSU/GCHQ cases and the young case.

Secondly, after covering this analysis, we surely realise that the case is justiciable. Paul Craig points out that prorogation is not high policy, and 99% of the time is a purely mundane instrument for rebooting a parliamentary session. Furthermore, is a mundane discretionary power IS used for nefarious purposes this is surely jucticiable. Courts deal with it all the time.

Lastly, on the divisional courts decision that since parliament managed to pass legislation in time it is not being stymied. This is simply incorrect. The Paul Craig article deals with the above too.

Therefore, I think the Supreme Court are going to rule against the government unanimously, or with the minimal dissenting opinion.

 

[unchanged_lineup]

Tuesday, is it?

 

[owlo]

Tuesday, is it?

https://www.supremecourt.uk/news/brexit-related-judicial-review-cases.html

I'll embed the link in the OP.

 

[unchanged_lineup]

https://www.supremecourt.uk/news/brexit-related-judicial-review-cases.html

I'll embed the link in the OP.

I'll be keeping an eye on it for sure.

 

[esmufc07]

Interesting.

Will the decision be given on the Tuesday or is that just when they meet?

 

[golden_blunder]

Thanks @owlo
Too important to be hidden in a thread debating everything brexit
Gonna be an interesting couple of days!

 

[Dumbstar]

Yep good thread owlo.

 

[SteveJ]

Will the decision be given on the Tuesday or is that just when they meet?

It could take up to two weeks, though most commentators think it'll be decided much more swiftly.

 

[owlo]

Updated now in 2nd post with a brief outline and some nice links to lead. @sun_tzu @Maticmaker @horsechoker @T00lsh3d and anybody else interested.

Apologies it wasn't done earlier; was too big a job to do in one go

 

[T00lsh3d]

Updated now in 2nd post with a brief outline and some nice links to lead. @sun_tzu @Maticmaker @horsechoker @T00lsh3d and anybody else interested.

Apologies it wasn't done earlier; was too big a job to do in one go

Good post. I know precious sod all about the subject matter (actually I now know a little more than I did) but I just can’t see it going against the government. Will have a private small stakes bet with you if you think it will. At least your effort in making the thread might be rewarded

 

[Full bodied red]

So who will they arrest first ?

The Queen, who authorised it, or the Queen's Ministers who carried out her authorisation and instructions ?

These Remainers just never give up, do they....

 

[Kentonio]

Excellent threat owlo! I don't see how Johnson survives if this comes back against him. Deliberately and unlawfully lying to the sovereign has to be cause for removal from office. How could she trust any future advice if this was proven?

 

[Full bodied red]

Excellent threat owlo! I don't see how Johnson survives if this comes back against him. Deliberately and unlawfully lying to the sovereign has to be cause for removal from office. How could she trust any future advice if this was proven?

Why should she be treated any differently by politicians than the rest of us peasants.

I seem to recall Blair having the Queen say at the opening of Parliament that her Government would hold a referendum on EU membership when he had zero intent of holding a referendum. And bombing Iraq because of the still-not-found WMD. If you want to talk about liars....

How about all the ex-Tory and ex-Labour now Liberal Anti-Democrats who were elected on Manifestos of implementing Art 50 ? And are suffciently anti-democratic to refuse to stand in by-elections nor implement Art 50. They weren't lying ??

All politicians are liars, just that some are far more brazen liars than others....

 

[GloryHunter07]

I cant see the Supreme Court going against the Government on this. Would be funny though.

 

[Full bodied red]

I cant see the Supreme Court going against the Government on this. Would be funny though.

Strangely, I can.

The overwhelming majority ( in England - not Scotland, Wales and Ireland ) of EU sympathisers are the Champagne Socialists, the Liberal Elite, the 'I'm-Socialist-because-I-can-afford-to-be ' media luvvies. etc.

The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again, just to keep the rest of the proletariat in their place and punish them for daring to voice an opinion contrary to the established order.

Hope I'm wrong, of course, but even if I am, these people will try yet another way, and then yet another way after that, and then some more, because apparently they're so thick that they can't count past 48 so don't know that 52 is more than 48.

 

[Hammerfell]

Strangely, I can.

The overwhelming majority ( in England - not Scotland, Wales and Ireland ) of EU sympathisers are the Champagne Socialists, the Liberal Elite, the 'I'm-Socialist-because-I-can-afford-to-be ' media luvvies. etc.

The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again, just to keep the rest of the proletariat in their place and punish them for daring to voice an opinion contrary to the established order.

Hope I'm wrong, of course, but even if I am, these people will try yet another way, and then yet another way after that, and then some more, because apparently they're so thick that they can't count past 48 so don't know that 52 is more than 48.

You seem like a lovely guy.

 

[Full bodied red]

I am...Until someone brings up anything to do with the EU.

And then I can be just as big an arsehole as the Brexit anti-democrats.

 

[owlo]

Strangely, I can.

The overwhelming majority ( in England - not Scotland, Wales and Ireland ) of EU sympathisers are the Champagne Socialists, the Liberal Elite, the 'I'm-Socialist-because-I-can-afford-to-be ' media luvvies. etc.

The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again, just to keep the rest of the proletariat in their place and punish them for daring to voice an opinion contrary to the established order.

Hope I'm wrong, of course, but even if I am, these people will try yet another way, and then yet another way after that, and then some more, because apparently they're so thick that they can't count past 48 so don't know that 52 is more than 48.

The attacks on the judiciary are baseless, unwarranted, and foolhardy. They will uphold the law; nothing more, nothing less. This is not about brexit, but about lying to the queen and stymying democracy. Yes, we live in a representative democracy.

Now stop derailing the thread with your pointless brexit rants.

 

[Full bodied red]

The attacks on the judiciary are baseless, unwarranted, and foolhardy. They will uphold the law; nothing more, nothing less. This is not about brexit, but about lying to the queen and stymying democracy. Yes, we live in a representative democracy.

Now stop derailing the thread with your pointless brexit rants.

Yeah....Sure....

Your own anti-Brexit rants on the other thread suggest that even you, yourself, don't believe that for one second. If you do....Well you're sort of proving my point for me.

Who has brought this case as far as the SC ?? The Brexit supporters or the anti-Brexit groups. You have one chance to answer....

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

When the Mods appoint you as gatekeeper, I'll follow your instructions.

 

[Wibble]

Thanks @owlo
Too important to be hidden in a thread debating everything brexit
Gonna be an interesting couple of days!

It should be in the Brexit thread under normal circumstances but the Brexit thread is far from normal.

 

[Wibble]

Yeah....Sure....

Your own anti-Brexit rants on the other thread suggest that even you, yourself, don't believe that for one second. If you do....Well you're sort of proving my point for me.

Who has brought this case a far as the SC ?? The Brexit supporters or the anti-Brexit groups. You have one chance to answer....

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

When the Mods appoint you as gatekeeper, I'll follow your instructions.

There is no law against lying to the Queen. Boris won't be charged with monarch bullshiting. Do you really have so little understanding of what is going on to really think that is a thing?

The lie caused democracy to be bypassed under false pretenses and that is what the Scottish court ruled. Owlo has very evenly discussed the case and listed the potential outcomes in the High Court. You have come in here with pro-Brexit rants with no point other than to prevent mature discussion. Stop it or I'll thread ban you.

 

[Full bodied red]

You and I have totally different opinions on the merits of the EU and, by association, Brexit, and have crossed swords many times over the past few years.

We're unlikely to ever see eye-to-eye, but threatening to ban me from a thread because I have a different opinion than 95% of the posters on here regarding the EU and Brexit is not needed as I will not post on this thread again as it's fairly obvious that we're not allowed to have different opinions otherwise we might not actually be allowed to post on threads about United.

A few anti-EU / pro-Brexit mods wouldn't go amiss....

 

[GloryHunter07]

Yeah....Sure....

Your own anti-Brexit rants on the other thread suggest that even you, yourself, don't believe that for one second. If you do....Well you're sort of proving my point for me.

Who has brought this case as far as the SC ?? The Brexit supporters or the anti-Brexit groups. You have one chance to answer....

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

When the Mods appoint you as gatekeeper, I'll follow your instructions.

I see.. its all a liberal conspiracy. Gotcha.

 

[Wibble]

You and I have totally different opinions on the merits of the EU and, by association, Brexit, and have crossed swords many times over the past few years.

We're unlikely to ever see eye-to-eye, but threatening to ban me from a thread because I have a different opinion than 95% of the posters on here regarding the EU and Brexit is not needed as I will not post on this thread again as it's fairly obvious that we're not allowed to have different opinions otherwise we might not actually be allowed to post on threads about United.

A few anti-EU / pro-Brexit mods wouldn't go amiss....

It is nothing to do with being pro or anti-Brexit. You aren't even attempting to discuss the actual legal issues of the case and that is the point of this thread and why it has been allowed outside of the Brexit thread.

 

[Ekkie Thump]

Yeah....Sure....

Your own anti-Brexit rants on the other thread suggest that even you, yourself, don't believe that for one second. If you do....Well you're sort of proving my point for me.

Who has brought this case as far as the SC ?? The Brexit supporters or the anti-Brexit groups. You have one chance to answer....

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

It's all legalistic and a bit vague. Part of the constitution (as outlined through tradition, statute and precedent) is the principle of good governance and that principle remains central even (or especially) as it relates to the wielding of prerogative power. This can be demonstrated by a continuous history of legal judgments that have struck down uses of the prerogative that were found to be at odds with it. It's certainly true that this 'principle' is amorphous and open to interpretation (hence the current legal wrangle) but there does seem to be both legal and political force to the argument that this principle (and constitutional law generally) recognises the primacy of parliament and protects its power to scrutinise the executive. If that argument wins through then any government that wields the power of prorogation merely to undercut parliament and evade parliamentary scrutiny would have acted unconstitutionally.

This is the first time a case of this specific kind has been brought so in determining whether or not the court has jurisdiction (whether a legal principle is at stake) the court will automatically create a new precedent - in effect formulating a new law, but one that has been manufactured from the legal principles underpinning this country and which (you would hope) naturally springs from previous judgments. Only once the court is satisfied that there is a constitutional principle at stake can the government be tried for being in breach of it.

If the court decides there is a principle at stake and that the government is in breach of it then it's not simply that Boris, Mogg et al lied to the queen. It's that their reasons for doing so, ie their underlying motives, were at odds with the principles of good governance (as defined by law) and so were unconstitutional.

As to who brought the case, obviously anti-brexit groups whose ultimate objective is to prevent the UK leaving the EU. There doesn't seem to be much relevance to be had in bringing up the motives of the petitioners if they are found to be right in law though.

 

[Ekkie Thump]

I do think Full Bodied's opinion is symptomatic of what's going to happen though. If the Court does find against the government cries of judicial activism will likely fly through the roof and the judiciary itself will become a political football. The court knows this, and can't be looking forward to undermining public trust in its impartiality. It's a hell of a decision to have to make, but i guess that's why they wear the big wigs.

 

[Classical Mechanic]

The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again, just to keep the rest of the proletariat in their place and punish them for daring to voice an opinion contrary to the established order.

I'd bet that at the elite level most of them are Tories and on the right.

 

[Full bodied red]

It is nothing to do with being pro or anti-Brexit. You aren't even attempting to discuss the actual legal issues of the case and that is the point of this thread and why it has been allowed outside of the Brexit thread.

Yes I know I said...

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

Discussing the legal aspects of this case is exactly what I did do.

 

[owlo]

This is the first time a case of this specific kind has been brought so in determining whether or not the court has jurisdiction (whether a legal principle is at stake) the court will automatically create a new precedent - in effect formulating a new law, but one that has been manufactured from the legal principles underpinning this country and which (you would hope) naturally springs from previous judgments. Only once the court is satisfied that there is a constitutional principle at stake can the government be tried for being in breach of it.

Just a few words on this as I almost included it in the analysis but then decided not to bother. I'll mention here as a kinda sideways point. Statutory construction is the method that we use for these things: everything is examined, and it's decided how the power is lawfully/unlawfully used. It frequently relies on broad constitutional texts, so this will not be unusual in this case. From this juncture (of deciding how prorogation advice can/cannot be used, once we have determined the power is not unlimited) we can start to construct those boundaries of the power. [Exactly the same way as we do a statute, though with no textual beginning]

This speaks strongly to justiciability.

I do think Full Bodied's opinion is symptomatic of what's going to happen though. If the Court does find against the government cries of judicial activism will likely fly through the roof and the judiciary itself will become a political football. The court knows this, and can't be looking forward to undermining public trust in its impartiality. It's a hell of a decision to have to make, but i guess that's why they wear the big wigs.

I agree. It's why I think they brought in the full team instead of a 9 member panel. I do think they will rule against though; they are law lords, sworn to uphold the law.

 

[owlo]

Discussing the legal aspects of this case is exactly what I did do.

No, those aren't legal aspects. You said, paraphrasing:

"I am clueless about the legalities of all this, but if they rule against the government it's an establishment stitch up, and they are bias."

You also said, in your own words: "The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again"

 

[Full bodied red]

No, those aren't legal aspects. You said, paraphrasing:

"I am clueless about the legalities of all this, but if they rule against the government it's an establishment stitch up, and they are bias."

You also said, in your own words: "The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again"

Don't paraphrase me - quote me.

Over and Out.

 

[Wibble]

Discussing the legal aspects of this case is exactly what I did do.

That is the only post of yours in this thread that even came close but was still msrepresenting what the case and this thread is about. Please stop.

 

[Charlie Foley]

Yeah....Sure....

Your own anti-Brexit rants on the other thread suggest that even you, yourself, don't believe that for one second. If you do....Well you're sort of proving my point for me.

Who has brought this case as far as the SC ?? The Brexit supporters or the anti-Brexit groups. You have one chance to answer....

And precisely which law will the judiciary be required to rule on.

To the best of my knowledge, although I admit I'm not an expert, there is nothing in the UK's unwritten constitution which says it is unlwaful to tell lies to the Queen. In which case, any jusdgement from the judges hearing the case will be based on personal opinion of the merits of the allegation, and not on eveidence or on a point of law.

When the Mods appoint you as gatekeeper, I'll follow your instructions.

The merits of an allegation are based on evidence though.

 

[sammsky1]

entire hearing will be live streamed via https://www.supremecourt.uk/


Great starting summary : https://www.theguardian.com/politic...r-claims-suspension-of-parliament-is-unlawful

 

[rcoobc]

Amazing thread posts @awlo

 

[oates]

Very good op @owlo

 

[golden_blunder]

Strangely, I can.

The overwhelming majority ( in England - not Scotland, Wales and Ireland ) of EU sympathisers are the Champagne Socialists, the Liberal Elite, the 'I'm-Socialist-because-I-can-afford-to-be ' media luvvies. etc.

The Judiciary are part of these anti-democrats and have already sucked up to this lot once before with the Miller bint - they'll do it again, just to keep the rest of the proletariat in their place and punish them for daring to voice an opinion contrary to the established order.

Hope I'm wrong, of course, but even if I am, these people will try yet another way, and then yet another way after that, and then some more, because apparently they're so thick that they can't count past 48 so don't know that 52 is more than 48.

Just for balance what do you think the likes of JRM, BoJo, farage, Aaron Banks, Gove etc are? Aside from high profile leave campaigners?

 

[SteveJ]

Just for balance what do you think the likes of JRM, BoJo, farage, Aaron Banks, Gove etc are?

They're champions of the people.
So long as those people are themselves.

 

[golden_blunder]

They're champions of the people.
So long as those people are themselves.

Champions of their investments