Boris Johnson planning to prorogue parliament [split topic]

[greencalx]

Christ. I know fuck all about this.

I am not sure how the Supreme Court operates in these circumstances. My guess is that they would review the arguments of the lower court(s) and use that to inform their own decision. It doesn't make a lot of sense, from a process point of view, for the higher court to reach its own verdict independently and then simply overrule the lower one. Because then, why have the lower court at all? But this is all guesswork based on thinking this through as an exercise in logical thinking, rather than based on any actual knowledge. Because who needs experts?

(Actually I have some knowledge of how appeals processes work in various different - non-legal - contexts and in each case it's been a review where one asks the question "Was the decision reached reasonable in the light of the information available to them?" New information can make a difference.)

[Pseudopath]

I'm stunned and moderately relieved by the Tories short-sighted hubris on this. It could all be bully-bullshit to lull us into a false sense of security, with deals being done secretly, but they are surely too stupid for that.

A plot 10 months in the making.

[jobotic]

Employment Tribunal Appeals are done on that basis aren't they? If they don't feel that the Tribunal result was wildly incorrect they won't overrule it.

[danielreal2k]

A plot 10 months in the making.

Tom Baker doesn't look too happy about it.

[pigamus]

Yeah, but even that article admits Farage was only there five minutes. I think Johnson looks down on Farage the same way he looks down on everybody else.

[Zetetic]

My guess is that they would review the arguments of the lower court(s) and use that to inform their own decision. It doesn't make a lot of sense, from a process point of view, for the higher court to reach its own verdict independently and then simply overrule the lower one.

Pretty much, I believe:
The point of the hierarchy of courts is that you have to start with specific reason why the previous court was wrong or unjust, and it's those reasons that are then reviewed by the court that you're appealing to it.

Courts can often reject an appeal without actually hearing the case if your reasons and your "skeleton argument" aren't compelling enough to bother continuing. Both the previous court and the court you're appealing to can often reject your request for an appeal (although I guess the previous court is usually more restricted in its reasons why?).

Higher courts tend to restrict themselves in terms of the sorts of reasons and sorts of cases that they'll hear. That's not about a limit of jurisdiction, AFAICT, but something less ... formal? on what's a good and appropriate use of the court.

[danielreal2k]

Dr David Starkey getting excited on LBC just now,  essentially saying 17 and half million people and The Crown have higher power than 3 Judges so they can go fuck themselves.     

[Fambo Number Mive]

The government is refusing to publish details of communications between No 10 aides about Parliament's suspension, despite MPs voting for their release.

Cabinet minister Michael Gove said the MPs' request was "unprecedented, inappropriate and disproportionate".

He said the nine advisers concerned, including Boris Johnson's controversial aide Dominic Cummings, would have "no right to reply".

To go ahead would "offend against basic principles of fairness", he said.

https://www.bbc.com/news/uk-politics-49670123

Can the government be made to publish the documents?

[Jumblegraws]

Just to add to what others have been saying re the appeals process, the criterion for having the appeal heard is that the party lodging it has identified a clear point or points of law on which the subordinate court erred. That is to say, an appeal isn't just a rematch with the same arguments put before a new judge.

Edit to add: in the appeal against the CoS, the Government will probably argue that the court was acting outside its legal powers in judging the seeking of prorogation unlawful.

[greencalx]

That makes sense, thanks.

Edit to respond to the edit: since Edinburgh and London reaches different positions on this, I guess that gives something for the SC to do. My feeling is that they will side with London, but we'll see.

[Endicott]

I think they'll have to argue that the Scots court was wrong in law. Anyway we'll see.

[idunnosomename]

Worrying lack of updates on Johnson's new dog

i regret to inform you doggo has been fucked inside out

[jamiefairlie]

That makes sense, thanks.

Edit to respond to the edit: since Edinburgh and London reaches different positions on this, I guess that gives something for the SC to do. My feeling is that they will side with London, but we'll see.

Not two different verdicts though, two different bodies of law. My understanding is that the SC will have to review the under Scots law as that's where the first case was held under.

[jamiefairlie]

Dr David Starkey getting excited on LBC just now,  essentially saying 17 and half million people and The Crown have higher power than 3 Judges so they can go fuck themselves.   

I do wish TV historians would STFU about politics, it's ruining my ability to watch their shows. Neil Oliver is another one that's been cancelled in my house.

[Clatty McCutcheon]

There are going to be two appeals on the go.

1.  Gina Miller et al appealing against the English High Court's decision from last week that the prorogation is an exercise of political/constitutional power which is exempt from legal review.  They have to overcome two hurdles - (a) - can the judiciary intervene at all?, and (b) if so, has Boris abused or exceeded his powers as PM?

2. Today's Scottish judgment answered (a) and (b) in the affirmative, but the UK Govt. is now appealing that this is an error of law and either the judiciary cannot intervene, or (if it can), Boris has acted lawfully and within his powers as PM.

As they are effectively mirror images of one another, the appeals are understandably being heard together given the common ground being covered.  But the appeals will be framed on their own specific grounds.  And case (1) requires a decision on whether the law of England and Wales has been correctly applied and (2) requires a decision on whether the law of Scotland has been correctly applied.

So it would seem, theoretically at least, that two different conclusions could be reached by the Supreme Court in the appeals, one applying Scots law and the other English, despite both concerning the great elusive beast that passes for the UK's constitution.

All a bit confusing really, innit?

[Spode]

i regret to inform you doggo has been fucked inside out

Rogered. Over and out.

[Zetetic]

That summary is much appreciated, Clatty McCutcheon.

[Jumblegraws]

I'm well outside the extent of my Wikipedia law student abilities, so maybe someone can tell me,since the case is a matter British Constitutional law, what does it mean here for the SC to be viewing the case through the prism of Scots law?

Edit to add: or to put it another way, since the basis for the SoC's judgement would be in strictly British sources of law, their interpretation by Scottish courts would be held to the same jurisdictional standard as any other subordinate British court, would it not?

[Clatty McCutcheon]

That summary is much appreciated, Clatty McCutcheon.

There's a Northern Irish case on the go too, but I think I've succumbed to Brexit/prorogation fatigue for one day so not sure what's happening there!

[Urinal Cake]

I'm well outside the extent of my Wikipedia law student abilities, so maybe someone can tell me,since the case is a matter British Constitutional law, what does it mean here for the SC to be viewing the case through the prism of Scots law?

Edit to add: or to put it another way, since the basis for the SoC's judgement would be in strictly British sources of law, their interpretation by Scottish courts would be held to the same jurisdictional standard as any other subordinate British court, would it not?

It's hard to say there probably only a few academics that have really studied in-depth the intersection of Scots and English law.

Scots Law is probably more civil(continental) law based. Case will not be decided by precedent, more of an investigation by the judges relying on the above academics rather than two cunts arguing with each other.

[Jumblegraws]

It's hard to say there probably only a few academics that have really studied in-depth the intersection of Scots and English law.

Scots Law is probably more civil(continental) law based. Case will not be decided by precedent, more of an investigation by the judges relying on the above academics rather than two cunts arguing with each other.

I understand that distinction, but the Scottish civil courts are nonetheless subordinate to the SC as a principle of stare decisis. Suppose that only the English case had taken place and made it all the way to the SC, and then the Scottish case was actioned later and pursued using the same arguments that were averred in the past weeks. The SC decision would be cited as precedence on which the case would turn. The jurisprudential distinctions of Scots law wouldn't factor into it, surely?

[Urinal Cake]

Interpreting wiki it would have precedential value but not binding precedential value. So could vs should. Binding is not forever the Court can overturn precedent and create a new precedent.

But like I said before I think academics will have a lot of say in how it's interpreted.

[Zetetic]

From the Brexit thread:

The released Yellowhammer document has a redacted paragraph, but luckily we can see which one it was from the leaked document, and, of course, it's the most damning:

Tariffs make UK petrol exports to the EU uncompetitive. Industry had plans to mitigate the impact on refinery margins and profitability, but UK government policy to set petrol import tariffs at 0% inadvertently undermines these plans. This leads to big financial losses and the closure of two refineries (which are converted to import terminals) with about 2,000 direct job losses. Resulting strike action at refineries would lead to disruptions to fuel availability for 1-2 weeks in the regions they directly supply. Government analysis of the impact of no-deal on refineries continues.

But, given that everyone knows of the leaked document, why do this? Another attention sink?

It's not much more damning. Job losses will mostly be in parts of the UK that are irrelevant to the Conservative Party and the Westminster administration.

[mothman]

I'd like to think that Johnson wants to be seen as the sole architect and arbiter of Brexit, and therefore needs to exclude the only other person with a valid claim to that - Farage - as fully as possible. So he needs to do it without Farage - whether he can is another matter.

[jobotic]

To kick Farage who now looks like a maniac, demanding that this happens, whilst giving themselves an excuse for not standing tall and proud come October 31st? Cats out the bag.

[Clatty McCutcheon]

Interpreting wiki it would have precedential value but not binding precedential value. So could vs should. Binding is not forever the Court can overturn precedent and create a new precedent.

But like I said before I think academics will have a lot of say in how it's interpreted.

Yes, Supreme Court decisions in Scottish cases are binding on all Scottish courts, but Supreme Court decisions from other parts of the UK have persuasive status only in Scotland.  Jumblegraws hypothetical belated Scottish case could still be decided differently in Scotland, with the possibility of appealing to the Supreme Court applying Scots Law.

All this litigation is exposing the weird cobbled-together nature of the UK state institutions and constitution. The current Queen inherited both the Scottish and English Crowns due to the Union of Crowns in 1603 but England and Scotland carried on as autonomous states until 1707 when their Parliaments were unified.  So there are centuries of different constitutional conventions up until 1603, a weird hybrid phase from 1603 until 1707, and a haphazard series of partially written-down constitutional stuff in the centuries since.  The different legal systems conceptualise concepts like sovereignty differently.

Modern, sane countries have written constitutions but this weird hotchpotch is what we are still contending with in 2019 and the cracks are showing.

[Urinal Cake]

 Boris wanted an election win with a fuck off majority, no deal, the great brexpression- too bad you're stuck with us.

Now this has come out he can go back and say he's making plans to do his very best to stop this sort of thing.
Then he'll say, 'Remember the blitz? The Germans are back even though you may suffer it will be for the greater good of Brittania please vote for me. You can't trust than those Chamberlainesque appeasers!'

[Urinal Cake]

Scots stuff

English Common Law and the Parliamentary system may be the two most overrated things in the world.

[Johnny Yesno]

It goes to show how much of a credulous dolt I am that I still have, somewhere in the back of my mind, the lingering fear that this is all part of Cummings' 5D chess masterplan.

I don't know why people keep saying this. Cummings himself reckons that if you think he is smart then you don't know any smart people. He does, however, reckon that most people in politics aren't as smart as they think they are, which I think is a fair assessment.

Cameron reckons Cummings is a psychopath, which is rich coming from him, but not implausible. Here's a cautionary article from Paul Mason:

Chaos is being normalised. It is all part of Boris Johnson's pernicious plan
Paul Mason

To expedite his power grab, the prime minister has brought darkness to our democracy and to our streets. We must resist

On Saturday, for the first time in living memory, neo-fascists were chanting the name of the serving prime minister. Supporters of the English Defence League and the Democratic Football Lads Alliance wandered around Whitehall some drunk, harassing random remain protesters and shouting into the faces of journalists until, inevitably, they attacked the police.

It's part of an unnerving trend that's emerged in the past two weeks: the normalisation of chaos.

We have a parliament suspended against its will. We have ministers threatening to break the law. We have allegations that a network of advisers inside Whitehall are using encrypted messaging to circumvent legal scrutiny. And we have briefings to selected journalists that the government might suspend the rule of law by invoking the Emergency Powers Act.

Yet at the end of the headlines there is always the weather and the same jokey riff between a presenter and a hapless BBC political correspondent. Nine out of 10 stories on the front pages of news sites remain focused on dating, food fads and the antics of minor royals.

Nothing in this bleak and blurry picture is happening by accident. Listen to the reported promises of Dominic Cummings: he will "wreck" the Labour party conference; he will "purge" the Tory rebels; he will "smash" Jeremy Corbyn and he reportedly does not care if Northern Ireland "falls into the sea".

This is a power-grab run to a script, whereby every time the government is thwarted by MPs it simply ups the ante: between now and the European council meeting in October, it will stage one calculated outrage after another.

One of the most dangerous factors in this situation is the incomprehension of Britain's technocratic elites. At Eton they might ask pupils to write the imaginary speech they would give while leading a military coup, but on the philosophy, politics and economics course at Oxford, it is generally assumed you are heading for a career in the governance of a stable democracy.

Few are prepared to address the material roots and class dynamics of this crisis, because nobody taught them to do so. But they are clear.

In Britain, as in the US, the business elite has fractured into two groups: one wants to defend the multilateral global order and globalised free trade; another desires to break the system. Here, as with Trump, that group includes the fracking bosses, the tax-dodging private equity bosses and the speculative ends of property and high finance.

Here, as with Trump, the instability they need also suits the geopolitical aims of Vladimir Putin – whose mouthpieces Sputnik, Ruptly and RT are offering quiet support for Boris Johnson's narrative, if not the man himself. But this is also a transatlantic project of the Trump administration. For Trump, the prize of a no-deal Brexit on 31 October is a pliant, shattered trading partner and a potential accomplice for the provocations he is planning against Iran.

The liberal establishment – found in the corporate boardrooms, among the masters of Oxbridge colleges, in law and medicine and among the old-money landowners – does not know what to do. Meanwhile the working class is more divided culturally than at any point since Oswald Mosley tried to march down Cable Street.

I don't want to encourage paranoia, but as a mental exercise ask yourself: if there was a single mind coordinating this crisis, what would it be thinking now?

First, that the fragility of the unwritten constitution is a proven fact. If parliament can be prorogued once, it can be prorogued again. Second, that parts of the British media have no stomach for the task of actively defending the rule of law and the principle of accountability.

Third, that an atmosphere of weariness is descending on the mass of people. They were already weary of Brexit and are now getting weary of endless headlines about a constitutional crisis that never seems to end.

In the 1930s, the psychologist Erich Fromm noted that the ideal conditions for the rise of dictators and autocrats was a "state of inner tiredness and resignation", which he attributed to the pace of life in stressed, industrialised societies.

Among the German working class, Fromm observed "a deep feeling of resignation, of disbelief in their leaders, of doubt about the value of any kind of political organization and political activity ... deep within themselves many had given up any hope in the effectiveness of political action".

It is this above all that we have to fight – like sleep after a night shift – in the next five weeks. Among the urban, educated and salaried working class this moment already feels like the start of the poll tax rebellion. But in small town, deindustrialised communities there is confusion. People in those places thought that Brexit was a rebellion for democracy against the elite, but here's the actual elite – the Queen, Jacob Rees-Mogg and co – shutting down democracy. How we address that mood will determine the outcome of the situation.

Professional politics has come to focus on micro-polling and message testing, but the most instinctive thing to do is get down to a pub this Friday night, in a place you know there's going to be support for Johnson, and calmly argue the toss.

The transparent aim of Johnson is to create a chaotic situation, in which decent people become too frightened by fascists and football hooligans to protest; in which the progressive majority of voters are otherised as "luvvies, climate loons and traitors" – a darkest hour in which, though he created the darkness, he eventually gets to switch on the lights.

We need now to reach across party loyalties and demographic differences to explain face to face: what we're living through is not normal, nor accidental. It's a fabricated chaos. And the road back to normality lies through getting Johnson out of Downing Street.

• Paul Mason is a writer and broadcaster on economics and social justice

https://www.theguardian.com/commentisfree/2019/sep/11/chaos-normalised-boris-johnson-pernicious-plan-democracy

[Johnny Yesno]

As linked in the above article:

How will Boris Johnson react to his new DFLA supporters attacking police?