Brexit and the waning days of the United Kingdom

[Sheilbh]

Yeah. And ultimately the courts can't resolve the political failing in both our constitutions. In the US there are no political consequences for Trump by Republicans who hold the Senate; and in our system there's no way to resolve a Parliament allowing a government with a majority of -45 to carry on as a zombie government. These, ultimately, are political not legal failings.

[Malthus]

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

As we have seen, the unwritten UK constitution seems to have just blunted a bad outcome - forcing the government to reverse prorogation.

[Sheilbh]

No government minister to defend themselves on Newsnight. Luckily it does appear we will be treated to the constitutional stylings of Mark Francois

Also, how still and peaceful the Tory party:

Tory Brexiters rally around Johnson after supreme court defeat
Anger directed at attorney general, Geoffrey Cox, and Dominic Cummings instead
Rowena Mason and Heather Stewart

Tue 24 Sep 2019 20.24 BST
Last modified on Tue 24 Sep 2019 21.20 BST

Eurosceptic Conservatives have rallied round Boris Johnson urging him to hold his nerve and push for a general election, with little sign they blame him for the humiliating supreme court judgment that ruled his advice to the Queen was unlawful.

Anger within the party was directed more towards Geoffrey Cox, the attorney general, and Dominic Cummings, the prime minister's senior adviser, who is the architect of his Brexit strategy.

A cabinet source said that while ministers were shellshocked by the chaos they were not in the mood to ditch Johnson on the eve of a general election when he was still leading in the polls.

The source said Cox was being blamed for advising ministers that the prorogation was completely lawful and there would be no problem with it. There was some fury too at Cummings, with one Eurosceptic former cabinet minister saying: "I thought he was fucking stupid to appoint Cummings and I told him so at the time."

Few Tory MPs publicly criticised Johnson and cabinet ministers avoided the airwaves after No 10 ordered them not to give any media interviews or comment on the ruling via social media.

It was left to the former Tory MPs who were kicked out of the party by Johnson to criticise his strategy. Sir Nicholas Soames said the prime minister had "accepted and implemented some very very bad advice on prorogation and the wider Brexit strategy", while former leadership contender Rory Stewart said No 10 was "panicking" and "trying to drive through a Brexit that was always impossible".

A number of Eurosceptics ignored the directions from the Tory whips to keep quiet, breaking ranks to criticise the court judgment and rail against Labour for refusing to allow an election.

Steve Baker, the chair of the hardline European Research Group (ERG), rallied to Johnson's defence, saying it was "not a mess of his making".

"Of course it's a profound constitutional crisis and this definitely deepens that crisis. I would observe it's not just me and the prime minster who disagree with the judgment. It's also the lord chief justice, the master of the rolls and the president of the Queen's bench, who heard the case beforehand. It's an odd position that more senior judges ruled differently," he said.

He attacked Labour's plan to "hold the prime minister hostage in Downing Street" by refusing to allow an election. But even with the prime minister's options narrowing to take the UK out of the EU by 31 October, Baker indicated he was unlikely to vote for any deal brought back from Brussels that was in any way similar to Theresa May's version.

"I will not sacrifice the long-term future of the UK for some short-term expedient, whatever pressure we are put under," he said. "What I will not do is make the UK a kind of prison state even less able to escape from the EU indefinitely."

David Davis, the former Brexit secretary, blamed what he claimed was the increasing tendency of the courts to interfere in politics for Johnson's defeat.

"All the calls for him to resign are just nonsense. The rules have changed. When the rules change, everybody gets caught by the new rules even when they are still obeying the old ones," he said.

He predicted that Johnson could still clinch a Brexit deal in time to leave the EU on 31 October. "All of his avenues have become narrower. This will be very messy, and fudgy, but he can do it."

Others were more critical of the supreme court judges, despite warnings from Robert Buckland, the justice secretary, that they should be respected. Nigel Evans, a Tory MP on the 1922 committee of backbenchers, tweeted that he hoped that "judges know people really angry at this and only remainers happy", adding: "I'm sure they will live with it but we will fight on until HMG delivers the new programme which will not include closing all private schools and acquisition of their assets amongst other things."

David Thomas Charles Davies, another Eurosceptic, added: "I stand with prime minister Boris Johnson who is doing everything possible to deliver on the clear result of a referendum in the face of a powerful pro EU establishment. They want the PM to resign - but they don't want an election."

[OttoVonBismarck]

Unless I'm mistaken Sheilbh, while there is court precedence limiting the executive power, I'm not familiar with court precedence ruling the sovereign's order in council is outright null and void. I'm familiar with Coke's famous admonishment of James I--and even before that time the English Kings almost never had a history of truly being above the law (even the pre-Norman Anglo-Saxon Kings as best we know were operating within some system of laws that they couldn't simply ignore at whim.) In Coke's ruling against James he basically was saying the King didn't have the legal authority to arbitrarily decide to sit as trier of fact in a court hearing, as he wasn't fit to function as a magistrate under the law, despite being the "fount" of the law itself.

The royal prerogative to prorogue on the other hand has a long, albeit not recent, history of being used specifically to undermine Parliament's ability to decide certain matters. And while many of the royal prerogatives boundaries have been fleshed out by statute over the years, and limits to prorogation even still, I don't believe any statute specifically limited prorogation such that the order in council was invalid. In poor taste that Boris requested it, sure. But the royal prorogation power like all royal prerogatives is supposed to be exercised under the proscriptions laid out in the law, which I believe this actually was. It was just done in a way that "violated norms." 

This is a true case of the Supreme Court engaging in Marbury v. Madison or even Roe v. Wade style judicial ruling, in which the court has determined it has the ability, absent law or precedent, to create new law and precedent. To my knowledge while Britain is where we inherited our conception of judicial precedent, it's unusual and historic for the British supreme court to not base its ruling on interpretations of laws passed by Parliament but on its own judgement about what is Parliament's unenumerated "constitutional prerogative" in a case like this. It's not exactly a crackpot view, British legal writers all over the spectrum and people from Nicola Sturgeon to Jeremy Corbyn are calling this a major constitutional change for the decision to have happened.

[Sheilbh]

The courts have always held jurisdiction over prerogative power. The traditional position was that the extent of the court's jurisdiction was to confirm whether a prerogative power existed (hence James I and Entick) - if the prerogative didn't exist then the Crown can't do it. And they have confirmed back in the 1920s that once Parliament infringed on a prerogative power it was in abeyance; statute always prevails.

However in the 20th century that traditional position shifted. My understanding is that it was largely was the development of judicial review for statutory powers which started to develop in the 1940s. The basic issue was why are discretionary powers granted by Parliament subject to judicial review, but discretionary powers held as a residue of the powers of the Crown are not?

The key case is GCHQ which was in the mid-80s when the courts rejected the hampering of our administrative and constitutional law by the "clanking of medieval ghosts". The court couldn't find a principal, beyond tradition, that if a minister hampered the rights of a citizen under a statutory power they could be stopped, but if they did the same act under a prerogative they couldn't. So the courts said prerogative are subject to review, because the source of the power doesn't matter, what matters is the nature of the power. Is it something that the courts can apply a legal test or limit to, or is it intrinsically political? If it is it's non-justiciable and the list in GCHQ didn't include prorogation though it did include dissolution (now superceded by the Fixed Term Parliaments Act) as well as things like making treaties, defence of the realm, appointing ministers etc as non-justiciable. The power of the courts to review prerogative was "well established" and accepted by all parties, it's standard law now that the mere fact a power is prerogative doesn't make it non-justiciable.

So the justiciability question was just about the power to prorogue. And the court's view is basically can they identify a standard, or a principle which applies to the use of that executive power in exactly the same way the would an executive power granted by Parliament. The courts can't do that for foreign affairs or appointing ministers or using the armed forces. But prorogration is a mundane procedure by which Parliament is shut down (typically for a short period) before a Queen's speech or a dissolution.

You're right it's the most difficult bit, but I thought if they decided it was justiciable then the government would lose. And in modern history it has been used politically, for example in 1948 when we had a Parliamentary session of one day so Labour could pass the Parliament Act. But that was to give effect to the will of the Commons (the democratic bit of the constitution) which is different than using it to frustrate Parliament.

This is a true case of the Supreme Court engaging in Marbury v. Madison or even Roe v. Wade style judicial ruling, in which the court has determined it has the ability, absent law or precedent, to create new law and precedent. To my knowledge while Britain is where we inherited our conception of judicial precedent, it's unusual and historic for the British supreme court to not base its ruling on interpretations of laws passed by Parliament but on its own judgement about what is Parliament's unenumerated "constitutional prerogative" in a case like this. It's not exactly a crackpot view, British legal writers all over the spectrum and people from Nicola Sturgeon to Jeremy Corbyn are calling this a major constitutional change for the decision to have happened.

It is a major constitutional change, but I do think that's between the executive and the legislature rather than the role of the judiciary. It could be a Marbury v Madison as a court coming of age - the ECJ explicitly said its ruling on Article 50 was its Marbury v Madison moment. But I don't think it is, because the court has been very narrow on this and aren't really asserting any great principle. It's basically saying they are fulfilling their traditional role of reviewing the use of power and whether there are any legal limits on that power - from statute or common law - and finding that there is a common law principle of parliamentary sovereignty which does limit this power.

The UK courts will refer to common law principles, which again dates back to the 20th century. In Scott v Scott (about a divorced woman being sued because she took notes of her in camera divorce hearing), which one of the Law Lords said: "What has happened is a usurpation – a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."

So in the same way that a prerogative can't overrule statute, it also can't be used to override common law constitutional principles - so there is a common law principle of open justice. There's also been cases on access to justice, using prerogative powers to seize private property without compensation and separation of powers (the government can't use prerogative powers to stymie a statute by Parliament) for example. What we now know is that parliamentary sovereignty is also one of those common law constitutional principles which wouldn't shock any English lawyer, but I don't think is in any specific statute. As I say this is the flipside of our unwritten constitution - it protects "norms" because they are part of our common law constitution.

The court's conclusion and our new standard is, as I say, very narrow: "a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course."

One other point which I don't know enough about and didn't matter in this case, but the Scots constitutional law does refer outside of precedent because it is semi-civil law. It does refer to Roman law and to maxims and old 16th century textbooks - that side is alien to me, but it is an equal law in the UK.

[Tamas]

this fight between Parliament and the government is so extraordinary because it is so 17th century

That kind of sounds sensible to me. The current setup, customs and laws have their foundations in the late 17th century don't they? They have been refined, expanded, built upon, but the continuity has been deliberately maintained.

So, if you have an issue that impacts the core of the system, it is bound to be around 17th century level issues.

[Tamas]

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.

I strongly disagree with this. A criminal executive taking control with the state not being able to contain him can be seen in Russia, Turkey, or Hungary. We have seen the exact opposite in the US. Sure, Trump has been terrible and caused a lot of damage in various areas, but the checks and balances are holding.

[mongers]

11.30am - The Houses of Parliament resume. 

[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.

I strongly disagree with this. A criminal executive taking control with the state not being able to contain him can be seen in Russia, Turkey, or Hungary. We have seen the exact opposite in the US. Sure, Trump has been terrible and caused a lot of damage in various areas, but the checks and balances are holding.

I disagree that they are holding.

Sure, the US has not become Russia overnight (which, I may point out, has a written constitution: http://www.constitution.ru/en/10003000-01.htm ). Thankfully, that isn't (yet!) the relevant comparison for this argument - which is to the UK.

What you are seeing in the US is a President who openly commits acts degrading democracy and the rule of law - in the latest, using his powers to pressure another nation into 'investigating' Biden's son; in short, using the power of the state to do down a political rival.

That's nowhere near the same severity as the stuff that goes on in Russia, but it isn't good either. There is talk of impeachment. This will probably go nowhere, reinforcing the problem: if he gets away with this, we can expect another step down the same road. 

The contrast is with the UK, as I've said. There, the UK version of Trump prorogued parliament, arguably a step degrading to democracy, and was promptly slapped down by the courts - despite the lack of a written constitution.

[Josquius]

On a lighter note.
A brief video with the best reason for voting brexit I've ever heard.
https://streamable.com/rp18v

[crazy canuck]

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.

I strongly disagree with this. A criminal executive taking control with the state not being able to contain him can be seen in Russia, Turkey, or Hungary. We have seen the exact opposite in the US. Sure, Trump has been terrible and caused a lot of damage in various areas, but the checks and balances are holding.

In what way are they holding?

[chipwich]

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 issue isn't with the constitution, it is with the ~50 traitor senators who were voted in by several million traitor voters.

[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 issue isn't with the constitution, it is with the ~50 traitor senators who were voted in by several million traitor voters.

That *is* an issue with the constitution. The whole point of 'checks and balances' was to ensure that no element of the system of democracy could get hijacked by bad actors - something the founding fathers were very concerned about. If the system gets hijacked by bad actors, then the constitutional machinery has a problem.

The debate is this: which system has demonstrated more frailty in this respect - the US, with a written constitution, or the UK, with an unwritten one?

My point is that it is not at all obvious that current events are demonstrating the practical superiority of the first over the second. It could be the case that both systems ultimately depend on a third factor - call it a sense of honor, a custom of paying at least some deference towards the notion of good governance or whatever - and it is this, and not the specifics of what is written down or not, that is important.

[Oexmelin]

It could be the case that both systems ultimately depend on a third factor - call it a sense of honor, a custom of paying at least some deference towards the notion of good governance or whatever - and it is this, and not the specifics of what is written down or not, that is important.

Yes, this was my point a few pages ago. The format changes the manner in which political and constitutional arguments are made, which has its importance, but it is never a protection against subversion.

[Razgovory]

Which countries Constitution has held up better requires a date when we can consider the British Constitution as coming into effect.  The US Constitution very clearly failed in 1861. and has it's ups and downs since then.