Have fun with the Hugo wank (if you’re up for diving into the AO3 post comments, there are some great poems and songs and fic pieces-and some have actually been posted as works)
12:00 Officials with Johnson had said that it would take time to digest what they called an 'extraordinary' ruling and provide a response
It appears that (1) he really thought he'd get away with it, and (2) he hadn't meaningfully made any contingency plans for this eventuality other than "continue to stall and also treat Parliament with contempt".
Given that we've already had an MP killed over This Entire Mess I am... really quite scared about the potential for riots against Parliamentary sovereignty.
I feel like the current crop of world leaders (Trump, Johnson, Scott Morisson down here in Australia who is very much in the same mould although his hair isn't as bad) think that contingency plans would be proof that you don't believe in yourself enough and that believing and just brazenly marching on through the opposition is the way to get things done ...
It is absolutely freaking terrifying even if I try to pretend none of the climate stuff exists… *hugs if you'd like*
I am looking at this and feeling very lost, cause I'm the US context, the Supremes making a ruling invalidating something is Tuesday, but this seems much more like the Court invalidating, and then showing up with the armed forces to enforce their order.
Very approximately: the UK operates on the principle of parliamentary sovereignity, and a whole pile of this Brexit shitshow was framed as being about how UNJUST and UNCONSTITUTIONAL and WRONG it was that instead of OPERATING WITH PARLIAMENTARY SOVEREIGNITY we were taking EXTERNAL LAWS from UNELECTED* BUREAUCRATS in the EU.
What's happened over the past few weeks is that the government (the executive) went to the Queen (whose role at this point is mostly formal) and asked her to prorogue parliament (which is opaque terminology meaning "make the current session end, any legislation that is not At An Appropriate Stage gets dropped on the floor and has to start over from scratch, for the duration of the prorogation Parliament cannot meet and conduct normal Parliamentary business like 'asking questions' and 'scrutinising the government's actions'"), this being (I think) a royal prerogative, which is fine as far as it goes except that what with our unwritten constitution there's a WHOLE HECKIN' LOT of convention about What You Do and How You Do It.
Today's ruling (from the judiciary) is that (1) the government lied about why they wanted prorogation, (2) the length of prorogation they asked for is extremely unusual at a time of national crisis, and (3) the real reason the government (the executive) wanted to prorogue partliament was to inhibit parliament (which is theoretically sovereign) from doing its damn job, i.e. using royal prerogative to allow the government to supercede parliament.
This is Not On. Government trying to steamroller Parliament by preventing it doing its job = constitutional crisis.
That's okay, said the judiciary, it wasn't legal for government to do this so... they didn't. It never happened. Why have none of you been at work for the past fortnight. Get on with it, then.
The armed forces are irrelevant (& certainly not being brought into this by the judiciary): what's happened is simply that the judiciary have said "yeah, that executive action Never Happened, it has no legal force, ergo the legislative branch gets to continue with business as usual instead of being bound by the thing the executive tried to do but, in fact, did not, because it was illegal". It's much more... showing up with the Auditors as implacable referees than it is military action.
This is not just "such and such a law is unenforceable" or "of course same sex marriage is legal", it's "the way the government was operating is illegal and therefore never happened". If that... helps? It pretty much all is a shitshow, though, and as rydra_wong keeps saying, you DO NOT HAVE to try to wrap your head around any of this.
* this asterisk to indicate that It's A Bit More Complicated Than That, Nigel
So some other possibly interesting points: the UK doesn't have anything resembling a written constitution, instead it just has a bunch of written laws and a bunch of case law and a metric shittonne of "this is how we've always done it" and "just ask nicely". Partly as a result, it's incredibly rare for the UK Supreme Court to get involved in any sort of constitutional problem, because the questions just don't come up.
I get the impression that SCOTUS judges are appointed on a political basis by the president, and are expected (in the colloquial sense, if not the formal sense) to interpret the written laws and constitution in accordance with their political beliefs. That's not the case in the UK; I'd hold the UKSC judges to a very high standard of impartiality and lack of bias, and would expect them to avoid making political decisions. The bits I see on the news about the abortion debate in the USA being swung by the balance of political beliefs in SCOTUS judges; I cannot imagine that sort of discussion happening over here.
Which brings us to why this decision is so very unusual: political matters in the UK are generally seen as being the realm of Parliament and Government, not the Judiciary, and given any sort of contentious constitutional matter is generally going to be political in nature, it'd be expected that the Judiciary stay out of it. That's one of the main arguments the Government were making to the UKSC -- "it's none of your business" -- and it's why the Northern Irish and English/Welsh courts rejected the case. A lot of the legal commentators I was reading were basically saying "if you'd asked me about this a few months ago, I'd have said this case could never come before the UKSC, it's clearly political and non-justiciable. But given the circumstances..."
(Aside: UK Supreme Court AIUI can make rulings on law in any part of the UK; prior to the case coming before the UKSC, it was brought in slightly different guises before courts in Northern Ireland, Scotland, and England and Wales, all of which have their own similar-but-different legal setups, including different unwritten constitutional norms and expectations. AIUI part of the reason the case in the Scottish Court of Session succeeded where the cases in the high courts of England and Wales, and Northern Ireland didn't is that it's effectively the monarch who prorogues Parliament, even if she's legally bound to act on the advice of the Government, and unlike in England and Wales, and Northern Ireland, the constitutional traditions of Scotland don't assert that the monarch rules by divine right. Although UKSC judgement didn't actually rely on that in the end.)
There's a lot of "convention" about how the balance of power plays out between Government and Parliament. To pick an obvious example: the Government (in general) controls the "order paper", i.e. the list of what gets debated in Parliament, and therefore what can and cannot be passed into law. If someone in Parliament wants to pass something into law, it needs to be debated, so if the Government don't schedule the time for those debates to happen, it's more-or-less never going to happen. Except, if the leader of the opposition in Parliament wants to schedule a vote of no confidence in the government (which can force a general election), by convention, that debate and vote gets scheduled promptly. There is literally nothing in law that says that has to happen, but because it's convention, it's kinda sorta part of our constitution, and all hell would break loose if the Government refused to schedule time for that debate.
Which brings us to the other argument that was happening in the UKSC here: the Government claimed that it was entirely conventional to prorogue Parliament, and there was absolutely nothing out of the ordinary here. The Government has the power, it has been exercising the power for literally centuries, so what's the problem? The counterargument is clearly that, while the Government has always had the power, the power is not absolute. Parliament has a constitutional purpose, and the Government can't completely ignore that, at least without either (a) Parliament agreeing to it, or (b) some exceptional reason for doing so.
Of course, given the reasons for the prorogation were clearly to try to force Brexit to happen (the Government has basically been saying as much to the public, even while they denied it to the courts), a lot of pro-Brexit people are predictably calling the independence of the Judiciary into question, and saying they're making political decisions to oppose Brexit that're outside their remit. I strongly disagree: the UKSC have made it very clear that this is an exceptional circumstance, and the Government provided absolutely no evidence that it was reasonable, proportionate or in good faith, therefore the court had to find the Government was deliberately stopping Parliament fulfilling its constitutional function for no good reason. Once again, the judgement that is riling the pro-Brexit folks up so much is the one that gives power back to Parliament, i.e. to the body of our elected representatives, when so much of the Brexit campaigning was about how being part of the EU was denying Parliament its power. But of course, being a staunch opponent of Brexit, I would say that.
In the U.S., the judicial branch at the level of federal districts and above is nominally nonpartisan, and should be much more like the UK Court, except that early on, judicial review became a power of the US Court, and with that went any hope that the Supremes would be impartial arbiters elected through a political process.
I had managed to glean that a lot of the things being hammered upon were conventional rather than legal, and that the Prime Minister was being a deliberate rules lawyer about all of it, to the eternal aggravation of everybody else involved.
I think that if they go by historical precedent, previous PMs have prorogued Parliament under comparable circumstances in order to achieve their ends, so in that respect I disagree with the court's decision. The power to ask the monarch to prorogue is given to the Privy Council, which effectively devolves to the PM and doesn't appear to require the PM to give a public reason (although I assume the monarch would expect a bit more detail). I need to dig out the judgement and see if I can understand their argument.
On the other hand, Boris has certainly livened it up - he's refusing to resign and there's not much the opposition can do short of a confidence vote, which if he loses will ultimately end up with an election being called, and cause Parliament to be prorogued again.
Wikipedia has some good examples of previous occasions, including John Major and Clement Atlee.
Having read the summary and skimmed the full document (limited brain for words-intake): the judgment contains a lot of consideration of previous examples & why the SC feels they're not relevant in this case. :)
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But I can't quite bear the thought of spending 90 minutes commuting, to the Other thing I should ideally be doing today!
...
I spent some of the morning catching up on The Hugo Award™ wank and nOW THIS.
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That is not what I thought the courts would do at all
I'm off to read some liveblogs …
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It appears that (1) he really thought he'd get away with it, and (2) he hadn't meaningfully made any contingency plans for this eventuality other than "continue to stall and also treat Parliament with contempt".
Given that we've already had an MP killed over This Entire Mess I am... really quite scared about the potential for riots against Parliamentary sovereignty.
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It is absolutely freaking terrifying even if I try to pretend none of the climate stuff exists… *hugs if you'd like*
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https://twitter.com/davidallengreen/status/1172085736461484032
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y u p
(Adam was quoting that to me again this morning)
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I read BBC and am boggle.
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(Anonymous) 2019-09-24 04:10 pm (UTC)(link)hang in there?
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Very approximately: the UK operates on the principle of parliamentary sovereignity, and a whole pile of this Brexit shitshow was framed as being about how UNJUST and UNCONSTITUTIONAL and WRONG it was that instead of OPERATING WITH PARLIAMENTARY SOVEREIGNITY we were taking EXTERNAL LAWS from UNELECTED* BUREAUCRATS in the EU.
What's happened over the past few weeks is that the government (the executive) went to the Queen (whose role at this point is mostly formal) and asked her to prorogue parliament (which is opaque terminology meaning "make the current session end, any legislation that is not At An Appropriate Stage gets dropped on the floor and has to start over from scratch, for the duration of the prorogation Parliament cannot meet and conduct normal Parliamentary business like 'asking questions' and 'scrutinising the government's actions'"), this being (I think) a royal prerogative, which is fine as far as it goes except that what with our unwritten constitution there's a WHOLE HECKIN' LOT of convention about What You Do and How You Do It.
Today's ruling (from the judiciary) is that (1) the government lied about why they wanted prorogation, (2) the length of prorogation they asked for is extremely unusual at a time of national crisis, and (3) the real reason the government (the executive) wanted to prorogue partliament was to inhibit parliament (which is theoretically sovereign) from doing its damn job, i.e. using royal prerogative to allow the government to supercede parliament.
This is Not On. Government trying to steamroller Parliament by preventing it doing its job = constitutional crisis.
That's okay, said the judiciary, it wasn't legal for government to do this so... they didn't. It never happened. Why have none of you been at work for the past fortnight. Get on with it, then.
The armed forces are irrelevant (& certainly not being brought into this by the judiciary): what's happened is simply that the judiciary have said "yeah, that executive action Never Happened, it has no legal force, ergo the legislative branch gets to continue with business as usual instead of being bound by the thing the executive tried to do but, in fact, did not, because it was illegal". It's much more... showing up with the Auditors as implacable referees than it is military action.
This is not just "such and such a law is unenforceable" or "of course same sex marriage is legal", it's "the way the government was operating is illegal and therefore never happened". If that... helps? It pretty much all is a shitshow, though, and as
* this asterisk to indicate that It's A Bit More Complicated Than That, Nigel
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I get the impression that SCOTUS judges are appointed on a political basis by the president, and are expected (in the colloquial sense, if not the formal sense) to interpret the written laws and constitution in accordance with their political beliefs. That's not the case in the UK; I'd hold the UKSC judges to a very high standard of impartiality and lack of bias, and would expect them to avoid making political decisions. The bits I see on the news about the abortion debate in the USA being swung by the balance of political beliefs in SCOTUS judges; I cannot imagine that sort of discussion happening over here.
Which brings us to why this decision is so very unusual: political matters in the UK are generally seen as being the realm of Parliament and Government, not the Judiciary, and given any sort of contentious constitutional matter is generally going to be political in nature, it'd be expected that the Judiciary stay out of it. That's one of the main arguments the Government were making to the UKSC -- "it's none of your business" -- and it's why the Northern Irish and English/Welsh courts rejected the case. A lot of the legal commentators I was reading were basically saying "if you'd asked me about this a few months ago, I'd have said this case could never come before the UKSC, it's clearly political and non-justiciable. But given the circumstances..."
(Aside: UK Supreme Court AIUI can make rulings on law in any part of the UK; prior to the case coming before the UKSC, it was brought in slightly different guises before courts in Northern Ireland, Scotland, and England and Wales, all of which have their own similar-but-different legal setups, including different unwritten constitutional norms and expectations. AIUI part of the reason the case in the Scottish Court of Session succeeded where the cases in the high courts of England and Wales, and Northern Ireland didn't is that it's effectively the monarch who prorogues Parliament, even if she's legally bound to act on the advice of the Government, and unlike in England and Wales, and Northern Ireland, the constitutional traditions of Scotland don't assert that the monarch rules by divine right. Although UKSC judgement didn't actually rely on that in the end.)
There's a lot of "convention" about how the balance of power plays out between Government and Parliament. To pick an obvious example: the Government (in general) controls the "order paper", i.e. the list of what gets debated in Parliament, and therefore what can and cannot be passed into law. If someone in Parliament wants to pass something into law, it needs to be debated, so if the Government don't schedule the time for those debates to happen, it's more-or-less never going to happen. Except, if the leader of the opposition in Parliament wants to schedule a vote of no confidence in the government (which can force a general election), by convention, that debate and vote gets scheduled promptly. There is literally nothing in law that says that has to happen, but because it's convention, it's kinda sorta part of our constitution, and all hell would break loose if the Government refused to schedule time for that debate.
Which brings us to the other argument that was happening in the UKSC here: the Government claimed that it was entirely conventional to prorogue Parliament, and there was absolutely nothing out of the ordinary here. The Government has the power, it has been exercising the power for literally centuries, so what's the problem? The counterargument is clearly that, while the Government has always had the power, the power is not absolute. Parliament has a constitutional purpose, and the Government can't completely ignore that, at least without either (a) Parliament agreeing to it, or (b) some exceptional reason for doing so.
Of course, given the reasons for the prorogation were clearly to try to force Brexit to happen (the Government has basically been saying as much to the public, even while they denied it to the courts), a lot of pro-Brexit people are predictably calling the independence of the Judiciary into question, and saying they're making political decisions to oppose Brexit that're outside their remit. I strongly disagree: the UKSC have made it very clear that this is an exceptional circumstance, and the Government provided absolutely no evidence that it was reasonable, proportionate or in good faith, therefore the court had to find the Government was deliberately stopping Parliament fulfilling its constitutional function for no good reason. Once again, the judgement that is riling the pro-Brexit folks up so much is the one that gives power back to Parliament, i.e. to the body of our elected representatives, when so much of the Brexit campaigning was about how being part of the EU was denying Parliament its power. But of course, being a staunch opponent of Brexit, I would say that.
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In the U.S., the judicial branch at the level of federal districts and above is nominally nonpartisan, and should be much more like the UK Court, except that early on, judicial review became a power of the US Court, and with that went any hope that the Supremes would be impartial arbiters elected through a political process.
I had managed to glean that a lot of the things being hammered upon were conventional rather than legal, and that the Prime Minister was being a deliberate rules lawyer about all of it, to the eternal aggravation of everybody else involved.
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On the other hand, Boris has certainly livened it up - he's refusing to resign and there's not much the opposition can do short of a confidence vote, which if he loses will ultimately end up with an election being called, and cause Parliament to be prorogued again.
Wikipedia has some good examples of previous occasions, including John Major and Clement Atlee.
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Having read the summary and skimmed the full document (limited brain for words-intake): the judgment contains a lot of consideration of previous examples & why the SC feels they're not relevant in this case. :)