Westminstenders: Supreme Democracy

[RedToothBrush]

Tuesday is the big day about prorogation.

The Supreme Court hears the case of Cherry and Miller against the government.

This could test the constitution and the union. The Supreme Court sits as both as a Scottish Court and and English Court and applies Scottish / English law accordingly. And there are differences. It is possible that prorogation might only be illegal under one or the other but would have effect on parliament. Or its possible that the Supreme Court might decide to uphold the government position.

What is encouraging is the constitutional expert blogs which suggest that they lean to the court intervening. It's important that for the A50 case the Supreme Court referenced the arguments in these blogs.

But let's not get too carried away.

As it is Joe Moor, former director of legislative affairs at 10 Downing Street wrote in today's Telegraph that Johnson could merely prorogue again from Oct 14 "until at least Nov 6" thus preventing parliamentary scrutiny of no deal which would help enable in effect illegally. The Times also reported Cummings as having said this to advisors.

This has been dismissed by legal experts, but the point remains there is a willingness to both frustrate parliament and be as obstructive as possible in the days leading up to 31st.

There is also the 'Nobile Officium' Court action designed to stop illegal no deal by allowing the courts to write a letter to the EU to request an extension of Johnson refuses to.

It remains to be seen if it has even a chance of success.

The British press has been full of comments of optimism for a deal this weekend. This is after there was positive noises in a similar vein from Brussels. These has since been largely dismissed as mere political will with no practical progress. The British optimism has also been dismissed as mere posturing. And Priti Patel "misspoke" when she appeared to suggest that no deal was no policy this morning.

Other rumours include the French willing to grant a 2year extension but not a 3month one out of fear this will happen repeatedly. The French are now pushing for a deal and relaxing their approach as such (but Germany won't compromise the single market and Ireland the GFA so its all talk).

And do not forget, for all the talk of a deal there are certain time restrains.

Apparently Nikki da Costa has a timetable to get a deal through parliament in 'just ten days' on a spreadsheet. So that gives you an idea that the 19th October is possibly the last day to get a deal in front of parliament if you completely accept that we are leaving without any extension. This neglects the issue that a new deal isn't on the table from the EU and the backstop isn't going anywhere.

A last minute deal or no deal situation is highly risky with the ERG on one side and hard core Remainers who think Johnson won't defy the Benn Amendment and thus will try and block a deal to the last

It seems that we will have a game of cat and mouse until the bitter end.

Thank you notareallawyer x

Can some kind person please remind me of the latest on the ruling that all the phones/WhatsApp of everyone etc re prorogation should be made available?

Keen is struggling a bit, I think. He's not as polished / prepared. He's struggling with the questions.

From what I can understand, Keen said that under HoC Standing Order 13, the Commons can be recalled ONLY at the request of the Executive and if in national interest, not an issue for Judges.

He is also arguing that it's not 5 weeks that have been lost, but 7 working days?

I think they will break in a mo for the day.

I think Keen did not do too well there .

I'm not so sure about Keen doing badly.

We have to remember both sides are coming at this from a different perspective.

Keen is basically arguing that the prorogation is not justiciable. If so, the reasons are irrelevant.

Pannick is arguing the reverse.

So with that said, even if Keen seems to be doing less "well" on the reasons for prorogation it's still not the main thrust of the argument.

What's more interesting is him setting out the argument that Parliament could have prevented prorogation and that in itself makes it non justifiable and secondly the historical precedents where parliament was prorogued for political reasons.

If the Judges agree with him on the above then the reasons for this prorogation are irrelevant.

I think that Keen did what he could in the circumstances.

I think the issue is narrowing down on why was the prorogation so long i.e. across the conference recess. It takes away the power of Parliament to determine the length of the recess and shots down all parliamentary business in both Houses. During a recess the HoL might well have stayed sitting and Committees and written questions would still have been active.

shuts not shots

I thought the Fire Brigades case said something like a failure by Parliament to act doesn’t mean the courts automatically don’t have jurisdiction

Only watched a bit of Keen + the Guardian live commentary but most of the points I saw him raise had been anticipated by Pannick in the morning.

Eg, IIUC (and IANAL, so may not have), Pannick agreed in advance that it can be legal to prorogue Parliament for political reasons, but argued that this is not a blanket permissibility.

IIUC, Pannick argued that it was not legal for someone to prorogue Parliament in order to interfere (or so that it has the effect of interfering) with Parliament's ability to oversee the executive, and that it is the interference with Parliamentary oversight of the executive which is the illegal bit, not the fact that this is political.

Chaz that's something that doesn't seem to have been picked up on.

The prorogation not only prevented the HoC debating legislation but ALSO stopped the work of the parliamentary committees and debates in the HoL.

The concept that x working days were lost only takes into account the HoC activities when arguably the days "lost" by the committees/HoL is just as relevant.

Recess and prorogation are not the same but Keen seems to be trying to argue that the effect was - which I don't agree with.

What's more interesting is him setting out the argument that Parliament could have prevented prorogation and that in itself makes it non justifiable

Not been watching, but what were his arguments that Parliament could have prevented prorogation? Wasn't that the reason for the HoC's fury, that it wasn't something that they could alter?

He can't possibly be arguing that because the HoC voted against (ro rather, not in high enough numbers) to overturn the FPTA that that makes it non justiciable?

Overall very impressed by Pannick.

As perking posted he did a good job of anticipating Keen's opening remarks.

I think an issue Keen faces with the non-justiciable point is that there is a strong argument made by Pannick and others that no power is unfettered. Even if prorogation can be used for political purposes there has to be a point where shutting down Parliament for an excessive time is an abuse of that power. This is why Lord Keen will focus on 7 days and Lord Pannick on 5 weeks. The Justices have already picked up on the loss of Parliamentary business and the fact that a full conference recess was not a given.

Pretty from Joshua Rosenberg

"Keen: parliament had the means to decide whether or not it would be prorogued by passing legislation. It’s not for the courts to intrude."

twitter.com/joshuarozenberg/status/1173961810212528128?s=21

He's basically saying parliament could have used the time prior to prorogation to vote for legislation to stop it.

The thing is due to the announcement of the prorogation they were rather busy pushing legislation through to prevent no deal in very, very tight timescales.

The argument however is they could have used the time to prevent prorogation and THEN tabled the legislation to prevent no deal.

This however assumes non prorogation legislation would have passed.

I think the Advocate General did his best with a poor hand. In partcular, the suggestion that govt. can do what the fuck it likes because it has done before. All that was in the days before judicial review, and in any case, if I do fifty in a built-up area and get away with it, that is not a defence when I am nicked for doing it again.

Their Judgeships also seem very interested in getting him to concede that his client will comply with the court if they lose. Because not to do that would be contempt of court, for which you can go to the Scrubs.

Parliament could have prevented prorogation by a VoNC and replacing the PM

The various Scottish Law Officers get confusing: you have the Advocate General, who is the Westminster Government's senior legal representative in Scotland, and then you have the Lord Advocate, who is the Scottish Government's most senior legal representative.

And then you have the Attorney General, the Lord Chancellor and the Solicitors General for the respective jurisdictions

Good point BigChoc - a VONC could also have prevented the prorogation as well as other legislation being passed.

It's a good argument from Keen.

Of course you can respond that the prorogation itself reduced the options the HoC had to fight it - but there were options...and the HoC gave precedence to passing the Benn Bill and in doing so missed the opportunity to stop it. Having done so, it's not the job of the courts to intervene because they felt other legislature was more important.

If the Judges agree with this line of reasoning then he's onto a winner.

Can you imagine the field day that fine legal reporter, Charles Dickens Esq, would be having with these names?

Pannick, who isn't.

Vs Keen, who doesn't seem to be.

Again, I think Pannick anticipated Keen's argument (that Parliament could have stopped prorogation but didn't, therefore it's none of the courts' business) in the morning with the Fire Brigade case highlighted by BigChoc.

www.newstatesman.com/politics/brexit/2019/09/week-supreme-court-must-come-age

Interesting article...

I am not sure about the VONC argument. The result wasn’t guaranteed. The rebels hadn’t rebelled prior to the Benn bill. So it didn’t guarantee that Parliament could prevent the prorogation.