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What was the question?

(SCOTUS version writ of certiorari, Rule 14. Content of a Petition for a Writ of Certiorari)

in re: Miller and Cherry appeals

27.Both cases raise the same four issues, although there is some overlap between the issues: (1) Is the question of whether the Prime Minister's advice to the Queen was lawful justiciable in a court of law? (2) If it is, by what standard is its lawfulness to be judged? (3) By that standard, was it lawful? (4) If it was not, what remedy should the court grant?
What standard? Scroll up to "evidence" listed in Syllabus of this diary entry. Scroll up in the Judgment to review admissible evidence considered by the SCOTUK.


Diversity is the key to economic and political evolution.

by Cat on Tue Sep 24th, 2019 at 03:21:47 PM EST
[ Parent ]
38.In  principle, if not always in practice, it  is relatively straightforward  to determine the limits of a statutory power, since the power is defined by the text of the  statute. Since a prerogative power is  not constituted  by any  document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie. Since the power is recognised by the common law, and has to be compatible with common law principles, those principles may illuminate where its boundaries lie. In particular, the boundaries of a prerogative power relating to the operation of Parliament are likely to be illuminated, and indeed determined, by the fundamental principles of our constitutional law.
Such as? Giving "effect to" statutory rules and "constitutional principles developed by" litigation
41.Two fundamental principles of our constitutional law  are relevant to the present case. The  first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply. However, the effect which the courts have given to Parliamentary sovereignty is not  confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law.
m'k--and the dissociative principle?
42.The sovereignty  of Parliament would, however, be undermined as the foundational principle of our constitution if the executive [?] could, through the use of the prerogative, prevent [the Crown in] Parliament [?] from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands  prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.

Diversity is the key to economic and political evolution.
by Cat on Tue Sep 24th, 2019 at 05:12:45 PM EST
[ Parent ]
Was the advice lawful?

55. Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons -and indeed to the House  of  Lords -for its actions,  remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister's action had the effect of frustrating or preventing the  constitutional role [?] of [the Crown in] Parliament in holding the Government to account.

< wipes tears >
58.The next question is whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy. Of course, the Government must be accorded a great deal of latitude in making decisions of this nature. We are not concerned with the Prime Minister's motive in doing what he did. We are concerned with whether there was a reason for him to do it. It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks.
here it comes, the 4 memo schedule conflict ...

Diversity is the key to economic and political evolution.
by Cat on Tue Sep 24th, 2019 at 05:37:03 PM EST
[ Parent ]
15. On 28thAugust 2019 [...] We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.

Diversity is the key to economic and political evolution.
by Cat on Wed Sep 25th, 2019 at 12:57:09 AM EST
[ Parent ]
30.Before considering the question of justiciability, there are four points that we should  make clear at the outset. First, the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.

31.Secondly, although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. ...

Diversity is the key to economic and political evolution.
by Cat on Wed Sep 25th, 2019 at 01:10:56 AM EST
[ Parent ]
btw, the standard measure of "normal" government prep of Queen's Speech and legislative agenda  is measured in Sir John Major units of department "bids for the Bills". Moreover, government minutes exhibit government's disregard for parliamentary deliberation: "It  does not discuss what Parliamentary time would be needed to approve any new [?!] withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018 and enact the necessary primary and delegated legislation."

That consideration is a bit incoherent as the PM has concluded no other agreement with the EU Council besides T. May's laid 11 March, and sec. 13 provides for approval of a negotiated "outcome" with the EU Council. EUWA-2-2019 , Pt. 2, provides only that by 30 November 2019 the Sec. of State "Report on progress of negotiations on the United Kingdom's relationship with the European Union" in the event the EU Council approves extension to 11.00pm 31 January 2020. Oddly, "The Secretary of State shall make a further report under subsection (1) at least every 28 calendar days starting on 7 February 2020 either until an agreement with the European Union is reached or until otherwise indicated by a resolution of the House of Commons."

60. ... most  tellingly of all, the  memorandum  does not  address the competing merits  of going into recess and prorogation. It wrongly gives  the  impression that  they  are much the same. The Prime Minister's reaction was to describe the September sitting as a "rigmarole". Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the  Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above.

61.It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason  -let alone a good reason- to advise Her Majesty to prorogue Parliament for five weeks, from 9thor 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

Diversity is the key to economic and political evolution.
by Cat on Wed Sep 25th, 2019 at 12:05:59 AM EST
[ Parent ]
The Remedy

62.Mrs Miller asks us to make a declaration that the advice given to Her Majesty was unlawful and we can certainly do that. [...] The essential question is: is [the Crown in] Parliament prorogued or is it not?
evident acts of Pariament: "article" 9 Bill of Rights (1688), Claim of Right of 1689 (Scotland) agree, Erskine May, Parliamentary  Practice (25th ed 2019, para 13.12):
"The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the 17th century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that which is recognised by its inclusion in the formulation of article IX.
Proragtion is "not a decision of either House of [the Crown in] Parliament."
It is not something upon which the Members of [the Crown in] Parliament can speak or vote. The  Commissioners are not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen's bidding. They have no freedom of speech. This is not the core or essential business of Parliament.
It led to the Order in Council which, being founded on unlawful advice,was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into [the Crown in] Parliament with a blank piece of paper. It too was unlawful, null and of no effect.
70.It follows that [the Crown in] Parliament has not been prorogued and that this court should make declarations to that effect. We have been told by counsel for the Prime Minister that he will "take all necessary steps to comply with the terms of any declaration made by thecourt" and we expect him to do so. However, it appears to us that, as [the Crown in] Parliament is not prorogued, it is for [the Crown in] Parliament to decide what to do next.
"to decide  upon a  way forward": uh oh.

Diversity is the key to economic and political evolution.
by Cat on Wed Sep 25th, 2019 at 12:40:21 AM EST
[ Parent ]


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