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.


Syllabus

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)

Display:
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.

usage
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

OPINION OF LORD CARLOWAY, THE LORD PRESIDENT in the reclaiming motion byJOANNA CHERRY QC MP and OTHERS against THE ADVOCATE GENERAL
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 ]
Besides Commerce which left in place race gerrymandering,

Besides the Oversight! subpoena power litigation which ages over multiply sessions,

Besides the impeachment saga in refining House rules and compelling evidence,

there are the emoluments cases (lost track of how many) all languishing in the most inferior courts. Here's an update demonstrating how appellate courts entertained Trump's opposition for 2 years. One court cleared standing of a 2x, irrc,  amended complaint. Definition, or test, of an emolument has stalled. But CREW is developing a theory of "zones of interest." Annoying stuff, but not the most annoying. You see, 4th Circuit is on to something. That is lack of feasible remedy for injured parties. 4th Circuit explains, enjoining Trump won't hide knowledge of Trump properties from everyone else.

Similarly, "blind trust" won't erase Trump knowledge of Trump properties. For achieve that level of ignorance, or innocence, the ct would have to prescribe something like a lobotomy for every president-elect. Or a vow of poverty, complete "divestment" of every ownership interests.

Diversity is the key to economic and political evolution.

by Cat on Wed Sep 25th, 2019 at 03:37:25 AM EST
[ Parent ]
McCord (Raymond), JR83 and Jamie Waring's Applications v The Prime Minister and others, judgment of HIGH COURT OF JUSTICE IN NORTHERN IRELAND
w/o 12 Sep in Revolt in the Heart of UK Democracy

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 30th, 2019 at 02:50:00 PM 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.
ROLE MODELS
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 ]
"the responsibility of the United Kingdom"

Now comes interpretation from RTE of dramatic claims from unreliable UK interlocutors purporting STYMIED "negotiations" of the PMs in the past 2 years. Having uncritically accepted the supposition--invented by T. May for the delectation of rapid Tories--that "the deal" respecting the PROTOCOL ON IRELAND/NORTHERN IRELAND indefinitely imposes EU regulation on all of UK manufactures and territorial sovereignty ("teh union"), Mr Connelly reconsiders Johnson's denunciation of dissembling Tory "backstop" cant as compared to the actual, legal text of the WA in part.  

Brexit Gamble: Boris Johnson and the Northern Ireland-only backstop, 14 Sep.

"The landing zone is clear to everyone: we need to find a way of ensuring that UK [as a whole] is not locked in the backstop arrangement whilst giving Ireland the assurances it needs."
'Twas never the case. Nearly every word of the Protocol affirms the UK sovereign responsibility to ensure goods produced in NI for EU export are fit for EU consumption as are any goods. There is no case for unconditional import of goods by EU 27 or any gov on the planet.
[EU Commissioner] Hogan suggested the EU could strengthen some of the reassurances already contained in the Withdrawal Agreement.

Article 1 of the Irish Protocol states: "This Protocol is without prejudice to the provisions of the 1998 [Good Friday] Agreement regarding the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people."

ie. No "annexation" of Northerm Ireland implied or expressedly created by UK agreement to the WA. Which is why, when the WA expires or the UK fail to agree to the WA, third country status of UK includes NI (Article 6).

Moreover the preamble of the protocol reiterates:

RECALLING that the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union of 8 December 2017 outlines three different scenarios for protecting North-South cooperation and avoiding a hard border, but that this Protocol is based on the third scenario of maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed,
"all-island" in the singular, excluding Britain. No wonder EU gov holds fast. UK "constitution" is unable or unwilling to meet the simplest of tests for bi-lateral trade agreement ("future relationship").

Diversity is the key to economic and political evolution.
by Cat on Tue Sep 17th, 2019 at 12:43:07 AM EST
[ Parent ]


Diversity is the key to economic and political evolution.
by Cat on Mon Sep 16th, 2019 at 07:27:43 PM EST
"state-let"
That's a novel turn of phrase

I am unable to find it in any glossary of international law of treaties or even the peculiar body of UK statutes, common law, and "conventions."

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 19th, 2019 at 03:53:40 PM EST
Documents laid before parliament, "following political agreement" between representatives of High Parties (states UK and EU), have since 11 March 2019 exposed defective construction of "constitutional monarchy" qua state known as the United Kingdom.

The division of "government" from parliament exhibits grave political and lawful contradictions of state sovereignty simultaneously vested in (i) the monarch, (ii) a bi-camaral parliament of elected and appointed member legislators, and (iii) a representative of the monarch ("government") elected by parliament to appoint additional Ministers of the Crown.

Consequently, the UK lacks the capacity to enforce an agreement with another state as promised.

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 19th, 2019 at 05:21:10 PM EST



Diversity is the key to economic and political evolution.
by Cat on Fri Sep 20th, 2019 at 05:54:47 AM EST
in a legible format, published by THE PRIME MINISTER AND ADVOCATE GENERAL FOR SCOTLAND'S FURTHER SUBMISSIONS ON RELIEF, full text. 8 pp.

uh oh. Counsel rolled up the not-enumerated article "IX of the Bill of Rights [Cherry/Auth/43/MS2893]" (1688) and fanned the SCOTUK with it: "does not define the term 'proceedings in Parliament'" such as reading of the Commission in parliament on behalf of infirm HRM.

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

--
  1. citing the relevant part in Cherry QC briefing, I surmise; additional citations to Law Lords and SCOTUK opinions
  2. std.-Eng. transcription of 17th cen. puritan verse, two declarations, one "article"/bullet point
  3. commentary on defects in constitutional monarchy, Britain's unwritten constitution , emphasizing the unwritten parts, namely not The Parliament Acts et seq.:
The Monarchy is one of the three components of Parliament (shorthand for the Queen-in-Parliament) along with Commons and Lords. In legal theory, the Queen has absolute and judicially unchallengeable [!] power to refuse her assent to a Bill passed by the two Houses of Parliament. However, convention dictates the precise opposite and in practice she automatically gives her assent to any government Bill that has been duly passed and agreed by Parliament. Another important convention is that government ministers must have a seat in Parliament (and, in the case of the Prime Minister and Chancellor of the Exchequer, specifically in the House of Commons) in order to hold office. This is a vital aspect of what is known as the 'Westminster system of parliamentary government', providing a direct form of executive responsibility and accountability to the legislature.

--


Diversity is the key to economic and political evolution.
by Cat on Mon Sep 23rd, 2019 at 06:20:02 AM EST
[ Parent ]
US version of IX would be Article I, §6, ¶1 --which also positions Congress "above the law".
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
And while you're at it with the DIY comparative politics study, check Article 1, § 3 before Miss Nancy opens her ignorant, myopic, senile vision of "constitutional norms" again.
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
The apple does not fall far from the tree.

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 23rd, 2019 at 06:52:09 AM EST
[ Parent ]
US version of SCOTUK's "remedy" for controversial "advice" of PM of the day ("government") does not obtain review, because the constitution explicitly proscribes jurisdiction in Article III, §2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. ...In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The constitution does not allow the judiciary any authority to adjudicate disputes ("controversy") between branches of government. Article III affirms Article I, §6, ¶1 indemnity: "they shall not be questioned in any other place." And so serial "test cases" typically fronted by Bill of Rights (1-10; civil litigants) and the current House majority party's futile attempts to delegate its authorities to the judiciary in order to circumvent constitutional authorities of POTUS, rather than revise a whole lot of contradictory federal legislation enacted by prior sessions of the odious.

archived separation of powers
Brexit: Judge rejects parliament shutdown legal challenge
smells like "SCOTUS won't touch it", case or controversy clause

Diversity is the key to economic and political evolution.

by Cat on Tue Sep 24th, 2019 at 01:28:17 PM EST
[ Parent ]
I was not aware of this "Consultation outcome."

Final findings of the call for evidence into UK interest in existing EU trade remedy measures , last update 2 May 2019?

Implementation period

  1. The UK will leave the European Union on 29 March 2019. The UK and EU negotiating teams have reached agreement on the terms of an implementation period that will start on 29 March 2019 and last until 31 December 2020. During the implementation period, EU trade remedy rules and regulations will continue to apply. This would include applying new EU trade remedy measures that come into force during the implementation period.

  2. For any new measures, which the EU puts in place during the implementation period, we will approach any UK producers of the affected product(s). This is to understand whether there is an interest in such measures being maintained once the UK begins to operate its independent trade policy.

  3. We understand that UK production and market share of the products covered by trade remedy measures may change during the implementation period. That may mean that, towards the end of the implementation period, we will need to review some decisions about which measures we will maintain. We would do this based on up to date evidence, in discussion with relevant stakeholders. This activity will not affect the EU's current competence, regulations and process for bringing forward new trade remedies complaints and the initiation of new investigations. UK industry should continue to approach the European Commission for the purposes of initiating new investigations until further notice.
UK parliament is so FOS.

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 23rd, 2019 at 07:39:14 AM EST
SCOTUK's "Marbury v. Madison" case

JUDGMENT, R (on the application of Miller) (Appellant)vThe Prime Minister (Respondent)Cherry and others (Respondents) vAdvocate General for Scotland (Appellant) (Scotland), 24 Sep 2019. 25 pp

Diversity is the key to economic and political evolution.

by Cat on Tue Sep 24th, 2019 at 11:42:59 AM EST
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.

archived
DICTION CORNER
lawful

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.
inadmissible

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.
possessed
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.
vacated
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 ]
The Queen has approved the appointment of Lord (Robert) Reed as the next President of Supreme Court, alongside three new Justices.
The Rt Hon Lord Reed will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom, alongside three additional appointments as Justices.
[...]
Lord Reed will take up the position of President on 11 January 2020. Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively.

Her Majesty The Queen made the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of independent selection commissions.



Diversity is the key to economic and political evolution.
by Cat on Tue Sep 24th, 2019 at 11:54:58 AM EST
UK's ruling [not really] Conservatives to ask for parliamentary break [sic] to hold conference
Britain's ruling Conservative Party will on Thursday ask lawmakers to approve a short adjournment of [the Crown in] parliament next week to allow the party to hold its annual conference, House of Commons leader Jacob Rees-Mogg said on Wednesday.

He said that [the Crown in] parliament would also hold a general debate on "The principles of democracy and the rights of the electorate" on Thursday.

reference
Adjournment motions
Adjournment debates
Recess
"Recess is formally known as a periodic adjournment."

archived Ladies Hale
Remain de facto alliance may well deny Boris any recess
a four-day session with 5-day recess for the minority

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 26th, 2019 at 01:53:31 AM EST
Marbury v (President) Madison (1803)
US Constitution jurisdiction, judiciable case or controversy, limitation of powers: precedent
.
.
.
US American Rhetoric evoking the matter
Barbara Jordan
Sam Ervin
.
.
.
Nixon v US*
district ct. order to produce executive records, subpoenaed by congress, stayed final pending appeal by plaintiff and DOJ-SP (A. Cox) petition for cert by SCOTUS
US v Nixon (1974)
Q: "relevant and admissible evidence"
--
* POTUS before and since test the Q. Oyez summarizes findings of law in opinion that are pertain to current congressional searches for inculpatory evidence of "high crimes and misdemeanors" and trivial litigation of sundry subpoenas for public and private records:
The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice."


Diversity is the key to economic and political evolution.
by Cat on Fri Sep 27th, 2019 at 10:11:46 PM EST

n/17

Diversity is the key to economic and political evolution.
by Cat on Fri Sep 27th, 2019 at 10:22:39 PM EST
[ Parent ]


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

Top Diaries