Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.
That's a considerable piece of work (!congratulations!) that I suggest is not at all written for dummies, or even non-dummies unacquainted with legal terminology and methods, but for the initiated.

Personally, IANAL. From the point of view of a reasonably intelligent layperson, I can only make the following comments:

  • European Union (Withdrawal) (No. 6) Bill (HC Bill 433) is no longer a bill, it received royal assent on the 9th of September 2019 and is now an act. It is to this Act that I referred, (though Sumption presumably referred to it when it had passed the two Houses and was still awaiting assent). You twice cite EUWA2018, (Johson's duties [EUWA2018], pronouncing EUWA2018 "corrupt,"), and your comments seem to me to refer to that Act and not the one that is at issue.

  • "The presumption of innocence is no trivial issue at trial". But there is no trial, nor prosecution. And Boris Johnson himself has presumably seriously weaked the presumption of innocence in the event of a prosecution brought against him by his clear and repeated public insistence (abundantly on record, not "hearsay") that he intends to disobey the law.

  • Sumption is not "a public officer acting as such". He left the Supreme Court in 2018 having attained the age limit (70). He was questioned as a recognized authority on the law, not as a public officer. He was not delivering judgement, just his opinion as an informed citizen. This is not "A finding of law".

  • "public comment implicating an actual person". It is the office of Prime Minister that is concerned. No physical person is mentioned in the Act.

  •  "facts not in evidence ("...a second letter")". See above, there is no trial. The question of public interest was conditional: IF...

  • "His suggestions are a meritless yet prejudicial indictment of  Johson's duties [EUWA2018] and obligations [LEX]". This is the meat of your response to my question. But why "meritless"? Where is there an "indictment of Johnson's duties" ? To return to my question, what exactly is wrong in suggesting that the use of a potential loophole (additional language with the effect of annulling the prescribed language) would not be permissible under the terms of the Act?

Either you can explain in layperson's terms why the Act does in fact make it permissible, or (my second question) that the Act is flawed in some way, or you are simply stating a string of peremptory opinions.

As the Dude says:


Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Thu Sep 12th, 2019 at 09:55:34 AM EST
There is also the larger point, which is that we are talking about political actors making political decisions as part of a political process. True, the law may place restrictions on their powers in office; on what they can legitimately do and not do; but even here there are issues of timeliness, enforceability, and effective sanction.

If Johnson manages to run down the clock to Nov. 1st by fair means or foul, the effect of his actions will be essentially irreversible, and any subsequent consequences for him personally largely moot... A subsequent general election victory would largely erase all previous sins. Ask Trump. Ask the Russians. Ask Cambridge Analytica.

The political issue is that the finding of the Scottish Court is extremely damaging to Boris in Scotland in particular, and this damage will be amplified throughout the UK if it is reinforced by the Supreme Court. Misleading the Queen should be a capital offence politically, even if it no longer results in imprisonment in the Tower and a grisly execution.

The suggestion by government ministers that the Government may ignore or seek to neutralise the law (on seeking a further A.50 extension) is further damaging to the rule of law in all matters in the UK. It is characteristic of a decent into fascism.

Alienating many if not most Scots, royalists, law and order advocates and supporters of the principles of liberal democracy is generally not a good political strategy, particularly for a Conservative Leader who can often count on these constituencies as loyal supporters - especially when the alternative is Jeremy Corbyn.

It will not be lost on many observers that Corby, by contrast, has been acting as a model constitutional citizen. Fanatical Brexit supporters will, of course not care. But the often apathetic middle ground is shifting, and not in a good way from Boris' perspective.

The ultimate crime, in politics, is to lose when you had a relatively good hand to play. Boris is losing tricks he could have won; wasting Trump cards on tricks he could have won anyway; and alienating players who could have been his partners.

The (political) guillotine awaits...

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Sep 12th, 2019 at 11:02:59 AM EST
[ Parent ]
Law is what might happen. Politics is what does happen.

It's never a good idea to get the two confused.

Ultimately this will be a purely political judgement, made by the Establishment taking a view on its own long-term interests.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Sep 12th, 2019 at 12:20:34 PM EST
[ Parent ]
Law is what might happen. Politics is what does happen.

Very good. Construction of a law  by way of analogy to computer programming --arithmetic (factor) or algegra, for that matter.

Explain the meaning, purpose, and scope [BONUS!] of a declaration.

Pat declares variable d.

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 12th, 2019 at 04:57:13 PM EST
[ Parent ]
(I Am Not A Teacher. The joke's on me. < wipes tears > Perhaps I should have changed the TITLE to "A few enumerated lessons" before posting.)

All three questions are quoted from your comment.

Over all, I find your criticism (NOT-a-BAD-word emoji) constructive! Your points--taken together--remind us all: Prefatory marks about the subject(s) of "a lesson" might assist in attuning curious readers to common place contradictions between (i) theory, (ii) construction (iii) application, and (iv) practice of law. Also, in the manner of the great stoic, Frank, writing definitions in US-Eng. for multi-generational, "transnational," multi-lingual readers is hard werk! Universal humanity is a LIE. (Be-cautious emoji)

ii. construction. A title is the least informative element of a law. Once a bill (ID: chamber, number, title, intro date, body) is enacted according to the rules of the legislature and constitution (typically executive signature or administrative US code) the clerk of the legislature assigns a reference ID to the (former) bill's text, public law (PL) relating it by legislators' citations to category and class and "chapter" of existing public law to be amended, ie. "controlling law".

Pls, note time stamp: I posted the entry having READ the most recent text of its body before the bill was enacted. If the text of bills changes after HRM LOL assent, UK citizens should vigilant!.

European Union (Withdrawal) (No. 6) Bill (HC Bill 433)(HC Bill 433) amends European (Withdrawal) Act of 2018 ... "in effect", if not published ahhh sequence.

(i) theory,(iii) application, (iv) practice. presumption of innocence. Sure has taken a beating by the presses in the last decade. Is this principle of innocence for everyone at trial in fact harmful?

(iii) application, (iv) practice. trial objections "Hearsay" is one legal term of art. "Public officer" and "public's trust" are legal terms of art. ("Term of art" is a legal term of art!) References to UK laws and doctrine regarding these matters as well as public misconduct appear here, below subheading "Syllabus" of this diary entry.

in re: "No physical person is mentioned in the Act."
Which act? The points about Sumption's objectionable commentary, as quoted: His remarks apply common law doctrine --without citation, "under color of law"-- adjudicating "Public misconduct, Wilful misconduct" of Johnson's statements in parliament. Sumption's "suggestions" are professionally reprehensible, erroneous, suspect as a matter of civil and criminal law, and just plain IRONIC!

Did you know, within the first 10pp of the Law Commission report one learns how profoundly controversial the topic is among legislators, barristers, and plain folk? Moreover, no statute on "Public misconduct, Wilful misconduct" exists.

(Where's muh thought PO-lice patrol?!)
--Vive les Jail-house Lawyers!
In general, the lesson for "laymen" masquerading as "self-organizing" champions of freedom and cynical civilians combing journalistic reports is this: comprehension of legal codes and law enforcement is of vital interest to all living creatures, because the ones who exercise that political knowledge and experience can kill you or others with it.

Laws constitute government of all human societies. It is yours to obey or modify, ahem, by any means available.

The lesson plan is not to obtain expertise. It is firstly to exercise curiosity. It is to appreciate the principle of the thing, that is ideally, applicable to all in an epic search for equity.

Which equity do you accept and obet?

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 12th, 2019 at 03:16:40 PM EST
[ Parent ]
IANAC : no more comments from me!

I can't really find my way through all you say. Except to repeat that you seem in your reasoning to be assuming that someone has been accused of something and a trial is taking place. Neither of these is true. The presumption of innocence is perfectly intact, since no allegedly illegal act has taken place, no prosecution has been brought, and no trial is under way.

Secondly, if we are to follow your understanding of the law, better far be a lying, cheating shitsack who promises to disobey a law, than a retired Supreme Court judge(§) who answers a question about his reading of the text of a Bill. That is, judging by your defence of the one and copious censure of the other.

(§) Let it not be said that I am an admirer of Jonathan Sumption, who from my point of view is just another Eton-n-Oxford reactionary. Since you mention Dickens in another comment, let's have this :

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.

Moar equity !!! ;)


Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Fri Sep 13th, 2019 at 06:23:56 PM EST
[ Parent ]
principle (UK-Eng.)

operand (UK-Eng.)

politics (UK-Eng.)

Lesson: In any case, apply one or more principles to any one activity (operation) of government to express the expected product of its operands (Ministers of the Crown).

Diversity is the key to economic and political evolution.

by Cat on Fri Sep 13th, 2019 at 07:24:34 PM EST
[ Parent ]
I remind you, that is precisely what he did not do to form the basis of his judgment of duties and obligations that he ascribed specifically to Johnson's activities and mental state.

Nor did Sumption "read" the common law of public misconduct  of which he accuses Johnson specifically or instructions for producing evidence proving it. Were magistrates and juries to rely and take for example Sumption's conclusory statements of Johnson's guilt, many more would be imprisoned in the UK.

I am unmoved by the either rumored prestige or notoriety of Sumption and Johnson. I am unmoved by MSM reportage purporting "factual analysis" of events which has drifted so far bend the pale of craven entertainments as to be incredible. As is reforming a constitution which is not formed. ## Rule of man.

I look to the merits of applicable public laws to adduce retrospectively the commission of an alleged crime or a civil violation. For this reason I produced a brief syllabus. ## Rule of law.

Which is not to assume either that every statute and trial is desirable in its construction and execution. I understand very well from my observations of and experience with (mostly civil) law enforcement in the US, that proposition is not true. I have frequently alerted readers here over the past years of actual cases, their actual dispositions, and their implications for others.

Here is the latest edition of "scandal" in public office, produced by journalists who admit their only source of "evidence" is one another. On the Mystery of the McCabe Grand Jury. I've read this story with more mundane casts of villainy than "Russiagate". The moral of the tale is, The House Always Wins.

Why? What principle(s) of US Constitution and US Code prevail?

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 14th, 2019 at 12:52:08 AM EST
[ Parent ]
"I am unmoved by MSM reportage"

Me too. Years spent here deconstructing and criticising (I refuse to use "critiquing") MSM bullshit, bias, cowardice, notably on The Newsroom that I helped to create.

The Sumption quotes are no doubt editorially selected from all he said, but they are at least verbatim, which is why I offered them in place of what you (if I understand rightly?) call "yella sheet opposition".

" Were magistrates and juries to rely and take for example Sumption's conclusory statements of Johnson's guilt,"

Sorry, but you persist in seeing everything through the prism of a trial. There is no trial. No misdeeds have been committed or are alleged. There is no defendant, least of all Johnson in person. "Guilt" is a fantasy.

The opinion expressed is essentially political. What obligations does this law lay on the Prime Minister? Reply: s.he must apply for an extension, and not seek by chicanery to annul or deflect that objective. This is entirely speculative and conditional, it is not intended to inform or guide potential future court decisions, it is in no way a trial verdict or statement of "guilt". It is, however, we may assume, intended to inform the public on a political process. At a time of lies, obfuscation, trolling, covert manipulation, and perversion of institutions and process, it is imo welcome.

Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Sat Sep 14th, 2019 at 06:50:22 AM EST
[ Parent ]
Why, yes, there is.

Call the proceedings "hearings" if you prefer. Their results, if not procedures, are the same: recourse to judicial authority to decide remedy for a disputed injury.

Suspect actions of the PM and findings of law adjudicating malfeasance and criminal conduct in his capacity as a public officer are in fact subjects of three bench trials in the UK.

In fact ("skeleton outlines" a/k/a "briefs" of Applicants' pleadings) evidence submitted with political arguments to the courts to prove guilt--the responsibility for specific offense(s) by one or more suspects. Political argument is by definition the matter of laws, processes, things, and people which constitute a "civilization".

Evidence submitted in fact includes but is not limited to affidavits of witnesses and published "media" reporting. Those exhibits number in triple digits, so noted in opinions and judgment of the presiding courts. These collections may or may not include Sumption's public "suggestions" for consideration by the presiding courts to decide the truth of facts adjudicated. Itemization of all exhibits has not been published with opinions and judgment. A court decides evidence admissible or inadmissible, facts true or false according to standards of qualities established and enforced by its jurisdiction.

The UK Supreme Court has scheduled review ("trial") of those "rolled up" complaints, iirc 16 Sep.

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 14th, 2019 at 07:37:54 PM EST
[ Parent ]
in Cherry
The redactions purported to have been made on the basis of irrelevance, legal privilege and the Law Officers' advice convention [!]. The petitioners did not know whether these redactions had been properly made. No claim of public interest immunity had been advanced. It was a breach [!] of the right to a fair trial for the respondent [UK "government"] to produce redacted documents.
The BBC, the Times and the Sun made an application for access to the four documents produced by the respondent, the pleadings and the written arguments for the Lord Advocate and the respondent. This was on the basis of the principle [!] of open justice (Dring v Cape Intermediate Holdings [2019] 3 WLR 429 and R (Guardian News and Media v Westminster Magistrates' Court [2013] QB 618). There required to be public scrutiny of the way in which the courts decided cases. The public had to be able to understand why decisions had been taken. It was difficult, if not impossible, to know what was going on without the written material.
The court decided that the respondent need not produce unredacted evidence of the 4 memoranda. Why?

Diversity is the key to economic and political evolution.
by Cat on Sat Sep 14th, 2019 at 07:52:24 PM EST
[ Parent ]
The Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period to 11.00pm on 31 January 2020.

This is the text under discussion. The PM does not stand accused before any jurisdiction concerning the above, for the evident reason that this obligation is time-dependent: it does not apply before the 19th of October. Before that date, no Prime Minister can possibly contravene. Whatever "hearings" may exist concerning other matters, there are none whatsoever concerning this now-enacted Bill.

Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Sat Sep 14th, 2019 at 08:19:14 PM EST
[ Parent ]
I've got you number now.
< wipes tears >

Diversity is the key to economic and political evolution.
by Cat on Sat Sep 14th, 2019 at 08:39:18 PM EST
[ Parent ]
You are mistaken.

The act--in its particulars including the proposed "exit date" and the PM's duty to submit an extension request to president of the EU Council--passed by parliament is not disputed: You and I agree.

Ironically, pleadings of Applicants claim that the PM's prorogation is unlawful for various reasons. One of these, inexplicably, is that Order of Council for prorogation prevents the PM from submitting a timely extension request to president of the EU Council and prevents parliament sufficient time to "debate" any and all decision(s) by the EU Council on or before 31 October 2019.

Ostensibly the prorogation period ends 14 Oct 2019, the EU Council meets for decisions, 17-18 Oct. EUWA-2-2019 stipulates the form of the request to be submitted by PM and schedule for debate commencing PM receipt of EU Council decision: 2 days later. Regardless of the date of submission, UK parliament response to it ("debate") is limited to the period between 18-31 Oct. Regardless of the prorogation period, UK parliament response to it ("debate") is limited to the period between 18-31 Oct.

UK parliamentary "constitutional" procedures in this matter are predicated on--depend on-- EU Council acceptance of parliament's specified extension period. Did you notice? EUWA-2-2019 does express any formula response to EU Council rejection of the request. Did you notice? EUWA-2-2019 SCHEDULE form letter does not express any report of parliamentary progress or "a way forward" to approval or ratification of the withdrawal agreement prepared by T. May and EU Council and 3x rejected. Did you notice?

To be charitable, it is difficult to make sense from a string of non sequiturs purported by a PM to represent simultaneously either "no deal" or a deal or an agreement with either the EU Council or parliament.

Diversity is the key to economic and political evolution.

by Cat on Mon Sep 16th, 2019 at 05:00:58 PM EST
[ Parent ]


Occasional Series