Brexit and the waning days of the United Kingdom

[crazy canuck]

That is why this is such an important decision, Parliaments have been moving to more of an American executive power model without any of the checks in the American system.  This case signals a way back to what Parliament is supposed to be.

[Iormlund]

Not a good start, Boris.

[The Minsky Moment]

Seems to me the Crown should have an independent legal counsel's office to give impartial advice on issues like this where the PM is conflicted.  If your are going to have a monarchy you shouldn't put the monarch in a position where she is forced to participate in an abuse of prerogative power.

[celedhring]

Seems to me the Crown should have an independent legal counsel's office to give impartial advice on issues like this where the PM is conflicted.  If your are going to have a monarchy you shouldn't put the monarch in a position where she is forced to participate in an abuse of prerogative power.

Or they should just write down the rules clearly. Or at least write them down.

I think this crisis is showing the limits of a constitutional framework based so much on convention, in particular pertaining to the relationships between the constitutional powers when one of them engages dishonestly.

[Oexmelin]

Written or not written doesn't do much. The Americans have a written constitution and it hasn't prevented the erosion of power. Constitutions, and legitimate orders more broadly, exist in the minds and boundaries of people before they exist in institutions. A written constitution leads malicious agents to litteralism. An unwritten one, to innovations. At least, unwritten constitutions do not mislead people in thinking they are safe because it's written.

[garbon]

A written constitution leads malicious agents to litteralism. An unwritten one, to innovations.

That seems a bit simplistic.

[OttoVonBismarck]

Going to have to disagree, there may be some advantages of an unwritten constitution, but not many. It's genuinely constitutionally and legally unclear what "real" powers either the Prime Minister or the sovereign for that matter have in the British system. The British Supreme Court has basically fleshed out some boundaries today, although its constitutional basis for doing so is minimal. The court is making law now. Which isn't necessarily bad. But I think a system with a relatively new and powerful institution like the Supreme Court would benefit from more clearly written and unambiguous rules about the parameters of government.

As you note a written constitution isn't a special guarantee of anything, but an unwritten one even those with good intentions can only vaguely work within the boundaries of it, since the boundaries itself are vague. I lean towards thinking jurists and other political operators should have more clearly delineated rules.

[Oexmelin]

A written constitution leads malicious agents to litteralism. An unwritten one, to innovations.

That seems a bit simplistic.

Because it is. Just like the suggestion that a written constitution is a remedy to what ails Britain. I am happy to engage in a more nuanced discussion if the thread goes that way.

[Admiral Yi]

A written constitution leads malicious agents to litteralism.

Only malicious agents? 

[Oexmelin]

No.

[OttoVonBismarck]

"Remedy" for Britain's larger problems—absolutely not. "A better framework for sorting out the specific intersections of historical and still legal but rarely used sovereign prerogative powers vs the specifics of the fixed term parliaments act vs specific powers of Parliament to compel Prime Ministerial action", yes.

[Razgovory]

Written or not written doesn't do much. The Americans have a written constitution and it hasn't prevented the erosion of power. Constitutions, and legitimate orders more broadly, exist in the minds and boundaries of people before they exist in institutions. A written constitution leads malicious agents to litteralism. An unwritten one, to innovations. At least, unwritten constitutions do not mislead people in thinking they are safe because it's written.

It has not been a pleasant learning experience. 

[Sheilbh]

So, are you guys going fully ahead with that 1640 reenactment?

This case is more 18th century: a good old-fashioned Tory government being slapped down by a good old-fashioned Whig court citing case law against Stuart Kings ("the King hath no prerogative, but that which the law of the land allows him" - against James I/VI).

But you're right this fight between Parliament and the government is so extraordinary because it is so 17th century. I disagree with the government on its policy and the way it's going about it, but I'm really uncomfortable with the fact Parliament is basically muscling in to decide the negotiation of a treaty with a foreign power - the ultimate preserve of executive power. It's a question of politics, not law, but Parliament literally writing a letter for the Prime Minister to give to the EU as a delegate is insane I can't think of anything like it since the Restoration.

Not a good start, Boris.

The prorogation has been a disaster. He lost his majority over it (currently majority of -45); forced his opponents to co-operate on a no no deal bill; and has this humiliation. Dominic Cummings will say it's good because it allows for a Parliament/elite v the people narrative and unite the leavers. But the one thing I've found striking is only around 50-55% of Tories or leave voters approve of the PM on this, proroguing in general or not following the law. Politically I think they're underestimating the impact of small c Conservative voters or the 30% of Tories who are remainers either going Lib Dem or just not turning up on election day.

Written or not written doesn't do much. The Americans have a written constitution and it hasn't prevented the erosion of power. Constitutions, and legitimate orders more broadly, exist in the minds and boundaries of people before they exist in institutions. A written constitution leads malicious agents to litteralism. An unwritten one, to innovations. At least, unwritten constitutions do not mislead people in thinking they are safe because it's written.

There's nothing wrong with literalism, the UK courts are literalist. The US innovation I find baffling is originalism which, from my understanding is jurisprudence by fan fiction.

One perspective is an unwritten constitution protects conventions better because they are of constitutional value though I'm not sure that's the case here.

The British Supreme Court has basically fleshed out some boundaries today, although its constitutional basis for doing so is minimal. The court is making law now. Which isn't necessarily bad. But I think a system with a relatively new and powerful institution like the Supreme Court would benefit from more clearly written and unambiguous rules about the parameters of government.

I'm not sure that bit is innovative. The Supreme Court legally has no more powers than the House of Lords though they have maybe become more assertive on some issues. But the constitutional basis of the courts setting the limits of the executive using its powers is very solid, as I say they go back to 1611 and 1765 with cases the US founders were familiar with.

If they were overruling Parliament that would be extraordinary, but the courts have always said whether the executive can do something and if there are limits on its power. It is extraordinary circumstances because of the political situation, but it's not extraordinary for a group of British lawyers to say Parliamentary sovereignty is fundamental, or to limit the executive.

Unrelated but a couple of points from the judgment - this is a really clear description of how our system works in theory and the issue:

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 Parliament in holding the Government to account.
The answer is that of course it did.

Also this is quietly damning on Johnson based on the government's evidence (and lack of sworn witness statement or affidavit):

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.

[Malthus]

The US has a written constitution. Yet it has a crisis even worse than the UK: a President who is openly criminal and traitorous, with no apparent practical remedy.

[The Minsky Moment]

And yet that written constitution seems to have blunted some even worse outcomes.