Prorogation - Judgment Day:10.30am Tuesday 24/9/19

[Chris in London]

Can it be unlawful and not justiciable?
Doubt it, but my guess would be something along those lines.
Perhaps a recommendation or pointer showing how the law needs changing to close a loophole around proroguing indefinitely.

My guess is Boris will come away feeling happy, but I know SFA really about the law around this, so it's just a feeling from what I've read.

If it isn't justiciable they won't pronounce on the legality of it one way or the other.

 

[George Hannah]

If it isn't justiciable they won't pronounce on the legality of it one way or the other.

What do you think they'll do?

 

[west didsblue]

I have full confidence that the decision will be based on the merits of the arguments put forward and will not be political. If the court rules against the government, the right wing press will see it very differently.

 

[Chris in London]

What do you think they'll do?

I don't have a clear sense of what they will do. The thing about the first Miller case was that it was blindingly obvious that the government couldn't leave the EU without primary legislation, given that primary legislation had taken us in. This is far less clear cut, and much too close to call.

It seems to me plain that the majority want to say it was unlawful. However they may well be hamstrung by the fact that the dissolution of parliament is non-justiciable, and nobody was able to come up with a convincing reason why prorogation should be any different. So either they come up with a distinction of their own (which they are easily bright enough to do) or they hold it non-justiciable.

 

[gordondaviesmoustache]

I don't have a clear sense of what they will do. The thing about the first Miller case was that it was blindingly obvious that the government couldn't leave the EU without primary legislation, given that primary legislation had taken us in. This is far less clear cut, and much too close to call.

It seems to me plain that the majority want to say it was unlawful. However they may well be hamstrung by the fact that the dissolution of parliament is non-justiciable, and nobody was able to come up with a convincing reason why prorogation should be any different. So either they come up with a distinction of their own (which they are easily bright enough to do) or they hold it non-justiciable.

There has to be a lawful limit to the right to prorogue, surely. At some stage it has to become justiciable. What if a PM prorogued for a year, for example?

 

[lancs blue]

I don't have a clear sense of what they will do. The thing about the first Miller case was that it was blindingly obvious that the government couldn't leave the EU without primary legislation, given that primary legislation had taken us in. This is far less clear cut, and much too close to call.

It seems to me plain that the majority want to say it was unlawful. However they may well be hamstrung by the fact that the dissolution of parliament is non-justiciable, and nobody was able to come up with a convincing reason why prorogation should be any different. So either they come up with a distinction of their own (which they are easily bright enough to do) or they hold it non-justiciable.

Wasn't it a sufficient distinction that dissolution is followed by a GE whereas prorogation can be done seemingly on the whim of a PM (via "advice" to the monarch) without any democratic safety net such as a subsequent GE?

 

[lancs blue]

Ruling at 10-30am tomorrow.

 

[SWP's back]

Everyone please forgive me for not keeping fully up to date with this.

• Can Boris force a leave without Parliament following a "deal"?
• Can he force a "no deal" leave without Parliament?

 

[Mike D]

The mood music is this isn't going to go the governments way, based on the length of time is has taken to come to draw to a conclusion.

I am sitting firmly on the fence because these things rarely go as planned.

 

[Mike D]

Sadly a large % of the electorate think he should be breaking the law, regardless.
“We believe totally in Parliamentary sovereignty”. “Except when we don’t”..

The same lot don't know their arse from their elbow and think No Deal is the best option and everybody who disagrees is scaremongering.

 

[George Hannah]

There has to be a lawful limit to the right to prorogue, surely. At some stage it has to become justiciable. What if a PM prorogued for a year, for example?

Does Parliament not already have other legal mechanisms (in addition to votes of no-confidence) for ensuring prorogation is limited? The example you give would prevent the proper functioning of the state - its existing obligations to regularly enact routine pieces of armed forces and financial legislation were cited by the Govt lawyers as requiring parliament to be recalled from excessive periods of recess or prorogation.

 

[George Hannah]

Everyone please forgive me for not keeping fully up to date with this.

• Can Boris force a leave without Parliament following a "deal"?
• Can he force a "no deal" leave without Parliament?

As it stands I think No to both

Ruling at 10-30am tomorrow.

Looks like they've rallied round a position pretty quickly then.

 

[Ban-jani]

Everyone please forgive me for not keeping fully up to date with this.

• Can Boris force a leave without Parliament following a "deal"?
• Can he force a "no deal" leave without Parliament?

No to both currently, as George stated.

Parliament passed a law last week to ensure the 2nd question you’ve asked gives parliament the final say.

If we default to no deal, Johnson has to ask for an extension now by law and then give parliament a vote on no deal.

Whatever happens parliament has final say currently.

 

[SWP's back]

As it stands I think No to both

May I ask why he’s bothered doing it then?

 

[SWP's back]

No to both currently, as George stated.

Parliament passed a law last week to ensure the 2nd question you’ve asked gives parliament the final say.

If we default to no deal, Johnson has to ask for an extension now by law and then give parliament a vote on no deal.

Whatever happens parliament has final say currently.

Cheers mate, as above, what’s does prorogation achieve?

 

[FlemishDuck]

I presume that indeed the normal perception would be that it's parliament's sovereignity and then in a way it's own fault that it had not set limits before.

However...

The ruling of the scottish court was not based on the principle itself or the lenght of prorogation per se but by token that no goverment official had provided the obligatory explation as to why it was so long. Basicly procedural errors, so perhaps it can be agued that "prorogation would not be legal as long as no written explenation (with liabillety attached) is given as why it should be that long." Because then there would be still procedural issue's by Scottish law. And i guess the courts can legaly and justifyably keep parliament to "correct procedures" withought nessecarily infringing on their turf.

I presume that from a pragmatical pov a number of factors pull on both sides. For example it would not be all that enjoyable to discard a ruling made in Scotland over that matter in the current climate looking at it from that side.

 

[George Hannah]

Cheers mate, as above, what’s does prorogation achieve?

Just reduces the opportunity for the rebels to counter Cummings next wheeze. BoJo doesn't really want to die in his halloween ditch, just have an election where everybody thinks he has in trying to do what they really really want. The GE dissolution will happen immediately after the EU showdown when the pantomime season reopens in mid October - no matter what the outcome. If the Supremes rule against him these theatrics will all be brought forward I think.

 

[Ban-jani]

Cheers mate, as above, what’s does prorogation achieve?

He was hoping it would run down the clock and make it very difficult for the opposition parties to agree on the bill and cooperate with the reduced time.

Unfortunately for Johnson, they acted swiftly and were surprisingly very efficient in getting it through.

The fight against prorogation is now being fought because of future circumstances it can be manipulated I believe.

 

[Chris in London]

There has to be a lawful limit to the right to prorogue, surely. At some stage it has to become justiciable. What if a PM prorogued for a year, for example?

You know the answer to that already. If a year is justiciable, what about six months? What about nine? The boundary between that which is justiciable and that which is not has got to be defined by some measure more readily identifiable than the cuntishness of the prime minister in question.

If you start, as the Supreme Court seems to do, from the premise that dissolving parliament would not be justiciable, what is the difference between proroguing and dissolving? What is it about the quality of the power to prorogue that means the court should be able to review its legality when it cannot do the same with the power to dissolve?

I'm not saying there isn't a distinction, chances are we'll find out tomorrow, but if there is one, it escaped all the advocates who were asked about it.

 

[Chris in London]

Wasn't it a sufficient distinction that dissolution is followed by a GE whereas prorogation can be done seemingly on the whim of a PM (via "advice" to the monarch) without any democratic safety net such as a subsequent GE?

Isn't the safeguard about proroguing that parliament will reassemble? The Order in Council states when Parliament will reassemble, so it can't be said that when the order was made it wasn't clear when parliament would be sitting again.

I'm not saying you're wrong, I'm playing devil's advocate in a case where the outcome seems to me to be on a knife-edge.