Bojo previously won an award for being the only person I've called a tosser twice; and now tops that by getting a third accolade. The context: Boris prorogued parliament, it-is-to-be-presumed in an effort to avoid parliamentary debate and scrutiny; in particular to avoid them seizing the order and passing a law to force him to ask for an extension to Brexit. That failed, so arguably the case was rather pointless, though we'll see.My own opinion was that the judges would rule the matter justiciable, because it increases their remit. I'm doubtful that it is fundamentally as opposed to opportunistically good; and think that the matter is political and so outside the court's purview, as the govt argued. The court has an obvious conflict of interest, inevitably. However, given the tenor of the times, there will be general public and MP support for the judges, so they've picked their time well. Given that, Bojo was a fool for risking this1. Judges find law rather than making it at least in theory, and what they've "found" now gives them authority to intervene in pretty well anything they like. Per Hobbes: the Interpretation of all Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator. Note that in this context "appoint" doesn't just mean fire-and-forget; it means control.
Tomorrow - as that wazzock Corbyn just said on the R4 10 pm news - parliament will resume. It will be interesting to see what they manage to do with that. Because arguably all they needed to do, has been done2. Will they manage to "scutinise" him? It would be fun if he had a meltdown.
The judgement itself carefully avoids saying Bojo lied to the Queen, presumably in an effort to keep her out of all this mess: We do not know what the Queen was told and cannot draw any conclusions about it. That is I think a small rebuke to the Scottish meninwigs. The two examples that the courts offer for justicability in para 32 are unconvincing, as well as very old, and don't obviously relate to the matter at hand (para 41 might be more convincing but I didn't look at any of those cases). I think they know they're on very thin ground here. Notice also the weaselly might have been accomplished in para 33; as they know full well, it's too late for that. para 35 points out that there is existing case-law that the analogous dissolution is non-justicable; they then spend a lot of words ignoring that. Para 50 then sets out a vague "standard" that could be interpreted by anyone any way, and para 51 somewhat dishonestly asserts that it's a good standard. After that I think it becomes uninteresting; they've made up their minds and will wrap some words around whatever they want to decide.
Side note: I think the lack of prorogation means there is no Queen's speech, which means if Bojo wanted to put anything tricky into that, he's probably stuffed.
Notes
1. Honesty compels me to confess that my prediction was that they wouldn't do anything like void the progation; but Bojo has higher paid advisers than me. Bojo's main sin is to be a lightweight piece of fluff at a time when someone competent was required; perhaps he was correct to back off last time.
2. Indeed, if they hadn't been prorogued, they'd probably still be vacillating.
3. Sumpers sounded sensible on R4 but what he wrote in the Times does not. Most of it evades the issue, and the bit to the point (Yet the Supreme Court’s judgment should be welcomed even...) is wrong. As, of course, is "Parliament is the supreme source of law".
Refs
* See-also my comment at Is That Cricket? by Bryan Caplan
* Dems go for impeachment; pass the popcorn
* Global schadenfreude shortage looms after huge surge in demand in UK
* Mostly true but false in one v important way that is why ppl keep underestimating him - he's a much more complex person than Cameron who really was just as he seemed says Dom.
There has to be a way of preventing MPS being expelled from the House, whether the expulsion is being done by Cromwell with a regiment of dragoons, or by Boris with an improper use of prorogation. I was ignorant enough to think that the Monarch formed some kind of constitutional safeguard: it seems there aren't any such safeguards unless the courts provide it.
ReplyDeleteShould be BoJo even though he is just a commoner.
ReplyDeleteBagehot's "The English Constitution" is relevant, though of course a little out of date. I read it over the summer and mean to review it here at some point.
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