Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.

A few first principles

by Cat Wed Sep 11th, 2019 at 07:12:31 PM EST

Question 1. What exactly is wrong with suggestions that the PM would be breaking the law if he (as he has publicly stated he will) refused to comply with this obligation?

The presumption of innocence is no trivial issue at trial. Questions about a law merely invite interpretation of its meaning, purposes and scope. But Lord Sumption, a "public officer acting as such", abused the "public's trust" in the impartiality of the courts. Volunteering ex parte communication or public comment implicating an actual person in legal controversy is grave error. A finding of law on substance and and circumstances to which one is not a party is another. His suggestions are a meritless yet prejudicial indictment of  Johson's duties [EUWA2018] and obligations [LEX]. It admitted facts not in evidence ("...a second letter") and omitted evidence; construed misconduct from hearsay ("Johnson said...") and omits exculpatory speech; and posed speculative testimony as to personal motive ("... then try to neutralise it") excluding "without reasonable excuse or justification" under the law [CPS]. Sumption misstated the case for the first page of a dead letter to the EU Council seeking unconditional approval of parliament's new "exit date".

Question 2. Is the Act itself corrupt and incapable of withstanding scrutiny in the courts?

Strictly speaking, pronouncing EUWA2018 "corrupt," absent competence to assess model policy execution by comparison, is impolitic. Based on the assumption that the title were indicative of its purposes, the legislation obviously failed to realize its objective. While portions with regulatory elements of EU membership affirm maintenance of effort in the TEU, others such as Repeal of the ECA do not. Conversely, the obstacle to fulfillment of parliamentary obligations performed for either "social contract"--treaty or public law--is section 13.   Update [2019-9-14 20:35:4 by Cat]: copyedits

Section 13 consumes time "in accordance with its own constitutional requirements" [621/18]. Initially, it provided MPs recursive scheduling for votes on debate and resolutions consenting to severable parts of "the deal" prior to a schedule to vote to ratify all or none. The limiting clause in the script is scheduling to agree a motion to make note of the PM's required proposal "to proceed" or "a way forward" that is to paraphrase any unacceptable negotiation outcome for HoC considerations. Remember the speaker Bercow fondly.

Amid EP elections 13 produced the EUWA2019 series, 1-6, as amended to its body, EUWA2018. Think of this series of bills arranged by MPs as a growing child process named "a bill to block no-deal." In truth the text is an legislative instrument whose sole purpose amounts to management of EU Council contracts with the UK to extended the period under Article 50(3)TEU. The EU Council is in its right--brought into being by parliament's original disagreements--to stipulate the length and term of consideration for which TEU prescribes no precedent or penalty. Official correspondence between the May and Tusk proves construction of the model the Council would expect Johnson to observe. The PM promises ratification of the withdrawal agreement by parliament, given time to manufacture consent. The EU Council grants an extension in consultation or not with purported progress. HoC contract management evolves into an elaborate procedure mill to authenticate "exit date" motions.  

Now, the predicate for court scrutiny of a hypothetical controversy is, Who is the aggrieved party? If "to do and not to do a particular thing" is agreeable to MPs and their constituents--Remainers and Leavers--no complaint of breach by parliament's members will rise from EUWA2018. And none has. The courts have quashed legal challenges to the political integrity of parliament. The populus projects scorn on promises made them or agreed by PMs past and present.

Question 3. Does the PM, in your reading, simply have the power to do as he wishes without consequences?

No. Neither does the UK parliament. Johnson assumed an obligation for which he is no better fitted than May or his own successor. That is to maintain a charade of mutual consideration despite parliament's poor performance meeting the Council's minimal expectation. If he is smarter than May he would exit the stage.


Documentary evidence

William James and Kylie MacLellan, "Boris Johnson tells parliament: You can tie my hands, but I will not delay Brexit". Retrieved 09.10.2019

Adam Forrest 9 September 2019 09:03, "Boris Johnson news - live: PM loses second attempt to trigger early general election". Retrieved 09.10.2019

A former Supreme Court justice has also said it would not be legal for Boris Johnson to apply for a Brexit extension while simultaneously trying to get the EU to reject it in a second letter.

Lord Sumption was asked if it would be legal for the PM to do so. He told BBC Radio 4's Today programme: "No, of course it wouldn't. The Bill, or Act as it's about to become, says that he's got to apply for an extension. Not only has he got to send the letter, he's got to apply for an extension.

"To send the letter and then try to neutralise it seems to me, plainly, a breach of the Act. What you've got to realise is the courts are not very fond of loopholes."

T. May, A letter from Prime Minister Theresa May to European Council President Donald Tusk, 20 Mar. 2pp
meaningful vote(s),"a motion as soon as possible under section 13 of the [European] Withdrawal Act of 2018"

EUROPEAN COUNCIL DECISION taken in agreement with the United Kingdom extending the period under Article 50(3)TEU, 22 Mar
GRANTED "expected the United Kingdom to indicate a way forward before 12 Apr"

T. May, A letter from Prime Minister Theresa May to European Council President Donald Tusk, 5 April. 2pp

EUROPEAN COUNCIL DECISION taken in agreement with the United Kingdom extending the period under Article 50(3)TEU, 11 Apr
GRANTED EP electoral duty, "30 June 2019, with a view to finalising the ratification"

(10)This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. [...] To this effect, the United Kingdom shall facilitate the achievement of the Union's tasks and shall refrain from any measure which could jeopardise the attainment of the Union's objectives, in particular when participating in the decision-making processes of the Union.
GRANTED "as long as necessary and, in any event, no longer than 31 October 2019"
(12)This extension excludes any re-opening of the Withdrawal Agreement. Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. Such an extension cannot be used to start negotiations on the future relationship.

Applicable law

Article 50, TEU

Judgment of the Court (Full Chamber) of 10 December 2018, Case C-621/18

European Union (Withdrawal) Act 2018, as amended from 26.06.2018 to present

ibid. European Union (Withdrawal) Act 2019 including but not limited to authorities to set or agree "exit dates"

ibid. European Union (Withdrawal) (No. 6) Bill (HC Bill 433), including but not limited to Schedule Form of letter from the Prime Minister to the President of the European Council

The Crown Prosecution Service, Misconduct in Public Office, Wilful neglect or misconduct
elements of common law or statutory offenses resulting in real and substantial controversy or injury
Crown-comish-bad-law-reformers' Discussion: "Summary of the problems ". 2016. 155 pp

Reference, legal terms of art

Black's Law Dictionary, contract, general
Wex Dictionary, contract, private parties
Vienna Convention on the Law of Treaties (VCLT), treaty qua contract, state parties
Why US-UK-don't-do-international-law-m'k? Discussion: "Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties". 2007. 34 pp

Black's Law Dictionary, breach of contract; Article 56-58,60 VCLT

justice.gov.uk, evidence, forms and proofs of

The Crown Prosecution Service, hearsay, admissability of

Organization for Security and Co-operation in Europe (OSCE), Basic types of trial objections, to assume facts not in evidence (p 36)

Let us consider a variation: "What exactly is wrong with suggestions that the PM would be breaking the law if he (as he has publicly stated he will) strangles to death in the House of Commons the next Conservative member who refuses to support a bill the government considers a matter of confidence."

Would it be prejudicial to the PM's presumption of innocence for his Attorney General to publicly state that, were he to do so, he would certainly be tried for murder? The Attorney General, (or Judge), could later recuse himself from this case if it went to trial.

"It is not necessary to have hope in order to persevere."

by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Thu Sep 12th, 2019 at 02:09:42 AM EST
In many states in the USA one making such a threat would be vulnerable to being charged with 'terroristic threatening'.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Thu Sep 12th, 2019 at 02:13:28 AM EST
[ Parent ]
Indeed - the central issue isn't guilt or innocence, it's whether the Executive is effectively above the law, because the judiciary can argue that any interaction between the Executive and the Monarch is constitutionally non-justiciable.

The latter line is in direct conflict with the sovereignty of Parliament.

You can't have both. Either Parliament is truly sovereign, or the Executive can shut it down on a whim by giving any old excuse to His or Her Maj.

One or the other has to go.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Sep 12th, 2019 at 12:18:54 PM EST
[ Parent ]
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 ]
I did not know this.

Constitutional Reform Act 2005, Part 3, §23,(1)

Has a bit more practice than the Fixed Terms Act.

Diversity is the key to economic and political evolution.

by Cat on Fri Sep 13th, 2019 at 01:41:00 AM EST
How might the Supreme Court rule?
The UK Supreme Court is the final court of appeal for both English law, and Scottish law. Both the English and the Scottish cases are now going to be heard together by the Supreme Court. 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
< reckless eyeballin' >
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.
hobgoblin and little minds. m'k

THE QUEEN on the application of GINA MILLER and THE PRIME MINISTER [et al.]
High Court judgment 11 Sep 2019

Court of Session opinion 11 Sep 2019

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 14th, 2019 at 04:29:21 AM EST
[ Parent ]
prepared for the worst

That is reading 68 pp Cherry pleading to frauds by government to pervert sovereignty of parliament under EUWA2018--in principle, no evidence of loss or damages.

In Miller, the (rejected) evidence of EUWA2018 offending executive acts for prorogation is "rank bad reasons."

In McCord, review of executive powers at EUWA2018 §10 separates (rejected) evidence of "impugned decision".

So. In the case of the US American version--Commerce v. New York et al. (Jul 2019) under the Administrative Procedures Act--SCOTUS affirmed executive authority and remanded a "contrived" explanation to the lower court for review, which POTUS declined to repair.

Diversity is the key to economic and political evolution.

by Cat on Sat Sep 14th, 2019 at 06:09:17 AM EST
[ Parent ]
"the dictum of Lord Sumption," among others, is cited three times in Cherry. The first time with respect to the scope of judiciable royal prerogative, proscribed by tests of lawful public acts.
A prerogative decision may be the subject of a judicial review [citation her omitted] ...Whether the issue is ultimately justiciable will depend upon the subject matter [citation her omitted] ...As a generality, decisions which are made on the basis of legitimate political considerations alone are not justiciable (Shergill v Khaira[2015] AC 359, Lords Neuberger, Sumption and Hodge at para [40];Gibson v Lord Advocate1975 SC 136, Lord Keith at 144). It is not possible to apply to such decisions the public law tests of reasonableness (Council of Civil Service Unions vMinister for the Civil Service: re GCHQ (supra) Lord Diplock at 411), impartiality (McClean v First Secretary of State[2017]EWHC 3174 (Admin),Sales LJ at paras [21] and [22]) or fettering of discretion (R (Sandiford) v Secretary of State for Foreign Affairs[2014] 1 WLR 2697). In this case, if the challenge was based upon these judicial review considerations or similar matters, it would not be justiciable.
Over all, the meaning of "legitimate political considerations" seems to be a trope denoting any enacted authority exercised by an elected ahh minister.

Be that as it may or may not, citations of Lord Sumptions opinions or judgments on the matter of royal prerogatives in 2015 (not even precedent) are given to justify claims that Johnson's exercise of prorogation is not judiciable. Which is further reason to note, Sumption should have kept his contradictory "suggestions" shut to the presses rather than spoil current deliberation of presiding "Law Lords" and general "apprehension" (read: fear) of their subscribers.

Diversity is the key to economic and political evolution.

by Cat on Mon Sep 16th, 2019 at 03:45:33 PM EST
[ Parent ]
Law Lords
From 1 October 2009, the Supreme Court of the UK assumed jurisdiction on points of law for all civil law cases in the UK and all criminal cases in England, Wales and Northern Ireland.
not a good sign of competence

Diversity is the key to economic and political evolution.
by Cat on Sat Sep 14th, 2019 at 08:14:17 AM EST
[ Parent ]

EUWA2018. Retrieved 14.09.2019

An Act. Retrieved 14.09.2019

new "strand" of EUWA2018 resembling European Union (Withdrawal)(No. 6)Bill (HC Bill 433)
European Union (Withdrawal)(No. 2) Act 2019
hereinafter "EUWA-2-2019" for entertainment purposes only

Diversity is the key to economic and political evolution.

by Cat on Sun Sep 15th, 2019 at 10:59:37 PM EST
(It appears from the table of contents that euractive editorial begins the week with a crabby disposition.)

Johnson the Brexit 'Hulk' finally meets EU's Juncker

On Monday (16 September), after comparing himself to berserk comic book super-smasher Hulk, the British leader will enjoy a genteel working lunch with the EU Commission president.
Chief EU negotiator Michel Barnier, who will join the leaders for their talks in Juncker's native Grand Duchy, has said he has "no reason to be optimistic". And the European Parliament will this week vote on a resolution rejecting Johnson's demand that the so-called "Irish backstop" clause be stripped from the deal.

Johnson [like T. May] insists this measure, which temporarily keeps the UK [specifically NI] in the EU customs union, has to go if he is to bring the agreement back to the House of Commons.

Recognition of and prohibition of UK modification to the GFA "all Ireland" were adopted by UK 1998 statutes and affirmed in EU Withdrawal Agreement 2018: There is actually no disputed border. There ares actually disputed customs collection methods between "High Parties" to BREXIT.
"A huge amount of progress is being made," he said, referring to "technical talks" on border procedures between his Brexit adviser David Frost and Barnier's team.
UK refuses to commit to customs duty collections on goods originating in NI ("alternative arrangements"). Develops this obstinate position against tariffs into a story about negotiations to modify non-negotiable WA, threats to install border barriers prohibited by several UK statutes. Crowd roars, gnashes teeth, consults psychiatric manuals. Lords Spirituall.
"I can't objectively tell you whether the contacts we have undertaken with Mr. Johnson's government will lead to an agreement between now and mid-October," [Barnier] said. After that meeting, the speaker of the parliament [President] David Sassoli unveiled the Brexit resolution, which would insist that the backstop remain in the deal.

"The resolution says that if there is a no-deal departure, then that is entirely the responsibility of the United Kingdom," he said.

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 16th, 2019 at 05:33:46 PM EST
[ Parent ]

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 16th, 2019 at 07:27:43 PM EST

Go to: [ European Tribune Homepage : Top of page : Top of comments ]