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Legal Explanation Needed Please......
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OK the prorogation was deemed unlawful last week and apparently the law that it contravenes is the "Claim of Right Act (Scotland) 1689" - a Scottish law made before the UK was formed. Can some legal beagle explain how a law made in another country before the act of union can possibly apply to the whole of the UK, thanks.
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The case at the Supreme Court will be available to watch live from Tuesday.
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//If the Inner House's decision upheld, that will mean prorogation is unlawful, regardless of the other decision.//
I cannot see how the Supreme Court can possibly uphold both decisions. Their function is to settle whether prorogation was lawful or not. The Scottish court said it was not, the English court decided it was not a matter for the courts at all. If the English decision is upheld, the Scottish decision automatically falls. If the Scottish decision is upheld, the SC must overrule English Court’s decision.
//The High Court appears to have taken not very seriously the claim that it was all about Brexit//
I don’t think they even considered that at all, Jim. They decided that the matter was not justiciable and so had no need to consider the facts.
I cannot see how the Supreme Court can possibly uphold both decisions. Their function is to settle whether prorogation was lawful or not. The Scottish court said it was not, the English court decided it was not a matter for the courts at all. If the English decision is upheld, the Scottish decision automatically falls. If the Scottish decision is upheld, the SC must overrule English Court’s decision.
//The High Court appears to have taken not very seriously the claim that it was all about Brexit//
I don’t think they even considered that at all, Jim. They decided that the matter was not justiciable and so had no need to consider the facts.
I guess I'm basing what I said on paragraph 51 of the High Court ruling, where it says that:
// The Prime Minister’s decision that Parliament should be prorogued .... [was] inherently political in nature ... The evidence shows that a number of considerations were taken into account... [including] the need to prepare the Government’s legislative programme for the Queen’s Speech; that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations; that [some of] the period of prorogation would ordinarily be recess for party conferences; and that the current parliamentary session had been longer than for the previous 40 years. The Prime Minister had also been briefed ... that it was increasingly difficult to fill parliamentary time ... if new bills were introduced, either the existing session would have to continue for another four to six months at a minimum ... All of those matters involved intensely political considerations. //
How much this played into their decision I don't know, but it seemed to me to say that the High Court accepted the government's explanation for its reasons. If so that marks a very different view from the Scottish Courts, where they held that, even apart from the question of justiciability, the Government was either misleading people with the above reasoning or just straight-up lying.
I agree, though, that the Supreme Court must overrule at least one of these judgements. They cannot both be right -- the Scottish Court may be influenced by unique aspects of Scottish Law but I don't think their judgement relied upon those. So one or other will be overturned. If I had to bet then I'd probably expect the SCUK to rule in favour of the government rather than against it, although probably not unanimously either way, and maybe with at least some sense of "I mean... it's technically legal, I suppose, but seriously guys?!"
// The Prime Minister’s decision that Parliament should be prorogued .... [was] inherently political in nature ... The evidence shows that a number of considerations were taken into account... [including] the need to prepare the Government’s legislative programme for the Queen’s Speech; that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations; that [some of] the period of prorogation would ordinarily be recess for party conferences; and that the current parliamentary session had been longer than for the previous 40 years. The Prime Minister had also been briefed ... that it was increasingly difficult to fill parliamentary time ... if new bills were introduced, either the existing session would have to continue for another four to six months at a minimum ... All of those matters involved intensely political considerations. //
How much this played into their decision I don't know, but it seemed to me to say that the High Court accepted the government's explanation for its reasons. If so that marks a very different view from the Scottish Courts, where they held that, even apart from the question of justiciability, the Government was either misleading people with the above reasoning or just straight-up lying.
I agree, though, that the Supreme Court must overrule at least one of these judgements. They cannot both be right -- the Scottish Court may be influenced by unique aspects of Scottish Law but I don't think their judgement relied upon those. So one or other will be overturned. If I had to bet then I'd probably expect the SCUK to rule in favour of the government rather than against it, although probably not unanimously either way, and maybe with at least some sense of "I mean... it's technically legal, I suppose, but seriously guys?!"
//"I mean... it's technically legal, I suppose, but seriously guys?!"//
I have mentioned two cases of proroguement Jim. John Major did it in 1997 and Clement Atlee did so in 1948. In neither case was it considered necessary to refer the matter to the courts and both decisions were taken for undoubted reasons of political expediency. What's so different this time?
I have mentioned two cases of proroguement Jim. John Major did it in 1997 and Clement Atlee did so in 1948. In neither case was it considered necessary to refer the matter to the courts and both decisions were taken for undoubted reasons of political expediency. What's so different this time?
In 1948 what was clearly different is that the majority of Parliament, or at least the Commons, was onboard. As I understand it the 1948 prorogation was to artificially create the number of sessions needed to push through the Parliament Act against the wishes of the Lords. Meanwhile the 1997 prorogation led into a General Election, so although there are clear suspicions that the motives were a bit untoward it was also unarguable that Parliament had to close a week later anyway for the GE.
What is different this time depends a little on whether you take the Government seriously or not as to their reasons. Every Brexit supporter on AB was cheering the prorogation as a means of getting shot of those pesky MPs for a good month, which is, not coincidentally, exactly the reason that Johnson *doesn't* want the prorogation to be attributed to. So if it turned out that it was the former, rather than the QS, then what's different is that Johnson lied to the Queen when he gave his advice.
What is also different is, yes, undoubtedly the tense political atmosphere right now: I don't doubt that a few Remain supporters will use every trick in the book, and some that aren't to try, and defeat the Government on the No Deal point at least. Pushing through legislation in a day or two is highly unusual, and probably generally unwise. But it's not like Leave supporters aren't trying similar things: Theresa May's government was throwing all sorts of procedural devices to try and keep Parliament's noses out of their business.
Oh, yes, and what's different here is that Johnson has no majority. So it's a minority government that has no real authority any more nevertheless telling Parliament that they can get knotted.
What is different this time depends a little on whether you take the Government seriously or not as to their reasons. Every Brexit supporter on AB was cheering the prorogation as a means of getting shot of those pesky MPs for a good month, which is, not coincidentally, exactly the reason that Johnson *doesn't* want the prorogation to be attributed to. So if it turned out that it was the former, rather than the QS, then what's different is that Johnson lied to the Queen when he gave his advice.
What is also different is, yes, undoubtedly the tense political atmosphere right now: I don't doubt that a few Remain supporters will use every trick in the book, and some that aren't to try, and defeat the Government on the No Deal point at least. Pushing through legislation in a day or two is highly unusual, and probably generally unwise. But it's not like Leave supporters aren't trying similar things: Theresa May's government was throwing all sorts of procedural devices to try and keep Parliament's noses out of their business.
Oh, yes, and what's different here is that Johnson has no majority. So it's a minority government that has no real authority any more nevertheless telling Parliament that they can get knotted.
My reasoning for both decisions being able to be upheld was my considering one appeal where there were different grounds for the appeal.
A court could find that all but one of those grounds were unsuccessful but the one remains ground was and the appeal would be won.
The cases going through the courts are, in effect, one appeal using different grounds.
Now, I have spent some googling to support my view but have not had much luck either way. I did find the following from the Institute for Government who say, "Because of the constitutional principles at stake, the UK Supreme Court will probably try to render English public law and Scottish public law consistent, so that the prorogation was lawful in both, or unlawful in both.
However, the Supreme Court could in theory agree with both the English High Court and the Scottish Court of Session, and rule that the prorogation was lawful under English law but not under Scottish law. In that case, the prorogation would be unlawful in the UK overall."
However, as the basis for the High Court decision was that the Prorogation was not justifiable but the Inner Court said it was, I can't really see how both can be correct.
I will see and hear what all is said on Tuesday (and no doubt the following day) and wait on the outcome.
A court could find that all but one of those grounds were unsuccessful but the one remains ground was and the appeal would be won.
The cases going through the courts are, in effect, one appeal using different grounds.
Now, I have spent some googling to support my view but have not had much luck either way. I did find the following from the Institute for Government who say, "Because of the constitutional principles at stake, the UK Supreme Court will probably try to render English public law and Scottish public law consistent, so that the prorogation was lawful in both, or unlawful in both.
However, the Supreme Court could in theory agree with both the English High Court and the Scottish Court of Session, and rule that the prorogation was lawful under English law but not under Scottish law. In that case, the prorogation would be unlawful in the UK overall."
However, as the basis for the High Court decision was that the Prorogation was not justifiable but the Inner Court said it was, I can't really see how both can be correct.
I will see and hear what all is said on Tuesday (and no doubt the following day) and wait on the outcome.
//will be interesting if their learned lordships reserve their judgment until October...…. //
I don't see what difference it makes. MPs who wish us to remain in the EU have made sure we will not leave on 31st October - unless the PM persuades Parliament to accept the May deal with a minor tweak or two, which will then amount to the same thing.
I don't see what difference it makes. MPs who wish us to remain in the EU have made sure we will not leave on 31st October - unless the PM persuades Parliament to accept the May deal with a minor tweak or two, which will then amount to the same thing.
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