Brexit Encore

[Jeremy Roussak]

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?

It's customary to say that we don't have a written constitution. It's probably more correct to say that our constitution is not codified; it consists of a mixture of law, court-decided precedent and convention, discussed in vast volumes of writing by judges and legal and constitutional academics. It's pragmatic, responding to different situations as they arise. To that extent, while decisions are (in theory, at least) perhaps less predictable than those made under a codified constitution such as yours, we have a greater degree of flexibility.

Jeremy

[Chris Kern]

It's probably more correct to say that our constitution is not codified; it consists of a mixture of law, court-decided precedent and convention, discussed in vast volumes of writing by judges and legal and constitutional academics. It's pragmatic, responding to different situations as they arise.

In some respects, the U.K. and U.S. constitutional approaches are not as different as they superficially may appear: our written constitutional document cannot be meaningfully understood without reference to the two centuries of case law interpreting it.  Admittedly, convention and academic opinions are not particularly strong influences on constitutional doctrine here, although both litigants and judges do rely on them to some extent when the case law is sparse or conflicted.  I do agree that it's accurate to generalize that our constitutional system is more rigid than yours because of the inbuilt procedural obstacles to amending the fundamental document—which has only happened 27 times, the first ten of which took place shortly after its adoption to remedy what were widely believed to be implicit assumptions which should have been made explicit in the original draft.  But the British common law origins of U.S. judicial practice are still very evident, especially where constitutional interpretation is concerned.  Quite different, for example, than the legal tradition in continental Europe.

What intrigues and rather surprises me about the current Brexit case—although this may simply reflect my ignorance—is for an issue of parliamentary practice to wind up in the courts.  Disaffected political parties here frequently resort to legal action in an attempt to challenge actions by the president or Congress, but I was under the impression that was a peculiarly American phenomenon.

[RSL]

It's like a fight between kids, Chris. You have to have a mom to settle things. The kids (politicians) can't do it on their own.

[Alan Klein]

What if Boris loses.  Wouldn't it only extend this thing another three weeks?  How would it affect Brexit if at all?

[Manoli]

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? 

I'd suggest the most direct link, in all probability (and from memory), is the section titled 'Brexit related case(s)' on the index page:
https://www.supremecourt.uk/index.html

I've also noticed that SKY News has taken to broacsting a live feed via YouTube. Though not a live stream of the proceedings, it should be a reliable source of news, commentary and reaction throughout. On the hour, every hour.
https://www.youtube.com/watch?v=siyW0GOBtbo&feature=share

[Manoli]

What if Boris loses.  Wouldn't it only extend this thing another three weeks? 

The Supreme Court ruling isn't due to be handed down until the 27th September. There is an ongoing 'discussion' as to whether, in light of the Scottish ruling, Parliament should be recalled pending the ruling. Needless to say, Boris has rejected that idea and there is currently no way to compel him to do so.

Below is a link to a previous AG, Dominic Grieve QC, on the current 'impasse'.
https://www.youtube.com/watch?v=wASuWvqHW_M

[Alan Klein]

The Supreme Court ruling isn't due to be handed down until the 27th September. There is an ongoing 'discussion' as to whether, in light of the Scottish ruling, Parliament should be recalled pending the ruling. Needless to say, Boris has rejected that idea and there is currently no way to compel him to do so.

Below is a link to a previous AG, Dominic Grieve QC, on the current 'impasse'.
https://www.youtube.com/watch?v=wASuWvqHW_M

I believe in America, an appeals court could compel the lower court's decision while a higher court reviews the situation and makes a final ruling.  Although, in many cases,  the appeals court just freezes everything until then.  In any case, it has latitude with its ruling.

So how does that work in GB ? 

The other question relating to your comment that Boris won't recall parliament:-  If the Scottish court did tell the PM to do something, does he have to comply?  In America, there's a tradition that officials follow the court's ruling (revised) even while the case is being appealed to a higher court.  He could be held by the court to being in legal contempt of it which could create a "constitutional crises".   After all, it's the executive who is charged with enforcing laws and court decisions which complicates it even more . What happens in GB?  Can the PM thumb his nose at the courts?  If he does, what happens?  Are there political and/or legal consequences?

[Manoli]

So how does that work in GB ? 

We're about to find out.

The other question relating to your comment that Boris won't recall parliament:-  If the Scottish court did tell the PM to do something, does he have to comply?  In America, there's a tradition that officials follow the court's ruling (revised) even while the case is being appealed to a higher court. He could be held by the court to being in legal contempt of it which could create a "constitutional crises".  After all, it's the executive who is charged with enforcing laws and court decisions which complicates it even more . What happens in GB?  Can the PM thumb his nose at the courts?  If he does, what happens?  Are there political and/or legal consequences?

There are, or will be, legal consequences. But my suggestion to you is 'wait and see'. The possibilities are multiple and if BoJo does defy the SC, not only could he theoretically face jail but the UK will have a constitutional crisis to deal with.

To simplify as much as possible. On September 4th parliament passed a bill that compelled the Government to seek a further extension to Britain's membership of the EU UNLESS a new agreement is reached with Brussels by October 19th. This was ratified by the upper house so is now law.

BoJo has reiterated on many occasions that he'll NOT ask for an extension (in defiance of parliament) and would rather be 'dead in a ditch'. What happens to a Prime Minister who wilfully and knowingly defies the law ? Again, we may soon find out.

[Alan Klein]

Boris doesn;t strike me as the jail type.  I don;t think we'll see him in a ditch any time soon either. 

In any case, the parliamentary situation is different.  Doesn't parliament pick the PM, that's why he's the PRime.  So can't parliament unelect him?  If they don;t, then in effect they agree he should remain PM even though he violated their own law.  In effect, they annulled their own law. 

This is similar to what happens in America when we go to war.  The Congress is supposed to declare war, not the president.  That's in keeping with our founders desire to limit power of one man.  However, over the years, Congress has ignored that rule and given more power to the president to get us involved in conflicts without their "official" OK.  However, they could stop the war by not funding it.  Troops have to be fed, paid, and armed.  So if the Congress continues to fund the war, they in effect have declared war constitutionally.  At least that's how the Supreme Court has ruled in the past.  So if Parliament similarly does nothing to the PM, they de facto agreed with his act even if it was illegal de jure.

[Alan Klein]

That remains to be seen. Calling a bluff and losing it is possible.

Anyway, here's some more perspective from a former PM, Tony Blair:
https://youtu.be/dzg-TT0jnrE?t=257

I watched it.  It seems Tony Blair was and is against Brexit.  He just wants another bite of the apple in a referendum hoping that Brits would reject Brexit this time.    Guess what?  He's not Prime Minister anymore and doesn't make the rules.  The world and GB has moved on. 

[Manoli]

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.

The schedule is published on the SC website. A full 3 days are allotted to the proceedings and of immediate interest will be the submissions of the appellant Gina Miller v the Prime Minister on Tuesday the 17th, 1030-1300 (Lord Pannick) and the Governments reply on Wednesday the 18th, 1030-1300 (Sir James Eadie). 

The appeal by the AG for Scotland is heard concurrently but has its own case ID.

https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/cases/uksc-2019-0193.html

The judgement appealed:
http://www.bailii.org/ew/cases/EWHC/QB/2019/2381.html
http://www.bailii.org/ew/cases/EWHC/QB/2019/2381.pdf

and, the Scottish judgement:
http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_70.pdf

Live feed:
https://www.supremecourt.uk/live/court-01.html

and, 'pour memoire' SKY news, via YouTube, on the hour every hour:
https://www.youtube.com/watch?v=siyW0GOBtbo&feature=share

[kers]

I watched it.  It seems Tony Blair was and is against Brexit.  He just wants another bite of the apple in a referendum hoping that Brits would reject Brexit this time.    Guess what?  He's not Prime Minister anymore and doesn't make the rules.  The world and GB has moved on.

A lot of politicians come to their senses after they have been in power, maybe Tony Blair is one of them.
Hopefully the PM of today does not make the same mistakes he made while in power;
for one backing the USA to create a war in the Middle East based on false evidence.

[Chris Kern]

BoJo has reiterated on many occasions that he'll NOT ask for an extension (in defiance of parliament) and would rather be 'dead in a ditch'. What happens to a Prime Minister who wilfully and knowingly defies the law ?

My understanding is that he then morphs into the Incredible Hulk.

The schedule is published on the SC website. A full 3 days are allotted to the proceedings

Thanks for posting the links to the documents and the schedule.  Three days of oral argument?  Yikes!  But Jeremy Roussak warned me.*

―――
*A typical oral argument before the U.S. Supreme Court takes an hour.  But the arguments of the parties have already been extensively briefed in writing.  In my experience, I would be hard put to recall a case where I felt the oral argument actually altered the expected outcome.

[Manoli]

Three days of oral argument?  Yikes! 

Sounds worse than the actuality!
To simplify it,

The UK case (GIna Miller) is heard in the morning sittings, 1030-1300, days 1&2.
The Scottish case, the afternoon sittings 1400-1600, days 1&2
The Appellants on day 1 , the Respondents on day 2.

Day 3, covers oral interventions (all of about 30 minute duration) from Scottish, Welsh, NI interested parties and one by Sir John Major (ex-PM). 
1400-1430 The Appellants reply Advocate General for Scotland (Lord Keen)
1430-1500 The Miller Appellants reply (Lord Pannick).

[Alan Klein]

Well they've started to meet.  I get the impression from the attached article that my theory that the disagreement is political and the courts won;t overrule the PM is very possible.  The theory seems to be supported by the leader of the highest court.  To argue that the PM's legal authority to do something is being done for political reasons is a no-brainer.  Like I said in a previous post, I'm shocked, simply shocked that the politicians are playing political.  But that's no business of the courts.  That's for Parliament and the PM to figure out.
https://www.bbc.com/news/uk-politics-49722087

[Rob C]

Some get it about right:

[faberryman]

I watched some of the hearings today and it was pretty boring. The advocate was reading his brief to the court. Certainly not as compelling as Rumpole.

[Slobodan Blagojevic]

Can someone more familiar with the issue explain how is US-China trade war causing German recession? If anything, it should help  them? What am I missing?

[Alan Klein]

Recessions are the economy's way of correcting imbalances. The EU, America,  China etc have al been running up debt. Creating bubbles.  It's like when you start tapping out your credit cards.  You have to cut back on spending.  You start paying down your debt.  Less money for spending.  It's what happens when you're a pig about debt.   Same thing with countries that are pigs about debt like my country. . Recessions are good.   They normalize economies.   Look how the recession of 2009 restored real estate bubble prices to the"right" levels.   Marginal companies go out of business.   

[Alan Klein]

I suspect we've got a bubble  in the stock market this time.