Brexit Encore

[Manoli]

@AlanKlein

Alan, yesterday alone you posted 14 times in this one single thread. I’d respectfully suggest that you spend more time reading and researching rather than simply shooting off the first thing that comes into your head.

I’m sure it’ll help improve both content and tone to the benefit of all who are following this topic.

[Jeremy Roussak]

A king or queen is a Sovereign, like God, and everyone else is a Nobody by comparison.

How quaint. We abandoned the concept of the divine right of kings some centuries ago.

Jeremy

[Alan Klein]

The government, had a legal power to prorogue parliament, but it was litigated and the argument was that the government were acting in bad faith and the real intention was to suppress the role of parliament.

A government, facing a legal challenge of bad faith, needed to put down a witness statement from a minister or a senior civil servant explaining how the decision was made.  That is what should have happened. For some reason, a witness statement was not put in in this Scottish case, and in the final  judgement that has turned out to be crucial.

In the absence of an account by the government of why they took this decision to prorogue parliament it became open to the Scottish judges to infer, in the absence of a positive plausible explanation, that there was a bad motive, that it was being done to stop parliamentary scrutiny.

Unanimously, all three Scottish judges said that the failure of ministers to offer a convincing reason for suspending parliament led them to rule that the motivation was to avoid scrutiny and push through Brexit on October 31 with or without a deal. The only explanation for this prorogation is thus ‘improper motive’. And if it's improper motive, then it's unlawful.

So why wasn't a witness statement submitted by the government? That's where things get more interesting.  The reason there wasn't a witness statement is because it seems that nobody would risk the legal peril of signing it. As it's a criminal offence to knowingly mislead a court, it would appear that something prevented somebody happily signing a witness statement explaining the true reason why prorogation was sought.

.

That's a good response and clarifies a few things. Better than your other post.  But it raises two questions.

1. Isn't it the PM who has to sign the statement, not others?  After all, it was he who saw the Queen and could be the only one who knows what he told her.
2. Don't both sides have a right to argue their case before the final upcoming court?  If so, couldn;t the PM present and swear and sign the statement at that time to complete the record? 

[Alan Klein]

How quaint. We abandoned the concept of the divine right of kings some centuries ago.

Jeremy

And here I thought it was still Merry Olde England, Camelot, and all that. 

[jeremyrh]

@AlanKlein

Alan, yesterday alone you posted 14 times in this one single thread. I’d respectfully suggest that you spend more time reading and researching rather than simply shooting off the first thing that comes into your head.

I’m sure it’ll help improve both content and tone to the benefit of all who are following this topic.

I admire your optimism :-)

[Rob C]

I admire your optimism :-)

Hope makes the world go round.

But holding your breath can make you faint.

:-)

[faberryman]

Alan, yesterday alone you posted 14 times in this one single thread. I’d respectfully suggest that you spend more time reading and researching rather than simply shooting off the first thing that comes into your head. I’m sure it’ll help improve both content and tone to the benefit of all who are following this topic.

Don’t hold your breath. He has already said he would rather blow his brains out than do so. He has no real interest in the topic at hand. He is just trolling, waiting for someone to say something he disagrees with so he can launch in on a right wing ideological harangue.

[Manoli]

Don't both sides have a right to argue their case before the final upcoming court?  If so, couldn;t the PM present and swear and sign the statement at that time to complete the record? 

Indeed they both will. The Supreme Court is, unsurprisingly,  supreme. They will reach theor own decision (due on the 27th September) independently. It's not a 2-1 football game. so there's no 'record to complete'.

But they (the government) will need to be 'careful' - last week parliament passed a 'bill' requiring certain civil servants and possibly some ministers (not sure of who's named) to surrender both official and private communications since Johnson became PM. If they get caught 'lying' expect 'the shit to hit the fan'.

Read this:
https://www.independent.co.uk/news/uk/politics/brexit-boris-johnson-parliament-no-deal-vote-operation-yellowhammer-dominic-cummings-a9098311.html

The court hearing is next Tuesday the 17th and will be broadcst live ( you'll be able to watch through your browser) so I recommend an early start and a 'fun' day in front of the tv ... If you do tune-in look for a bloke by the name of David Panick QC who'll be going for the jugular on behalf of one Mrs Gina Miller. So far he's got a 2-0 winners scorecard against the government and he'll be looking for the third (known as a 'hat trick' in the UK)

You'll enjoy the experience.

[Alan Klein]

Indeed they both will. The Supreme Court is, unsurprisingly,  supreme. They will reach theor own decision (due on the 27th September) independently. It's not a 2-1 football game. so there's no 'record to complete'.

But they (the government) will need to be 'careful' - last week parliament passed a 'bill' requiring certain civil servants and possibly some ministers (not sure of who's named) to surrender both official and private communications since Johnson became PM. If they get caught 'lying' expect 'the shit to hit the fan'.

Read this:
https://www.independent.co.uk/news/uk/politics/brexit-boris-johnson-parliament-no-deal-vote-operation-yellowhammer-dominic-cummings-a9098311.html

The court hearing is next Tuesday the 17th and will be broadcst live ( you'll be able to watch through your browser) so I recommend an early start and a 'fun' day in front of the tv ... If you do tune-in look for a bloke by the name of David Panick QC who'll be going for the jugular on behalf of one Mrs Gina Miller. So far he's got a 2-0 winners scorecard against the government and he'll be looking for the third (known as a 'hat trick' in the UK)

You'll enjoy the experience.

Your first paragraph is contradictory. I don't understand it. Could you clarify?

[Slobodan Blagojevic]

... so there's no 'record to complete'.

I assume the word was used in the sense of “required documents.”

[Alan Klein]

I assume the word was used in the sense of “required documents.”

But it would be in the interest of the PM to submit the report that Manoli said was missing.  This would complete the record for the last court.  If the report gives a reasonable explanation of what he told the Queen, then the court will rule in his favor.  Even though we all realize this is only a charade, the court isn't going to embarrass the queen by making her seem like a fool by her going along with something some consider sneaky. 

[Slobodan Blagojevic]

But it would be in the interest of the PM to submit the report that Manoli said was missing.  This would complete the record for the last court.  If the report gives a reasonable explanation of what he told the Queen, then the court will rule in his favor.  Even though we all realize this is only a charade, the court isn't going to embarrass the queen by making her seem like a fool by her going along with something some consider sneaky. 

I think we could/should safely drop the Queen from the debate. Her role is irrelevant for the Supreme Court, which needs to determine which of the two courts, Scottish or London, was right.

[Jeremy Roussak]

That's a good response and clarifies a few things. Better than your other post.  But it raises two questions.

1. Isn't it the PM who has to sign the statement, not others?  After all, it was he who saw the Queen and could be the only one who knows what he told her.
2. Don't both sides have a right to argue their case before the final upcoming court?  If so, couldn;t the PM present and swear and sign the statement at that time to complete the record?

1. He didn't. The advice she took and upon which she acted was technically that of her Privy Council, represented on that occasion by the Lord President, the government Chief Whip and the Leader of the House of Lords. The Queen was in Balmoral; Johnson wasn't there.

2. It would be unusual for evidence to be admitted by an appeal court which was available at the time of the hearing below but not adduced. There's authority on the point, although admittedly only at the level of the Court of Appeal.

Indeed they both will. The Supreme Court is, unsurprisingly,  supreme.

It's the highest court in the land, but it isn't "supreme" in anything like the same sense as the US Supreme Court is supreme.

But they (the government) will need to be 'careful' - last week parliament passed a 'bill' requiring certain civil servants and possibly some ministers (not sure of who's named) to surrender both official and private communications since Johnson became PM.

It was a motion requesting disclosure, not a bill (which is the forerunner of an Act).

The court hearing is next Tuesday the 17th and will be broadcst live ( you'll be able to watch through your browser) so I recommend an early start and a 'fun' day in front of the tv ... If you do tune-in look for a bloke by the name of David Panick QC

Lord Pannick has a brilliant mind and is a very able and entertaining advocate. Sir James Edie, who I think will be instructed by the government, is no less able. It could indeed be a good watch. All hearings before the SC are now streamed but the advocacy is often surprisingly stilted.

Jeremy

[Alan Klein]

Jeremy,  how does your high court differ fron America's?

[faberryman]

Jeremy,  how does your high court differ fron America's?

Wikipedia has a good summary of the U.K. Supreme Court if you are really interested

[Alan Klein]

What
powers does
the Supreme
Court have?
The US Congress can legislate only in
accordance with the US Constitution.
Ultimately, it falls to the US Supreme
Court to determine whether legislation is
constitutional – which means SCOTUS
has a considerable amount of power and
the ability to ‘strike down’ legislation if it
is found to be unconstitutional.
http://ukscblog.com/ussc-v-uksc/

Powers of UKSC
The UK does not have single written
constitution, so its power is different to
the SCOTUS.
The UKSC can decide that certain
legislation is incompatible with the
Human Rights Act 1998, or the European
Convention of Human Rights. The
UKSC does not in itself ‘strike down’ the
legislation in question, but leaves it for
Parliament to decide what to do about
resolving the incompatibility.

[Alan Klein]

Here's link from my last post.   Not sure what it means regarding brexit.
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.supremecourt.uk/docs/scotus-and-uksc-comparative-learning-tool.pdf&ved=2ahUKEwjB5u-7t87kAhUutlkKHTqgDI4QFjABegQIBxAB&usg=AOvVaw1-7-a_kBEr1bRn-P39kwa4

[Chris Kern]

The court hearing is next Tuesday the 17th and will be broadcst live ( you'll be able to watch through your browser) so I recommend an early start and a 'fun' day in front of the tv ... If you do tune-in look for a bloke by the name of David Panick QC who'll be going for the jugular on behalf of one Mrs Gina Miller. So far he's got a 2-0 winners scorecard against the government and he'll be looking for the third (known as a 'hat trick' in the UK)

Lord Pannick has a brilliant mind and is a very able and entertaining advocate. Sir James Edie, who I think will be instructed by the government, is no less able. It could indeed be a good watch. All hearings before the SC are now streamed but the advocacy is often surprisingly stilted.

I'd be interested to observe first-hand how British appellate arguments differ from our own, although the hearing will take place rather early in the morning for those of us on this side of the Atlantic.  I found a link on the Supreme Court's website that appears to be where the live steam may be found on Tuesday; is that where to look?  Also, have the parties submitted briefs that are available online which one might read in advance?

If your patience hasn't been exhausted by some of the earlier questions about this case, I have a few of my own:

• Is the only issue before the Supreme Court that of justiciability—i.e., what in the United States we call the "political question" doctrine, which precludes the judiciary from intervening in issues that are considered exclusively within the purview of elected representatives?
• If the Supreme Court rules that there is indeed a justiciable issue, will the case likely be remanded back to a lower court to hear more evidence regarding the motive for proroguing Parliament?  And if so, which court?  My impression was that the Scottish ruling was a decision by an appellate rather than a trial court.
• The jurisdictional issue is difficult to understand for someone who is familiar only with U.S. legal practice since the interaction between our state and federal jurisdictions is subject to very different constitutional provisions and case law.  Should the U.K. Supreme Court conclude that the decision of the government is nonjusticiable, would that overrule the Scottish court, per se, simply prevent any further proceedings against the government from taking place in Scotland, or have some other legal consequence?

Sorry if these questions seem obtuse.  Our legal traditions have ... ahem ... diverged somewhat over the last 240-plus years.

[Alan Klein]

Those are pertinent questions Chris.  Also, since Britain doesn't have a written Constitution, how does that affect determination of what's legal in this kind of a situation?  Actually, how does that work in all cases?

[Jeremy Roussak]

I'd be interested to observe first-hand how British appellate arguments differ from our own, although the hearing will take place rather early in the morning for those of us on this side of the Atlantic.  I found a link on the Supreme Court's website that appears to be where the live steam may be found on Tuesday; is that where to look?  Also, have the parties submitted briefs that are available online which one might read in advance?

That seems to be the correct place. The live stream will be a bit early, but most (perhaps all) hearings are made available later. I don't know how quickly. From memory, you can follow links from the home page to streams of earlier hearings. The parties will have prepared written skeleton arguments but they're not generally published anywhere. One of the main differences between the UKSC and the SCOTUS seems to be that we place far more emphasis on oral argument, which can occupy two days or more. The written skeletons are important, but are expected to be pretty skeletal, fleshed out before the Court.

If your patience hasn't been exhausted by some of the earlier questions about this case, I have a few of my own:

• Is the only issue before the Supreme Court that of justiciability—i.e., what in the United States we call the "political question" doctrine, which precludes the judiciary from intervening in issues that are considered exclusively within the purview of elected representatives?
• If the Supreme Court rules that there is indeed a justiciable issue, will the case likely be remanded back to a lower court to hear more evidence regarding the motive for proroguing Parliament?  And if so, which court?  My impression was that the Scottish ruling was a decision by an appellate rather than a trial court.
• The jurisdictional issue is difficult to understand for someone who is familiar only with U.S. legal practice since the interaction between our state and federal jurisdictions is subject to very different constitutional provisions and case law.  Should the U.K. Supreme Court conclude that the decision of the government is nonjusticiable, would that overrule the Scottish court, per se, simply prevent any further proceedings against the government from taking place in Scotland, or have some other legal consequence?

Sorry if these questions seem obtuse.  Our legal traditions have ... ahem ... diverged somewhat over the last 240-plus years.

I've not seen any of the relevant documents, so it's hard to be sure. I would expect that all issues are open: justiciability is obviously the first question to be determined, since if the issue is non-justiciable, there's nothing more to be discussed. Miller's appeal from the Divisional Court will be primarily on the justiciability issue but if the finding is in her favour, she would ask for other issues to be considered. I assume she is asking for what used to be called a writ of certiorari (a term which it appears you use differently) but is now known as a quashing order. The government's appeal in the Scottish case obviously covers both justiciability and the subsequent findings of fact.

Remitting the issue is a possibility in the English proceedings, but I think it's very unlikely. It's not possible in the Scottish proceedings, as the legality question has already been determined at the highest local court level, the Inner House (on appeal, you are correct; the judge at first instance found that the issue was not justiciable, as did the Divisional Court in England).

No more evidence would be permitted in any event: the cases were fully prepared at first instance and it's very rare, as I've mentioned before, for new evidence to be admitted on appeal.

The UKSC is the supreme court in all UK jurisdictions, so its decision would be final and bind England and Wales, Scotland and Northern Ireland. I believe there are proceedings afoot in Northern Ireland, but from what little I've heard they relate in part to the Good Friday agreement and are therefore pursued on a rather different basis.

Jeremy