In the Guardian it says that the Speakers Office have confirmed that parliament can only be reopened if the PM recalls parliament. How does that work if the PM is the one breaking the law to close it in the first place?
If the courts have ruled that parliament must reopen then the obligation to reopen parliament lies with the government and not the Speaker.
The Prime Minister is not above the law, so failure to obey a court order would have legal consequences for the Prime Minister personally.
If the Supreme Court effectively says that Scottish law is invalid, might it not then strike at the acts of Union by which Scotland is part of the Union ?
The Supreme Court will probably take the Scottish ruling into account, as they have to explain why its been gone against it in that scenario.
David Allen Green has explained that Scottish Courts take a different approach to constitutional matters, but they have to have a reason to do so.
Indeed:
Dinah Rose QC @DinahRoseQC
The English HC has ruled that reasons for prorogation are not justiciable - it's not for courts to decide whether they're proper or not. The Scottish court has decided they are justiciable, and that the reasons for the prorogation were improper. SC will have to resolve both Qs.
So the English Court didn't agree nor disagree that prorogation was right or wrong, just that it wasn't appropriate for it make a judgement. Thats a very particular distinction and position.
David Allen Green
David Allen Green @davidallengreen
The English High Court held the question was "non-justiciable" - ie, politics not law
The Scottish court held it was justiciable and also there was improper motive
If Supreme Court says it is justiciable then....
....well
May also find improper motive
Thats why going through the courts in Scotland is so important because it gives a weight to the case in the English Courts and something to support their position - and a very particular angle that the Supreme Court now has to clarify.
I think.
Sources in No10 now hitting back at the Scottish judges, suggesting they are politically biased: "We note that last week the High Court in London did not rule that prorogation was unlawful. The legal activists choose the Scottish courts for a reason".
This was rebuffed by the Lord Chancellor whose duty it is to protect the judiary:
Robert Buckland QC MP@RobertBuckland
Our judges are renowned around the world for their excellence and impartiality and I have total confidence in their independence in every case.
So the later statement:
“The Prime Minister has total confidence in the independence of the judiciary”.
Either means there has been:
- A reversal from No. 10.
- A full on slap down against 'the source at number 10' directly by the Prime Minister.
- Or its a classic Trump tactic of saying two things at once to get a certain message to a core group of voters.
If its no 2, this does tend to suggest there is some conflict between 'a source at No.10' and the PM.
I think we can assume from the professionalism on display that the 'source at No.10' is something of a wildcard - thus there aren't too many numbers you can guess this to be.
If this is the case it seems there's an arguement brewing between Johnson and Cummings. Cummings seems to have wildly over stepped the mark and his authority here, and has tried to directly and deliberately undermine the rule of law.
If its no 3, this is rather more troubling and does back up the idea that Johnson and Cummings are deliberately seeking to erode the rule of law over time, using public outrage to do so.
I can't overstate how dangerous this course of action, potentially is, for a variety of reasons.
www.itv.com/news/2019-09-11/robert-peston-has-cabinet-yet-been-shown-legal-advice-on-why-closing-parliament-is-allowed/
Robert Peston: Has Cabinet yet been shown legal advice on why closing parliament is allowed?
This is fascinating:
Has any member of Cabinet seen the full legal advice given to the prime minister, which persuaded Johnson proroguing or suspending parliament is lawful?
Julian Smith asked for it, on the day Cabinet was bounced into agreeing prorogation.
Amber Rudd asked for it subsequently.
I am not aware that either got it. Instead they received a "trust me" from Boris Johnson.
This could be a problem for him and ministers because the ministerial code, amended after Chilcott Enquiry into the legality of going to war in Iraq, says all ministers have right to see full legal advice - not just summaries - on all contentious issues.
Will Cabinet now get the advice after today’s Court of Session judgement?
For their own self-preservation perhaps they should see it, and have that deferred (ahem) robust Cabinet debate on whether closing Parliament is appropriate.
Now what if this doesn't turn up OR if it does turn up and the legal advice given said prorogation was unlawful but it was ignored by Johnson/Cummings???
Things seem to be getting deeper and messer by the second.
And hey check this out:
David Allen Green @davidallengreen
If the Supreme Court follows the Scottish court and finds that Boris Johnson misled the Queen...
...then he presumably will have to resign.
Remember the Prime Minister is accountable to the Queen. If the Queen can not trust the Prime Minister and this is how the Crown has ruled, there's a bit of a constitutional issue here. Surely?
I'm reading @Cath_Haddon on this who IS a constitutional crisis and she says this:
Dr Catherine Haddon @cath_haddon
This ruling is that it was the PM's advice to the Queen on prorogation is unlawful.
That does not (yet) change the prorogation itself. Though of course will add to pressure
Supreme Court on all this is next Tuesday.
Regardless of the final outcome, it is pretty uncomfortable position for the Palace.
HM acts on the Advice of her PM. For a court to rule that advice was unlawful, even if the ruling is later rejected, opens up qs about how that advice is given. She has to be able to trust No.10
To add, this does not mean prorogation will not be affected. But it has been prorogued. It can be recalled.
That said, given the mood in Parliament, I would not put it past any MPs to turn up to work and try and test the judgement.
Also, we are still working this out ourselves. So bear with me on my responses to the judgement.
So it seems like everyone, including the Constitutional Experts, don't know what happens next or what this means.
That means, we are into full blown CONSTITUTIONAL CRISIS status now.
Which Grieve has pretty much come out and said:
Rachel Kennedy @rachelkennedy84
Grieve: I would hope that the government would realise the extent of the crisis it's created and recall Parliament immediately @BBCNormanS
I know that on Monday there was some chatter about impeachment of Johnson. Which was just that, and not really particularly serious.
However if the Supreme Court agrees with the Scottish Court, and Johnson remains obstructive, I do think the idea of impeachment starts to become a very real one.
However as we've seen with the US, this doesn't mean they would...
I don't know if that explains anything a bit more, or whether that just confuses everyone even more, but thats where my understanding currently is at - but as I said it looks like the constitutional experts are scratching their heads so I'm not sure what hope there is for us mere mortal plebs!