Thursday 19 September 2019

WTF is the Supreme Court Thinking About?

We're probably all good barrack-room lawyers around here (though no actual lawyers have ever made themselves known as such in BTL comments).  So there can easily be fine points of law we're missing.

But - WTF are the Supreme Court exercising themselves over?

Seems to unqualified me that they are being asked to opine on whether the government's perfectly legal action in advising HMQ to prorogue Parliament, was taken for ulterior motives, i.e. other than that stated (= need to limber up for a Queen's Speech for the forthcoming legislative session).  

So - is the argument that a politican not acting in (someone's assessment of) Good Faith is thereby unable to act in ways that are legal?

As regards the assessment bit, it's fair to say that judges and juries frequently take a view on motivation: some charges that are laid before a court positively require that they do.  So it's OK (I think) for them to consider what Boris' motivation was.

But: are we to allow that "politicians speaking with forked tongues" is a disqualifying factor on the actions they take?  And if so, just how often are the courts going to be invited to intervene?

Take a simple example.  We all know that when Corbyn ostensibly refuses to believe evidence that it was the Russians who let fly with Novichok in Salisbury, it's because he's a lying leftist shit who takes money from RT.  Suppose he was in power, and took this attitude to be a reason to intervene and prevent the security forces from pursuing their inquiries?   Does Gina Miller rush to court to obtain a ruling that his action wasn't in good faith?  

For that matter, what about 90% of the oeuvre of Tony Blair?

Seems to me we have always known politicians speak with forked tongue, and that it's their actions per se that should be the focus of practical attention, not the "window on men's souls" the court is being invited to attempt to open up.  We have other ways to reckon up with them if we conclude they are inveterate liars.

And who knows, in  due course maybe that's what the court will find.

Meantime: what do other amateur lawyers think?



Sobers said...

Its rather like the case I read about earlier today - a man is appealing his conviction for rape, which he was given on the grounds that he told the woman he'd had a vasectomy and she consented to sex, but he was lying and she got pregnant. Now admittedly he's a bit of a poor poster child for freedom, as he is a convicted rapist anyway (in separate cases), but nonetheless, this seems to open a right bag of worms - does the same apply to a woman who tells a man she's on the pill and gets pregnant afterwards? Can he claim he'd never have consented to sex if he'd known the truth, and that he has been raped too?

The courts seem very keen to turn hard luck stories into criminal behaviour these days. One assumes lawyers aren't making enough money and are having to draw themselves ever further into human interactions to make sure they can draw the incomes they take as their right.

Scan said...
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Scan said...

Neo Labour's (i.e. Blair's) entire M.O. was to stuff the institutions full of the "right type" of person for situation just like this. I mean, you want to be confident the correct conclusions are going to be arrived at.

Thankfully, as all regimes do, they got too cocky; went too far too fast, and began to scare the horses. Even more thankfully, McMental crashed the bus and brought it all to an end sooner than it otherwise would have. Meaning they never got to complete their revolution.

Simon Fawthrop said...

It just happens that I was listening to this week's Talking Politics podcast in the gym this morning and it does include a lawyer. It doesn't resolve anything but its a good discussion with good background in to the issues:

In the middle of the epic prorogation battle at the Supreme Court, we ask what's at stake: for the government, for Brexit, for the constitution and for democracy. Is this a case of legal precedent, common law practice or higher constitutional principle? Is the UK constitution becoming more European in the act of leaving the EU? And what are the things lawyers on neither side can say? Plus we ask how Jo Swinson's case for revoking article 50 is going and we discuss whether we could really have a 2nd referendum without another general election. A packed episode! With Catherine Barnard, Helen Thompson and Chris Bickerton.

Episode 185 on Sept 04 has some good background as well. The guest, Kenneth Armstrong, was involved in the Scottish case and it goes without saying he's a Remainer. Still worth a listen.

Available on all good Podcast platforms, as the ad would say.

Elby the Beserk said...


Wrong wrong wrong. Blair's offspring have fill the public services, Quangos and NGOs so that such as he are now the norm WRT to running pretty much damn everything we have to use or interface with.

Indeed, Rudi Dutschke's (not Gramsci, tho' it was his idea not his phrase) "Long March through the Institutions" has taken place. Hence 70%+ of teachers and academics are lefties, and even charities have fallen prey to the Diversity & Equality Brigade.

As for the BBC, well, words fail me.

So what to make of this? Me? Well, frankly, I think we are FUBAR. It will take generations to fumigate all the parasites that have infested all our institutions even were that to happen.

Scan said...

Elby, my point was it isn't quite as complete (and as deep) as it could have been. That's not to say they aren't irreparably damaged.

Raedwald said...

Uhm, as a good amateur lawyer I think I'll wait until I see the ratio decidendi before having an opinion ...

However, I'm happy to wager we won't get the judgement until Monday - proving to the losing side(s) that their lordships have exercised deep, grave and wise cogitation. Even if they know the answer by the end of today.

E-K said...

It puts the Queen on the position where she has to admit she was either naive or complicit. That's if they find against Boris.

Anonymous said...

It's not yet clear whether his (real) reasons for proroguing are relevant or not.

One line of argument against the PM is that if a PM prorogues (technically, advises the Queen to prorogue) for improper reasons such as to evade Parliamentary scrutiny, then his advice is unlawful.

A second line of argument (Pannick is running both) is that if the effect of proroguing is to evade Parliamentary scrutiny, then the (advice to) prorogue is unlawful. On this basis, the PM's motivation is irrelevant.

You refer to the government's "perfectly legal action" in advising HMQ to prorogue, but that begs the question. The legal case against the PM is that the advice was unlawful, i.e. it was not a "perfectly legal action".

I am a lawyer, but commercial law, nothing to do with this constitutional stuff.

Anonymous said...

Whilst there seems to be a lot of blather about Boris being dishonest, it seems to me to be about where the limits of executives power are.

It's a bit awkward as, has been pointed by the Government, Parliament had both the time and instrumentation to limit the prorogation, and chose not to exercise that right. Meanwhile we see a lot of soapboxing - some of which the SC stamped on - but I suspect the court will find in favour of the government, but with some scathing commentary, and potentially add to the constitution time limits to prorogation as Miller/Major have highlighted risks to the current mechanisms.

By the time this is all over I think a lot of the executive power some - Corbyn, McDonnell, for example - saw as part of their potential toolset will have been locked away someplace and Parliament handed the keys.

It's genuinely not a bad thing as these are good questions, and if they're going to be asked, better when its about something the establishment is shitting bricks over rather than something the nation at large is shitting bricks over.

dearieme said...

"One line of argument against the PM is that if a PM prorogues (technically, advises the Queen to prorogue) for improper reasons such as to evade Parliamentary scrutiny, then his advice is unlawful."

Fair enough - point me to the law he's broken in that case. But it won't be settled on law, will it? It will be settled on whim. That, after all, is how the US Supreme Court settles any business that Really Matters around the dinner tables of Washington. Then they justify it with bullshit about emanations from a penumbra. Dear God!

Anomalous Cowshed said...

A couple of points;

There's a definite feature of Blair's general approach to certain things; to generate the perception that he was a moderniser, dragging antiquated processes, procedures and protocols into the white heat of the 21st century. Or something.

Now, while there might have good reasons for any particular action, for example, the GFA, Stormont, and thus the Welsh Assembly and Scottish Parliament, what is remarkable is just how badly the job was done;absent Blair, things fall apart almost immediately.

See also, the FTPA.

What's possibly happened here, is that tactics have gone well beyond informing strategy, into creating doctrine, to deploy a (probably rubbish) analogy.

And the thing that has always bothered me is John Reid. About 48 hours into the job of Home Secretary, following a cabinet reshuffle that if memory serves, wasn't strictly necessary, little Johnny announced that the Home Office was not "fit for purpose".

Cue the Ministry of Justice (use of language, much?), abolition of the Law Lords and the creation of the Supreme Court.

Now, if anyone was paying attention, the initial senior judge in said court, at it's creation, did make comments that suggested that he was well aware that the position of his post, and the Court itself, was somewhat badly defined, and that any decisions of the Court would have to take this into account.

Particularly in regard to the fact that the Court sits right upon the interface between the sole (top down) legal authority, being the Crown In Parliament, and the (bottom up) expression of power, being the Government, existing within the elected Commons, being purely a legislative body, where the the Crown's Loyal Opposition is at least as important as the actual executive.

Cue the first Gina Miller case.

At which point, any considerations about the Court's difficult position go straight out of the fucking window, somewhere around paragraph 82.

And thus we come to v2.0, with Gina Miller flushed with confidence from her initial victory, and now with the backing of a former Prime Minister, John Major, this time with his trousers and underpants worn in the generally accepted correct order, attempts to repeat the trick.

Which leads me the interesting observation that during the first day, a (female) judge observed that the Benn bill had been passed after the prorogation had been announced, and by implication, after three fucking years of dicking around, and ultimately took two fucking days.

Parliament is due to be recalled with about two weeks to go before the deadline.

Personally, given that the number of judges appears to have been increased for this case, I reckon they have finally recognised the trap, and are desperate to avoid it.

They won't really want to find for either side, but the status quo decision would be for the executive.

But I suspect that they would much prefer to find a way to determine that the case is well beyond their jurisdiction.

Anonymous said...

They won't really want to find for either side, but the status quo decision would be for the executive.

As a B-RL who has been to the Supreme Court and "lost", I now have a clearer understanding of how wonderful our legal system is. The SC does not arbitrate, as its role is to clarify the law. They are the final arbiters (apart from EU law) of all legal matters.

To portray the SC judges are being 5th columnists, or biased, or awarding a "win" is to completely misunderstand what they do - and to denigrate the work they do.

E-K said...

O/T but I wish the children (Greta Thunberg protesters) would do it on a Saturday and not a school day.

Of course they're going to take part if it means a day off maths !

GridBot said...

EK - completely agree.

Also can someone please explain to these clowns that they are directly part of the problem. If they are all so damn concerned about saving the planet - give up their car, walk everywhere, no imported fruit or veg, no children, live in a mud hut with no heating, loin clothes only.

Everything in modern life exists to satisfy a demand - it isn't just the way it is for no reason. As consumers they need to drive the market toward their vision of the future if they feel so strongly about it.

They should also; all be in school learning to fundamentals to be Engineers and Scientists etc. in order to come up with feasible technology and methods to combat any problems we do encounter in the future. instead of whinging about it on the street. (I feel like I've read a verbatim opinion at some stage on this blog...)

Rant over.

Anonymous said...

The first Gina Miller case was an outrageous encroachment of judicial power -- effectively to require the government to submit to Parliament in a matter (negotiating a treaty) which has always in the past been the prerogative of the executive.

This case is intended to take the Remainers' tactics further. The Supreme Court is to rule (by a majority, in order not to seem too blatant) that Boris's prorogation was "unlawful". Not "illegal", since that would involve the PM being arrested and becoming a Brexit martyr.

But the Court will not want to be seen to be telling Parliament directly what to do, that being too obvious, besides being contrary to Clause 9 of the Bill of Rights. So they will simply say that it is up to Parliament itself to decide what to do next -- e.g. how about a recall, nudge, nudge?

Effectively that hands power over to Bercow, who recalls Parliament so that MP's can get back to delaying, obstructing, and ultimately denying Brexit. That being their real intention, which the Remainers have contrived to leave out of the case, while at the same time impugning Boris's.

And all of it contrary to the outcome of a referendum which the MP's called, which they promised to respect, and which they are now betraying.

And the prospect of some form of civil war edges a bit closer.

roym said...

Never mind all that, where is the World Cup preview blog?

APL said...

"We all know that when Corbyn ostensibly refuses to believe evidence that it was the Russians who let fly with Novichok in Salisbury"

It wasn't the Russians, it wasn't Novichok, demonstrating with regard to Corbyn, the old addage, 'even a stopped clock is right twice a day'.

dearieme said...

Corbyn a stopped clock? He's a clock running backwards to Lenin.

andrew said...

At least Guido is a good judge

... of wit.

Anonymous said...

As I understand the SC system, the legal teams would have had the decision overnight so items could be clarified.

I would guess that the SC will say that the decision to prorogue is a political one, and Parliament will set the rules. If the Speaker did not object, then the matter is not one for the courts at all.

The ERG will have a new hero in the shape of Bercow.

Anonymous said...

Well done Anon @6:35 - it seems the only thing you were wrong about was it being unanimous and not a majority.