Brexit Encore

[Alan Klein]

Of course we have a constitution. It is not codified in the way in which many countries have set out their constitution, but it is nonsense to suggest that it does not exist. See [39]: Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.

Some might observe, watching other countries wrestling with their codified constitutions, that pragmatism and flexibility are not bad things.
...
Jeremy

An oral constitution is not worth the paper it's printed on. 

[Rob C]

For the most sane people outside the UK, you guys do not have a constitution. "Attitudes of mind"... give me a break.

"Not law but political conventions..." Damn right it is political. The verdict gives a new meaning to "activist judges."

It strikes me that had the US a similar concept of constitution to ours, your gun lobby would have been rendered speechless without the loss of so many lives. As it stands, it will always be able to buy enough politicians to keep the head count rolling and the guns and bullets selling. What's not to like? Just as long as it's somebody else's people hit the dust, because when it's your own, for you it's too late.

Tell me, then: had the judges of the SC ruled the other way, would they still have been, and I quote: activist judges, or does it all depend on the direction of flow?

I love the idea of all those inner city guns and country bumkin guns being turned onto the future invaders of the USA. Will they come from Mexico - remember, Donald just said today - in front of witnesses - that he and Mexico have got a very good deal, with thousands of Mexican soldiers lined up to protect the US border, so the attack won't come from there. Wait! Those Canadians and their silly claims to parts of the Arctic when clearly, that's just fake claiming. They might decide to invade! Or Greenland! Who knows what militia they have training in the snow? Hey, what about the strange events in the Bahamas? What's really happening there? In a world where you can trust nobody...Yep, you sure need your guns!

No surrender!

[Alan Klein]

The car industry might help Brexit agreement with the remainder of the EU.  Of course, if trade agreements can be made,  why would it be necessary for any other EU member to stay in the EU? 
https://uk.reuters.com/article/uk-britain-eu-autos/billions-of-euros-millions-of-jobs-europes-carmakers-warn-on-no-deal-brexit-idUKKBN1W70VF

[Jeremy Roussak]

OK, I understand the distinction you're making.  Probably not the best choice of words on my part.  (I initially thought to say that the court held Johnson's recommendation for an extended prorogation to be ultra vires, which is how I interpreted its use of the word "unlawful," but settled on what seemed at the time to be clearer language.)

Chris, I think ultra vires are, to mix languages, the mots justes. His advice has been deemed unlawful because its effect has been judged to be unjustifiable.

But unless I'm missing something else, it still seems to me that the Supreme Court has taken a step with this ruling in the direction of American-style judicial review.  The court's decision is self-enforcing, is it not?  No further action by the Prime Minister or Parliament is needed to give it effect; indeed, the Speaker immediately announced that Parliament would sit on Wednesday.  So by its "declaration," the court has effectively nullified (or reversed or countermanded—I don't know what term would be most appropriate) a real-world action taken by the executive.  At least, that's how it appears on this side of the Atlantic.

I don't know enough about American JR to comment on that. For myself, I think it is a dangerous decision because it involves the court's weighing the effect of a decision against the justification for that decision; and that seems to me to be supremely a matter for politicians and not for the judiciary. But, to misquote, I am not now nor have I ever been a Justice of the Supreme Court (and nor will I ever be, but that's another matter). What it does not do, despite attempts to present it as such, is to decide that Johnson "lied" to the Queen, or even "misled" her.

An oral constitution is not worth the paper it's printed on. 

Possibly true, but utterly irrelevant. I wrote that we have no codified constitution, not that it was unwritten. Which part of "common law, statutes, conventions and practice", do you imagine is not written down?

Good op-ed piece by Lord Sumption, an ex-SC justice

Sumption's piece is, as one would expect from a phenomenally intelligent man, an eminent historian as well as a jurist, lucidly written; and its tone is one of sorrow, not of anger. The penultimate paragraph you quote is a superb summation. I suspect he shares my fear that this is step too far, even if he is prepared to support it as being, in the circumstances, necessary.

Jeremy

[Slobodan Blagojevic]

... For myself, I think it is a dangerous decision because it involves the court's weighing the effect of a decision against the justification for that decision; and that seems to me to be supremely a matter for politicians and not for the judiciary....

+1

[Alan Klein]

...

I don't know enough about American JR to comment on that. For myself, I think it is a dangerous decision because it involves the court's weighing the effect of a decision against the justification for that decision; and that seems to me to be supremely a matter for politicians and not for the judiciary. But, to misquote, I am not now nor have I ever been a Justice of the Supreme Court (and nor will I ever be, but that's another matter). What it does not do, despite attempts to present it as such, is to decide that Johnson "lied" to the Queen, or even "misled" her.

Possibly true, but utterly irrelevant. I wrote that we have no codified constitution, not that it was unwritten. Which part of "common law, statutes, conventions and practice", do you imagine is not written down? 
...

Jeremy

Is it possible that because your written constitution is not codified, that may have led to a decision that should have been left to the politicians.  It's bad enough in America that unelected Supreme Court Justices re-interpret a codified written constitution to their liking making law that should be made by elected officials who represent the people. Frankly, that's undemocratic.  So how does the Supreme Court in the UK assure that judges won't make law without a codified constitution?   What is a constitution that is not codified?  Apparently I don;t understand what that means.

[Rob C]

Ultra vires! Wonderful the educational properties of Lula! Something new every day; which just goes to show you that those who wish to restrict LuLa posts and threads to photography alone are sure wishing to remain broadly ignorant of so much more.

Thank you, LuLa honchos, for keepìng the broader attitude alive and well. The power, interest and value of the CC is revealed yet again.

;-)

[Chris Kern]

The power, interest and value of the CC is revealed yet again.

Res ipsa loquitur.

[Jeremy Roussak]

Ultra vires! Wonderful the educational properties of Lula! Something new every day; which just goes to show you that those who wish to restrict LuLa posts and threads to photography alone are sure wishing to remain broadly ignorant of so much more.

Thank you, LuLa honchos, for keepìng the broader attitude alive and well. The power, interest and value of the CC is revealed yet again.

You are most welcome. Sadly, the use of Latin in English courts has been deprecated for some 15 years, for various misguided reasons. Latin tags were phenomenally useful in conveying concepts pithily and accurately. Chris's "res ipsa loquitur", for example, has a wealth of technical meaning, which now takes ten times as long to say, using English.

I tend to use the Latin anyway, prefaced or suffixed by "as we are no longer supposed to say". It generally raises a wry smile from the judge.

Jeremy

[Rob C]

I watched the BoJo address to Parliament last night, his first after the Supreme Court rulings.

The man is a national disgrace - I believe his plan is to try and out-Trump Trump in an effort to gather around him all the hard-core, right-wing nut cases in the land, which seems to be a winning hand in the US so why not the UK? His absolute disrespect for Parliament, civility and proper behaviour was unbelievable. In fact, so much so that like his political cousin across the ocean, I honestly believe he requires psychiatric attention.

There is not a lot to write about the spectacle; anyone who did not watch the display simply wouldn't believe me. Almost as bad, his official apologists this morning dealing with the Parliamentary aftermath of his shocking display of bad manners and absolute insensitivity.

From what I see, it seems that both sides of the divide have written questions complete with the written replies, which of course, makes a mockery of debate. If this is not the case, what are they looking at as they formulate (read) their responses? The interesting thing would be to see these people dealing with questions they had no way of knowing were coming at them. Never happen: they would all reveal the clay of their feet and many other parts.

Rob

[Alan Klein]

What changes about Brexit due to the SC's decision?

[Slobodan Blagojevic]

What changes about Brexit due to the SC's decision?

I suspect, nothing. All it does is allowing bitchers & moaners (aka the parliament) to bitch and moan for the next five weeks, instead of letting the PM do what needs to be done. The Bitchers & Moaners are schizophrenic, of course.  They insist on an agreement, but rejected one (three times) already. As they would reject any other but an imaginary one. There is only one agreement that is theoretically possible: the one in which one side would have to accept a total, unquestionable, humiliating defeat. As that ain’t gonna happen, they will continue to bitch and moan until the inevitable happens: hard Brexit.

Apparently, the PM is universally loathed. A non-schizophrenic B&Ms would do a simple thing: a vote of no confidence, and he is gone. Gone. But no. That would mean a new election and a possibility that Leavers would prevail, again. The opposition, Labor, couldn’t even agree, during their own conference, should they stay or should they go. They adopted a wait-and-see strategy, so that they can join the whoever prevails’ side.

[Alan Klein]

Give it a rest, that system has been operating for quite a few centuries now. If the courts were going to take over political power it would have happened by now.

...

I just learned that the Supreme Court of GB is under 10 years old.  Ten Years!!  Now I'm convinced this is a power grab of the court that's going on.  It's following what Chris Kern mentioned about the Marbury decision.   The court becoming a reviewer of law and actions of parliament and PM (Congress and the President in the US).   It will become more powerful and less democratic than what we have in America because there's no written constitution in GB defining SC powers.  It may be beholden to a certain extent to the forces of the EU since it was birthed because of it.  Some comments from the attached article, an opinion on the matter.


"...The British Supreme Court is a brand-new institution, still not even a decade old. It arose from Britain’s entanglement with the Continent and was drawn up, under Prime Minister Tony Blair, partly to harmonize British law with the European Convention on Human Rights...

The new Supreme Court is taking those democratic prerogatives (of Parliament) and rendering them subject to judicial correction, while retaining the language of democracy. The court is an arm of the class that brought Britain into the European Union, a homegrown element of the now-repudiated European Union itself...

...Such institutions are changing the whole of British politics. The country’s “unwritten constitution” consists of the laws Parliament passes and certain customs associated with them. Without a written constitution to circumscribe its powers, a court can seize on anything and interpret it in any direction..."

[Slobodan Blagojevic]

I just learned that the Supreme Court of GB is under 10 years old.  Ten Years!!...

Ah, that young age when parents* are still seen as gods and trust in them is still unquestionable

* EU

[Alan Klein]

I suspect, nothing. All it does is allowing bitchers & moaners (aka the parliament) to bitch and moan for the next five weeks, instead of letting the PM do what needs to be done. The Bitchers & Moaners are schizophrenic, of course.  They insist on an agreement, but rejected one (three times) already. As they would reject any other but an imaginary one. There is only one agreement that is theoretically possible: the one in which one side would have to accept a total, unquestionable, humiliating defeat. As that ain’t gonna happen, they will continue to bitch and moan until the inevitable happens: hard Brexit.

Apparently, the PM is universally loathed. A non-schizophrenic B&Ms would do a simple thing: a vote of no confidence, and he is gone. Gone. But no. That would mean a new election and a possibility that Leavers would prevail, again. The opposition, Labor, couldn’t even agree, during their own conference, should they stay or should they go. They adopted a wait-and-see strategy, so that they can join the whoever prevails’ side.

I agree.  I asked my question tongue-in-cheek.  Nothing different is going to happen with the extra three weeks.  It's just to stick the PM's nose in it.   More importantly, the Parliament just lost power to a group of 12 unelected judges who will decide important British law in the future. Nothing's so sweet as exercising power.  It's intoxicating.  You wind up upping the dosage. 

[Alan Klein]

Ah, that young age when parents* are still seen as gods and trust in them is still unquestionable

* EU

If the PM had balls, he would have ignored the SC decision stating they don;t have the authority to overrule the PM and kept Parliament closed.   Children aren't in charge of the home, parents are.   The British will rue the day the SC grabbed this power and the government didn't stand up to it. 

[faberryman]

What changes about Brexit due to the SC's decision?

I suspect, nothing. All it does is allowing bitchers & moaners (aka the parliament) to bitch and moan for the next five weeks, instead of letting the PM do what needs to be done. The Bitchers & Moaners are schizophrenic, of course.  They insist on an agreement, but rejected one (three times) already. As they would reject any other but an imaginary one. There is only one agreement that is theoretically possible: the one in which one side would have to accept a total, unquestionable, humiliating defeat. As that ain’t gonna happen, they will continue to bitch and moan until the inevitable happens: hard Brexit.

Apparently, the PM is universally loathed. A non-schizophrenic B&Ms would do a simple thing: a vote of no confidence, and he is gone. Gone. But no. That would mean a new election and a possibility that Leavers would prevail, again. The opposition, Labor, couldn’t even agree, during their own conference, should they stay or should they go. They adopted a wait-and-see strategy, so that they can join the whoever prevails’ side.

I agree.  I asked my question tongue-in-cheek.  Nothing different is going to happen with the extra three weeks.  It's just to stick the PM's nose in it.   More importantly, the Parliament just lost power to a group of 12 unelected judges who will decide important British law in the future. Nothing's so sweet as exercising power.  It's intoxicating.  You wind up upping the dosage.

I just learned that the Supreme Court of GB is under 10 years old.  Ten Years!!  Now I'm convinced this is a power grab of the court that's going on.  It's following what Chris Kern mentioned about the Marbury decision.   The court becoming a reviewer of law and actions of parliament and PM (Congress and the President in the US).   It will become more powerful and less democratic than what we have in America because there's no written constitution in GB defining SC powers.  It may be beholden to a certain extent to the forces of the EU since it was birthed because of it. 

If the PM had balls, he would have ignored the SC decision stating they don;t have the authority to overrule the PM and kept Parliament closed.   Children aren't in charge of the home, parents are.   The British will rue the day the SC grabbed this power and the government didn't stand up to it.

The blind leading the blind.

[Slobodan Blagojevic]

The blind leading the blind.

So much space for such a stupid comment.

[jeremyrh]

Apparently, the PM is universally loathed. A non-schizophrenic B&Ms would do a simple thing: a vote of no confidence, and he is gone.

Nope. The point is that if an election were called it would allow a No Deal exit without anyone being able to stop it  If you want to comment on UK politics it's a good idea to read up a bit first.

[Jeremy Roussak]

I just learned that the Supreme Court of GB is under 10 years old.  Ten Years!!  Now I'm convinced this is a power grab of the court that's going on.  It's following what Chris Kern mentioned about the Marbury decision.   The court becoming a reviewer of law and actions of parliament and PM (Congress and the President in the US).   It will become more powerful and less democratic than what we have in America because there's no written constitution in GB defining SC powers.  It may be beholden to a certain extent to the forces of the EU since it was birthed because of it.  Some comments from the attached article, an opinion on the matter.


"...The British Supreme Court is a brand-new institution, still not even a decade old. It arose from Britain’s entanglement with the Continent and was drawn up, under Prime Minister Tony Blair, partly to harmonize British law with the European Convention on Human Rights...

The new Supreme Court is taking those democratic prerogatives (of Parliament) and rendering them subject to judicial correction, while retaining the language of democracy. The court is an arm of the class that brought Britain into the European Union, a homegrown element of the now-repudiated European Union itself...

...Such institutions are changing the whole of British politics. The country’s “unwritten constitution” consists of the laws Parliament passes and certain customs associated with them. Without a written constitution to circumscribe its powers, a court can seize on anything and interpret it in any direction..."

The Supreme Court is merely the result of separating the Judicial Committee of the House of Lords, which had existed for centuries, from the upper chamber of the legislature and giving it its own building and rules. All the members of the Committee became members of the SC when it was formed.

You don't attribute your quotations and it's easy to see why the authors would wish to remain anonymous.

The formation of the SC had nothing whatever to do with the ECHR or the EU. It was an idea dreamed up by Tony Blair one dull evening, based on his half-baked understanding of Montesquieu and lack of any sense of history or tradition, just as was his meddling with the ancient role of Lord Chancellor and creation of Lord Speaker (he wasn't even aware, when naming it, that the Supreme Court of Judicature of England and Wales had existed since 1875). It's not clear what your third anonymous source means by "such institutions", but he's clearly as ignorant of the British constitution as, well, some Americans who enjoy pontificating here on topics of which they know little and understand less.

Jeremy