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Parliament shutdown: Supreme Court rules Boris Johnson acted unlawfully in bombshell judgment

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Unanimous decision finds that suspension was ‘unlawful, void and of no effect’

Lady Hale delivering this morning’s judgment

The Supreme Court has smashed out its historic judgment on the suspension of parliament, finding decisively in favour of the anti-Brexit activists trying to get MPs back to work.

In a unanimous ruling handed down this morning, 11 justices found that the issue was a matter for the courts and that Boris Johnson’s decision to prorogue parliament was unlawful.

The judgment means that parliament is no longer suspended and can resume sitting immediately to debate Brexit.

Supreme Court president Lady Hale, sporting one of her trademark brooches, said that “the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification”.

As a result, the written judgment (in full below) says, the supposed suspension was also “unlawful, null and of no effect… parliament has not been prorogued”. Putting the matter beyond doubt, the court quashed the royal Order in Council authorising the prorogation, saying that it was no more than “a blank sheet of paper”.

Hale, who retires in a few months’ time, criticised the government’s “prolonged suspension of parliamentary democracy” at a crucial time, adding that “the effect upon the fundamentals of our democracy was extreme”.

Justifying the decision to find the matter justiciable, Hale said that “the courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries. As long ago as 1611, the court held that ‘the King [who was then the government] hath no prerogative but that which the law of the land allows him'”.

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Although the judgment stressed that the court was not concerned with the Prime Minister’s motives in proroguing parliament, it said that “impossible for us to conclude, on the evidence which has been put before us, that there was any reason — let alone a good reason — for the five-week suspension”.

Parliament can now return to debating Brexit if it wants. Hale said that the Prime Minister doesn’t need to do anything to make that happen, although ministers have refused to rule out a second prorogation.

Many legal commentators had assumed that the government would lose the case, but the scale of the defeat was unexpected. Adam Wagner of Doughty Street Chambers said that “even the most gung ho lawyers thought there would be a majority”, while Dinah Rose QC of Blackstone described it as an “absolute rout”.

James Libson, the lawyer for successful appellant Gina Miller, said: “We are glad that the Court recognised the threat to the rule of law caused by a prorogation based on misleading advice given to the Queen. This second success for our client Gina Miller in the Supreme Court is a testament to her resolve to take whatever steps are required to ensure executive overreach does not become a feature of our democracy. This case shows that our courts can be relied on to hold the executive to account when necessary and is evidence of the robustness of our system of separations of powers”.

Thomas de la Mare QC was more succinct, tweeting simply: “Get in”.

The recall of MPs, though politically seismic, will not have necessarily had a major impact on Brexit itself. Parliament has repeatedly voted against almost every possible Brexit plan put before it.

But as it deals with fundamental questions about the relationship of Parliament, government and the courts, law students will be reading the Cherry/Miller case for many years to come.

The Supreme Court’s judgment in full:

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95 Comments

Anonymous

Utter nonsense from the Supreme Court.

Sumption was warning us that they would probably do something ridiculous like this.

If Parliament does not want to be prorogued, then it can stop it. By passing a law stopping it or passing a vote of no confidence.

The courts have no business treading into political territory, doing things that Parliament itself has declined to do.

(138)(89)

WE'RE REMAINING IN THE EU FOREVER AHAHAHAHAHAHA

How does it feel to be on the losing side eh

EH?

(49)(64)

Anonymous

You tell me. You lost the referendum!

(57)(23)

Jessica

The ABSOLUTE STATE of this judgment. It is completely flawed in relation to all three questions – namely, justiciability, lawfulness and relief.

Starting with justiciability, the Court (at [42]) says the sovereignty of Parliament would be undermined if the executive could prevent Parliament from exercising its legislative authority for as long as it pleased. This is fair enough. However, the Court also recognises (at [43]) that in practice the executive cannot prorogue Parliament for as long as it pleases. This is because the executive must convene Parliament in order both to raise money for public spending and maintain a standing army. Having identified these practical constraints, the Court simply dismisses them, saying that they ‘offer scant reassurance’ but without explaining why.

Similarly, at [44] the Court identifies numerous pieces of legislation which impose legal constraints on the executive’s power to bring about prorogation. And at [5], it acknowledges that, in 2011, Parliament specifically opted to preserve that power. However, rather than taking this as evidence that the matter has been considered and dealt with by Parliament, the Court said such statutes confirm ‘the necessity of a legal limit on the power to prorogue’. What sort of reasoning is that?

If Parliament legislates (or declines to legislate), only to be confronted with an unforeseeable set of circumstances down the road, fair enough: the Common Law can step in to provide new limits if the circumstances require. However, first, the (hypothetical) prospect of the executive proroguing Parliament for as long as it pleases is about as foreseeable as it gets. And secondly, the circumstances clearly did not require as much in this instance. When Boris Johnson announced the proposed prorogation, Parliament had sufficient opportunity to pass legislation to stop it. Alternatively, it could have passed a motion of no confidence. Rather than take either opportunity, however, Parliament instead opted to pass legislation intended to stop a ‘no deal’ Brexit.

The fact that Parliament could have legislated to prevent the prorogation is also relevant to the question of lawfulness and the (new) test devised by the Court. The Court said that this was not a case concerning the lawfulness of the exercise of a prerogative power. Rather, it was a case concerning the limits of that power. With respect, this is somewhat unconvincing. Moreover, it looks like a somewhat transparent attempt to sidestep two glaring issues. The first of these is the overwhelming analogy which can otherwise be drawn between prorogation and dissolution – the latter of which was, prior to the Fixed Term Parliament Act 2011, quite literally the archetype of a non-justiciable exercise of a prerogative power (See Lord Roskill in GCHQ [1985] AC 374, 418). The second is the fact that one of the interveners in the case, Sir John Major, arguably prorogued Parliament for an improper purpose in 1997 (something which might not be caught by the new test).

However, even if we put aside the Court’s mental gymnastics in this regard, and just look at the new test, the Court said the exercise of the power falls outside the relevant limits if it has ‘the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions’. Again, Parliament had ample opportunity to counteract the prorogation if this is what it wanted. And it would have had a further two weeks to fulfil its constitutional obligations following the brief period of prorogation.

Finally, we might turn to relief. Article IX of the Bill of Rights reads, “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” But the Court got around this issue by saying (at [68]), ‘The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a “proceeding in Parliament”’ – something which, aside from anything else, simply offends common sense.

Awful.

(139)(22)

Liam

Jessica
Absolutely wonderful breakdown of the ruling. Such a shame you weren’t in the court room as the governments QC !

Anonymous

This is such a muddled, bizarre and incorrect comment.

Para 2 – the Court’s fundamental point was that there could be no unlimited power of prorogation. Rather, the prerogative powers were always subject to overriding principles of constitutional law – namely, parliamentary sovereignty. The Court set out a rich diet of legal authorities at [41] to buttress this point.

However, the Prime Minister sought to argue that there were no circumstances in which prorogation would be justiciable. The PM sought to offer comfort to the Court by saying there were circumstances in which prorogation would be subject to practical constraints. This line of argument failed. The Court did not consider that these practical constraints were a sufficient check on the exercise of prerogative power, at least compared to the overriding principles of parliamentary sovereignty. That is why the Court remarked that they offered ‘scant reassurance’.

Para 3 – Jessica cites [44], but also neglect to cite the Court’s final sentence in that same paragraph – that these statutes “… do not address the situation with which the present appeals are concerned.” As such, they are not relevant.

As for the prorogation/dissolution comparison, the analogy is not overwhelming at all. The essential differences between the two was already dealt with by Lord Garnier in his oral submissions on day 3 of the hearing. Dissolution overrides Parliament in favour of the electorate, while prorogation overrides Parliament in favour of the executive. Jessica is mistaken in her attempt to draw parity between the two concepts (also see [3]-[4])

A chunk of Jessica’s argument appears to be that Parliament should have passed a law to prohibit prorogation if it wanted to. This is an irrelevant line of argument. The legal test is not for Parliament to explain why it didn’t legislate against prorogation. Rather, the onus is on the PM to provide a reasonable justification for proroguing Parliament for an unprecedented period of time and at a critical juncture in the UK’s constitutional development. Not only was the PM unable to provide a reasonable justification, he was also not able to offer *any* reason for proroguing Parliament (see [58]-[61])

Jessica’s last paragraph suggests that the prorogation should be described as a “proceeding in parliament” on the basis of common sense. Jessica conveniently fails to mention the meaning of “proceedings” defined by Erskine May (the authoritative text on parliamentary law and practice), cited by the Court in [67] to mean “…some formal action, usually a decision, taken by the House in
its collective capacity.”

Prorogation, as the exercise of a prerorgative power, is the complete
antithesis of a collective action of the House of Commons. Prorogation is in practice a power exercised by the monarch upon the advice of the Privy Council [3]. It therefore cannot be deemed as a proceeding in Parliament based on the definition of Erskine May. The Court’s analysis was spot on.

The debate will no doubt continue. But in my humble view, the Supreme Court’s analysis is robust, and is the most emphatic defence of the UK constitution I have read in a while. Those who seek to challenge it are welcome, but be sure to come with some decent arguments, rather than tabloid talking points and out-takes from the Policy Exchange.

Lord Gumption

Jessica. Brilliant. Who are you? Can I offer you a job?

Judges often get things wrong. The fact that 10 of them did so at the same time is worrying, to say the least.

Jessica

Dear Anonymous @1:09am,

I would appreciate it if you refrained from making some of your more snide and personal insinuations. As to the substance of what you say…

The court said (at [42]) that an unlimited power of prorogation would be incompatible with Parliamentary sovereignty. It further said (at [43]) that the fact the power is limited in practice offers ‘scant reassurance’. The point I made above is that the Court did not explain WHY this offers scant reassurance. It’s no answer for you to simply say that ‘these practical constraints were [not] a sufficient check’. All you’re doing is parroting the bald and unreasoned assertion made by the Court.

As for [44] and the statutes cited therein, I explain why they are relevant in the subsequent paragraph. In essence, the argument I make is as follows: Parliament has laid down legal limits to the power to prorogue, and if confronted with a completely unforeseeable situation and the circumstances require, it would be open to the Courts to furnish that legislation with (additional) Common Law restraints. However, first, proroguing Parliament for as long as possible and/or for political reasons was completely foreseeable. And secondly, here, the brevity of the proposed prorogation meant that Parliament was not impeded from fulfilling its constitutional duties to an especially great extent.

Turning to dissolution/prorogation, the analogy is indeed overwhelming. And the ‘essential difference’ you cite in your comment is not material. For one, the entire thrust of the Court’s legal argument is that it is the effect of the exercise of the power which matters (see [49]-[50]). Not only does dissolution have the same effect vis-à-vis Parliamentary sovereignty as prorogation, but the periods during which Parliament cannot fulfil its constitutional duties are typically far longer.

For another, your appeal to the electorate is misguided and self-defeating. In this country, and in contrast to the US for example, sovereignty resides in Parliament (not the electorate). Again, the entire argument against the government relied on an expanded concept of PARLIAMENTARY sovereignty. It is thus no answer to say that dissolution is materially different from prorogation because Parliament is deferring to the electorate.

Turning to your comment that it is ‘irrelevant’ that Parliament should have done X, Y or Z. I never said ‘should’ I said ‘could’. This is a crucial difference. The (new) test devised by the Court involves asking whether prorogation involves frustrating or preventing Parliament from discharging its constitutional functions (see [50]). You’ve focused on a subsequent limb of the test – namely, ‘reasonable justification’. However, the point of my example is to show that the proposed prorogation on this occasion did not even clear the first hurdle. That is, it did not frustrate or prevent Parliament from discharging its constitutional functions.

Finally, with regard to relief, you’re again simply parroting the inadequate and somewhat unconvincing reasoning of the Court. That cherry-picked quote from Erskine May is the shakiest of foundations on which to make the point and in any event, when quoted in full, says ‘actions…of the house are clearly proceedings’. The fact that prorogation is effected by Royal Commissioners does not prevent it from being an action of the House. And more importantly, it is for each House not the Courts to manage its affairs.

Anonymous

In making your arguments, you seem to be losing sight of the context in which this particular debacle has taken place. The royal prerogative has always been treated with reverence. Encroachments, few and far between, have come in response to a pressing need. Parliament did indeed have the option to limit the power at the time you mentioned, but in-keeping with convention, they didn’t venture beyond that which was necessary in view of the immediate circumstances. Perhaps it was oversight that they chose not to table a bill limiting the prerogative power. Perhaps they thought their efforts were better geared towards overcoming the Brexit deadlock. Whatever did happen, this extreme judgment has come about by virtue of the extreme circumstances in which we find ourselves – the Supreme Court intervening where Parliament didn’t, with the unfortunate side-effect of tilting the balance of our constitution.

TSC

Sir Edward Coke concluded the famous case of Prohibitions Del Roy (1607) 12 Co. Rep. 63 by stating, in response to the King and Bancroft, the Archbishop of Canterbury: “To which I said, that Bracton saith, Quod Rex non debet esse sub homie, sed sub Deo et Lege.” That is, that the King ought not to be under any man, but under God and the Law.

Wise words indeed. Sadly today the Supreme Court decided, in its collective ‘wisdom,’ to put itself under God, but well above the law and the ‘king.’ Or, at least, above English Law. It will find that this is a very difficult lodgement indeed.

The cry now is that Geoffrey Cox, the Attorney-General, wrongly advised the government as to the law on this issue. No he did not. His opinion was in accord with all existing English legal knowledge and later with that of the court in Northern Ireland and the English High court. True it is that the Scots court differed. Yet the Scots view of the prerogative has long been different from that of the English view.

How the Supreme Court can ‘make up’ the law.

Lord Sumption wrote on this matter in The Times today. Lord Sumption, as a recently retired justice on the Supreme Court has view which are worthy of respect. But what he writes today is, in some sense, shocking. He writes “Our constitution consists of many things that are not law but political conventions. … The result of this constitutional vandalism is that conventions have hardened into law. That is the effect of the Supreme Court ruling.” The constitutional convention allegedly being breached here is the one concerning the timing and length of the prorogation (an act, in itself, a product of an element of the common law called the Royal Prerogative).

In our constitutional history when a convention became transformed into a law, it could only be done by way of statute (ie the Parliament Act 1911). What he is freely admitting is that this is no longer the case. Now the courts can take it upon themselves to convert conventions into law. This is a naked usurpation of power by the courts. It is a breach of our constitutional law and our understood notion of the separation of powers and can only take place because the court itself does not have to answer to any higher authority.

It is a coup, and a coup carried out by the courts. Lord Sumption thinks that this is a fine example of our ‘constitutional flexibility.’ He may think that now. But what if a differently constituted Supreme Court were to make up the law in future occasions in way in which he did not approve? His mouth and pen would then be estopped for he could not then complain of such ‘flexibility.’

Failed logic from a political court.

Note the judgement, released today:

“Conclusions on justiciability

52. Returning, then, to the justiciability of the question of whether the Prime Minister’s advice to the Queen was lawful, we are firmly of the opinion that it is justiciable. As we have explained, it is well established, and is accepted by counsel for the Prime Minister, that the courts can rule on the extent of prerogative powers. That is what the court will be doing in this case by applying the legal standard which we have described. That standard is not concerned with the mode of exercise of the prerogative power within its lawful limits. On the contrary, it is a standard which determines the limits of the power, marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand. An issue which can be resolved by the application of that standard is by definition one which concerns the extent of the power to prorogue, and is therefore justiciable.”

Confused? You should be. This paragraph, a vital paragraph, needs to be translated. No one disputes (see The Case of Proclamations (1610) 12 Co.Rep. 74) that since this decision of Sir Edward Coke and the Court of King’s Bench, that the courts could review the scope and extent of the Royal Prerogative. Yet what happened here was quite different. No lawyer – no English lawyer at any rate – would have doubted that (a). the right to prorogue was made under the prerogative and (hence it was within the scope and extension) and it therefore followed that (b) it could not be reviewed by the courts. That is why the Master of the Rolls, the Lord Chief Justice and the Attorney-General determined in the way that they did.

What the Supreme Court seems to be saying here is this: They cannot review a number of prerogative powers when they are exercised to a standard “within [their] lawful limits”. Yet if the power is challenged by an aggrieved citizen, and when the court judges that the standard is not met, they can review the prerogative power. In other words, from now on all prerogative powers are potentially reviewable. All can be reviewable by virtue of the fact that they do not match up to a certain “standard” as determined by the courts. If they are judged as not being up to this “standard’ they can be quashed or made a nullity.

Now here is the problem with this. Our country stations troops abroad under the Royal Prerogative; it makes treaties; it makes awards it allows for HM Government to act in emergencies.

Prior to yesterday these were considered decisions of high politics. They are no longer. They are now decision of high politics that are reviewable by the court. One judge, three judges, five judges or, potentially, eleven judges, can make this decision and overturn the determination of a democratically elected government.

So much for the right of democracy.

A sad day for the”Rule of Law” and the separation of powers.

A key element of the “Rule of Law” as outlined by A.V. Dicey, and one that we should be loathe to forget is that the courts might preside over the law, but they are not there to invent it so as to serve short-term political ends.

The Four competing sovereignties.

So now we are left with a battle between four sovereignties: the sovereignty originally granted by the European Communities Act 1972; the ‘Peoples’ sovereignty of the 2016 referendum; the continuing sovereignty of Parliament and the seeming continuing and ever-growing sovereignty of the courts.

The courts are meant to be the guardians of our law. The only question that remains is that put by Juvenal:

‘Pone seram, cohibe; sed quis custodiet ipsos Custodes?’

‘Clap on a lock; keep watch and ward; but who is to guard the guards themselves?” Satires , 6, 1, 347.

(9)(3)

Anon

Fantastic news for Brexiteers and those who voted for *ahem* “sovereignty” and “independence” from European institutions.

An indepedent judiciary unanimously ruling to uphold Parliamentary sovereignty against an unelected Prime Minister who unlawfully and unconstitutionally suspended Parliament for no legitimate reason, lied to the Queen in doing so, and who did this solely to stifle scrutiny over government policy.

Isn’t this what Brexiteers voted for when they voted to take back control?

(77)(87)

Anon

For those who downvoted me, can you please explain to us what is so bad about an independent judiciary who looks carefully into the motives and lawfulness of a Prime Minister who shuts down Parliamentary processes during a time a crucial national interest?

Speak up please. Isn’t this what you wanted? We were told we would be leaving the EU to “make our own laws.” Shouldn’t we be doing this carefully and properly, following all due process, consulting all our democratically elected lawmakers?

The Brexit delusion continues…

(41)(54)

Jessica

Ok. I’ll bite.

First, this has little to do with legislating. Until 9 September, it was the position that we would leave the EU without a deal on 31 October unless a deal was first approved by Parliament. This was pursuant to legislation debated and passed by Parliament. From 9 September onwards, it has been the position that it would be extremely difficult to leave the EU without a deal on 31 October. As a pure matter of fact, therefore, the view that Boris Johnson has “stymied” our ability to “make our own laws” is wrong. This is why the Supreme Court put so much emphasis on another function of Parliament besides legislating – namely, scrutinising the executive.

Secondly, people are no doubt upset because their elected representatives – almost all of whom were expressly elected on the promise that they would respect the result of the referendum – continue to undermine both Brexit itself and the government’s negotiating position.

Thirdly, it is agreed that this is “a time of crucial national interest”. However, it might interest you to learn that, historically speaking, this is exactly the sort of time when the power to prorogue is both needed and used. (Take, for example, the prorogation of 178 days at the outbreak of WWI.) Prior to this morning, our constitution recognised that international affairs falls within the competence of the executive and, at times of national importance, Parliament should generally provide more in the way of support (and less in the way of scrutiny) than might otherwise be the case.

Finally, nobody objects to the general principles you cite in your comment. Rather, they object to the legal reasoning of the Court and/or the Court’s ingress to the interface between the executive and Parliament.

(48)(19)

FWW Historian

Unless I am much mistaken there was no prorogation of parliament at the outbreak of WW1. (And despite the Home Rule crisis which meant Asquith was attempting to fight two fires at once with a weak government). Please explain your contrary view..

(8)(0)

WW1 Historian

..I have just checked a summary of Hansard for 1914-15..there was no long lasting prorogation of parliament in either year…mind you a better analogy might have been the use of Article 48 of the Weimar Constitution by von Brüning (and subsequently Schleicher) to avoid scrutiny of their decisions by the Reichstag..and we know where that led to..

Jessica

Apologies, I made a mistake. But it appears you’re also wrong. There WAS a long lasting prorogation following the outbreak of WWI, but it only lasted 53 days (Hansard, 18 September 1914, vol. 66, col. 1018). The 178 day prorogation I cited in my comment was from 15 Aug 1913 until 10 Feb 1914 – i.e. just before the outbreak of WWI.

Admittedly, this makes my argument even stronger. And in any event, 53 days in 1914 still far exceeds the (proposed) 34 days on this occasion. Nevertheless, you’re right to say that there was a mistake in my initial comment.

Incidentally, having now looked into it, it appears there are even better examples than 1914. For example, in 1930 during another period of crucial national importance – namely, the onset of the Great Depression – James MacDonald prorogued Parliament for 87 days.

Whichever way you look at it, therefore, my original argument stands.

Sceptical Brexiteer

What a load of rubbish – the supposed ‘178 day prorogation of parliament in 1914’’ which you claim as precedent never actually happened..can’t you invent something a bit more plausible to make your case?

(5)(9)

skept

One thinks that the rest of her points are also made up too.

Jessica

To ‘Sceptical Brexiteer’: It did happen. However, per my comment above, I was wrong to say it happened “following the outbreak of WW1”. In fact, it happened just before the outbreak of WW1.

To ‘skept’: You seem to be conflating formulating arguments with fabricating facts. I made one minor factual error, which I’ve now corrected. Besides that, my comment stands. It is completely meaningless to say that an argument (as opposed to a fact) is ‘made up’ – of course it is; you might as well have said that my comment is ‘just words’.

Sceptical Brexiteer

Still wrong I’m afraid – Parliament passed a Criminal Justice Amendment Bill in November 1913 so was certainly not prorogued when it did so..

Third fabrication lucky?

Skept

When one makes up the facts, their arguments hardly hold stock in the world of real. Such formulation based on the underlying incapability to organise their facts hardly holds for water-tight arguments.

Jessica

I struggle to understand why you’re being quite so rude.

And as for your supposed Criminal Justice Amendment Bill, I suggest you take it up with Hansard, which has absolutely no record of what you’re talking about https://hansard.parliament.uk/Commons/1913-11-01

Sceptical Brexiteer

Jessica

Apologies if this is a duplicate message…I’m having internet problems.

Pasted is a copy of the 1 November 1913 minutes of Parliament extracted from Hansard. The formatting is poor, but you can readily verify the veracity by searching Hansard efficiently. Not sure quite what this has to do with the legality of Johnson’s attempt to prorogue parliament 106 years later.

Commons Sitting of 1 November 1913 Series 5 Vol. 43

c715
Preamble 13 words
c715
PRIVATE BUSINESS. 28 words
c715
COLONIAL REPORTS. 49 words
c715
FISHERIES (IRELAND). 33 words
c715
WINTER ASSIZES (IRELAND). 25 words
cc715-6
CIVIL SERVICE APPOINTMENTS. 76 words
c716
RAILWAY ACCIDENTS. 62 words
c716
TRADE REPORTS (ANNUAL SERIES). 20 words
ORAL ANSWER TO QUESTION.
c716
Hastings House, Calcutta. 131 words
ORDERS OF THE DAY.
c725
CRIMINAL LAW AMENDMENT BILL. 72 words
cc725-6
New Clause.—(Restrictions on Committals for Trial Under 48 and 49 Vic, c 69.) 339 words
c726
NEW CLAUSE.—(Restriction on Application of Act.) 160 words
cc726-7
NEW CLAUSE.—(Amendment of 48 and 49 Vic, c 69, s. 2.) 144 words
c727
NEW CLAUSE.—(Consent, as a Defence in Proceedings Relating to Indecent Assault.) 258 words
cc727-8
NEW CLAUSE.—(Consent as a Defence in Proceedings Relating to Indecent Assault.) 394 words
cc728-32
NEW CLAUSE.—(Procuring or Defilement of the Feeble-minded.) 1,576 words
cc732-4
NEW CLAUSE.—Amendment of 48 and 49 Vic., c 69, s. 2.) 923 words
cc735-56
Clause 1.—(Power to Arrest ‘without Warrant Persons offending Against 48 and 49 Vict., c. 69, s. 2.) 9,049 words
cc756-806
CLAUSE 2.—(Increased Penalties for Procurers.) 22,539 words, 2 divisions
c806
PETITION PRESENTED. 20 words
Written Answers (Commons) of 1 November 1913 Series 5 Vol. 43

c717W
Civil Service Appointments (Royal Commission). 258 words
NATIONAL INSURANCE ACT.
cc717-8W
SANATORIUM BENEFIT. 334 words
cc718-9W
SUPERANNUATION ALLOWANCES. 180 words
c719W
DEPOSIT CONTRIBUTORS. 94 words
c719W
EXEMPT PERSONS. 108 words
cc719-20W
MILEAGE ALLOWANCE. 113 words
c720W
RETURN OR CONTRIBUTION BOOKS. 237 words
cc720-1W
Board of National Education, Ireland. 78 words
c721W
Foot-and-Mouth Disease. 159 words
cc721-2W
Land Purchase (Ireland). 208 words
c722W
Reinstatement Application (Rathmore). 87 words
c722W
Glen Parva Barracks. 143 words
cc722-4W
Government of India. 283 words
c724W
Silver (Market Price). 141 words
Noticed a typo? | Report other issues | © UK Parliament

Jessica

You’ve copied and pasted details relating to November 1912 (Not November 2013). See here: https://hansard.parliament.uk/Commons/1912-11-01

It appears that your mistake stems from referring to api.parliament.uk rather than Hansard. The former is replete with typos and errors.

Sceptical Brexiteer

Nope – I don’t deal in 106 year old fake news😀..the details are indeed from 1 November 1913.. bytw you will notice there was a quite different agenda for on 1 November 1912..

Sceptical Brexiteer

…the point I think was that the House of Commons sat in 1 November 1913 between two long recesses (not unusual in those “simpler” times) to avoid prorogation.

Sceptical Brexitee

..you need to actually read the Hansard minutes for the first session of parliament in 1914 and then follow the link backwards to the previous sitting which was indeed on 1 November 1913. A superficial Hansard search misses those minutes..I happened to know from my previous career that there was legislation in Nov 1913 so parliament could not have been prorogued then..

Jessica

You have cited Series 5 Vol. 43 c.715. If one goes to Hansard and inputs that reference, one is taken to November 1912: https://hansard.parliament.uk/commons/1912-11-01/debates/e3d8e951-2c1b-4e94-969f-62d26d2d4720/HouseOfCommons#715

You have further copied and pasted a wide range of business, literally every single element of which can be found in the Hansard entry for 1 November 1912: https://hansard.parliament.uk/Commons/1912-11-01

You have claimed that parliament met in November 1913, but there is absolutely no record in Hansard of Parliament meeting during that month: https://hansard.parliament.uk/Commons/1913-11-01

Now you’re making some unclear point about ‘the minutes for the first session in 1914’ and ‘following the link backwards’ to find that the House sat in Nov 1913. But the minutes for the first session in 1914 make no reference to the House sitting in November 2013: https://hansard.parliament.uk/commons/1914-03-23/debates/d9cd9881-a88a-42a0-9305-9b378c1fcd71/CommonsChamber and the last sitting before that date was 15 August 1913.

What more proof could you possibly need? You are clearly wrong.

Jessica

You have cited Series 5 Vol. 43 c.715. If one goes to Hansard and inputs that reference, one is taken to November 1912: https://hansard.parliament.uk/commons/1912-11-01/debates/e3d8e951-2c1b-4e94-969f-62d26d2d4720/HouseOfCommons#715

You have further copied and pasted a wide range of business, literally every single element of which can be found in the Hansard entry for 1 November 1912: https://hansard.parliament.uk/Commons/1912-11-01

You have claimed that parliament met in November 1913, but there is absolutely no record in Hansard of Parliament meeting during that month: https://hansard.parliament.uk/Commons/1913-11-01

Now you’re making some unclear point about the minutes for the first session in 1914 and ‘following the link backwards’ to find that the House sat in Nov 1913. But the minutes for the first session in 1914 make no reference to the House sitting in November 2013: https://hansard.parliament.uk/commons/1914-03-23/debates/d9cd9881-a88a-42a0-9305-9b378c1fcd71/CommonsChamber and the last sitting before that date was 15 August 1913.

What more proof could you possibly need? You are clearly wrong.

Jessica

The website isn’t letting me post my reply – perhaps because it contains so many links. Therefore, here’s my response without links (each and every one of which is available on request). I’ve also posted this twice because you’ve posted your position at two different points in the comments section.

You have cited Series 5 Vol. 43 c.715. If one goes to Hansard and inputs that reference, one is taken to November 1912: [LINK]

You have further copied and pasted a wide range of business, literally every single element of which can be found in the Hansard entry for 1 November 1912: [LINK]

You have claimed that parliament met in November 1913, but there is absolutely no record in Hansard of Parliament meeting during that month: [LINK]

Now you’re making some unclear point about the minutes for the first session in 1914 and ‘following the link backwards’ to find that the House sat in Nov 1913. But the minutes for the first session in 1914 make no reference to the House sitting in November 2013: [LINK] and the last sitting before that date was 15 August 1913: [LINK].

What more proof could you possibly need? You are clearly wrong.

Sceptical Brexiteer

Fwiw, even a century ago when Parliament sat much more infrequently than now and had much longer recesses, prorogation was seen as an unusual step to avoided if possible. Hence, I’m pretty sure, the session on 1 November 1913 was to avoid prorogation. Also (again fwiw) parliament was in recess (not prorogued) during the gap of 53 days in Autumn 1914 which you referred to yesterday. Iirc Asquith was heavily criticised for permitting a recession of this length (to avoid scrutiny of the government’s conduct – sounds familiar?) at a time of heavy casualties (the professional army was more or less wiped out at Mons etc during those months.) Hence Parliament sat much more regularly thereafter during the remainder of the FWW and scrutinised the Government’s activities more critically than, say, in Boer War. It is, of course, risky to draw parallels with the current government’s attempts at prorogation. However for that reason I am a firm believer in a written constitution rather than arguing over precedents of dubious relevance.

Sceptical Brexiteer

Link – go to the Hansard minutes for the first sitting in 1914 and follow the link backwards to the previous sitting on 1 Nov 1913..job done!

Sceptical Brexiteer

Link – go to the Hansard minutes for the first sitting in 1914 and follow the link backwards to the previous sitting on 1 Nov 1913..job done!

Sceptical Brexiteer

Jessica …go to the Hansard link for the sitting on 10 February 1914. There is a link there to previous session on 1 Nov 1913.

Jessica

The problem is that, as I’ve already told you, you’re using api.parliament.uk which has a CLEAR mistake. Namely, it’s incorrectly labelled an entry from 1 November 1912 as 1 November 1913.

If you double-check that entry against Hansard, the error becomes immediately apparent. Even if you stay on api.parliament.uk, the error is easy to spot. The entry before the one you’re relying on (i.e. 15 August 1913) is Series 5 Volume 56. Yet, per your own reference given above, you’re citing something from Series 5 Volume 43 – so it must be from a date PRIOR to August 1913.

Also, my (revised) comment yesterday was not wrong. Parliament was prorogued on 18 September 1914. See: https://hansard.parliament.uk/commons/1914-09-18/debates/c5c7623c-4452-42a9-afc7-1a73425599fd/Prorogation

Your initial mistake is entirely understandable. Your inability or unwillingness to recognise it, however, is not.

Sceptical Brexiteer

In which case the parallels are a little stronger with the present day than I thought – the criticism which Asquith faced when Parliament met again came as a result of avoiding scrutiny by prorogation – not simply because parliament had not been recalled from recess.. although for reasons stated earlier I’d be wary of stretching the parallels too far..

Interloper

Jessica, you really are chockful of shit..

(0)(2)

Mumpsimus Junior

There is nothing wrong with an independent judiciary. Long may it flourish in this country. Neither is there anything wrong with people challenging decision made by the government in the courts. This is a sign of a health pluralist democracy at work.

The problem comes when the Supreme Court becomes another version of the legislature and starts making new law. For that is exactly what it did on Tuesday. Firstly, it determined that conventions could become laws on its say-so. One of the most unconstitutional actions for the last 100 years. Secondly, in an incredible power-grab, it determined that it could now review any and every action carried out under the prerogative to test whether it matched up to “judicial” standards (see para 52 of the judgement.)

The court is supposed to adjudicate the law; not to make it. This is something truly new under the sun.

(4)(1)

Brexiteers are losers

Brexiteers: PARLIAMENT SOVRUNTY BRITISH LAWS CONSTITUTION REEEEEEEE

UKSC: We reaffirm that the sovereignty of parliament cannot be overridden and is one of the most fundamental principles of the constitution.

Brexiteers: no not like that

(25)(12)

Remoaners are losers

Actually, it’s more like:

Parliament: Leave the European Union or Remain? You decide. And whatever you decide, we will do.

People: Ok, we decide to leave the European Union.

Parliament: NO! WE DIDN’T MEAN THAT DECISION REEEEEEEE

(21)(21)

Brexiteers are loserd

I thought prorogation had nothing to do with Brexit? Or did Boris lie?

(11)(2)

Sceptical Brexiteer

Jessica

A copy of the Hansard minutes for the 1 November 1913 sitting of parliament is attached to this message…Apologies for the poor formatting but you can confirm the veracity by searching Hansard efficiently. Of course this has no bearing on Johnson’s attempted prorogation 106 years later..

“Commons Sitting of 1 November 1913 Series 5 Vol. 43

c715
Preamble 13 words
c715
PRIVATE BUSINESS. 28 words
c715
COLONIAL REPORTS. 49 words
c715
FISHERIES (IRELAND). 33 words
c715
WINTER ASSIZES (IRELAND). 25 words
cc715-6
CIVIL SERVICE APPOINTMENTS. 76 words
c716
RAILWAY ACCIDENTS. 62 words
c716
TRADE REPORTS (ANNUAL SERIES). 20 words
ORAL ANSWER TO QUESTION.
c716
Hastings House, Calcutta. 131 words
ORDERS OF THE DAY.
c725
CRIMINAL LAW AMENDMENT BILL. 72 words
cc725-6
New Clause.—(Restrictions on Committals for Trial Under 48 and 49 Vic, c 69.) 339 words
c726
NEW CLAUSE.—(Restriction on Application of Act.) 160 words
cc726-7
NEW CLAUSE.—(Amendment of 48 and 49 Vic, c 69, s. 2.) 144 words
c727
NEW CLAUSE.—(Consent, as a Defence in Proceedings Relating to Indecent Assault.) 258 words
cc727-8
NEW CLAUSE.—(Consent as a Defence in Proceedings Relating to Indecent Assault.) 394 words
cc728-32
NEW CLAUSE.—(Procuring or Defilement of the Feeble-minded.) 1,576 words
cc732-4
NEW CLAUSE.—Amendment of 48 and 49 Vic., c 69, s. 2.) 923 words
cc735-56
Clause 1.—(Power to Arrest ‘without Warrant Persons offending Against 48 and 49 Vict., c. 69, s. 2.) 9,049 words
cc756-806
CLAUSE 2.—(Increased Penalties for Procurers.) 22,539 words, 2 divisions
c806
PETITION PRESENTED. 20 words
Written Answers (Commons) of 1 November 1913 Series 5 Vol. 43

c717W
Civil Service Appointments (Royal Commission). 258 words
NATIONAL INSURANCE ACT.
cc717-8W
SANATORIUM BENEFIT. 334 words
cc718-9W
SUPERANNUATION ALLOWANCES. 180 words
c719W
DEPOSIT CONTRIBUTORS. 94 words
c719W
EXEMPT PERSONS. 108 words
cc719-20W
MILEAGE ALLOWANCE. 113 words
c720W
RETURN OR CONTRIBUTION BOOKS. 237 words
cc720-1W
Board of National Education, Ireland. 78 words
c721W
Foot-and-Mouth Disease. 159 words
cc721-2W
Land Purchase (Ireland). 208 words
c722W
Reinstatement Application (Rathmore). 87 words
c722W
Glen Parva Barracks. 143 words
cc722-4W
Government of India. 283 words
c724W
Silver (Market Price). 141 words”

Sceptical Brexiteer

…the point I think was that the House of Commons sat in 1 November 1913 between two long recesses (not unusual in those “simpler” times) to avoid prorogation.

(0)(0)

Sceptical Brexiteer

..you need to actually read the Hansard minutes for the first session of parliament in 1914 and then follow the link backwards to the previous sitting which was indeed on 1 November 1913. A superficial Hansard search misses those minutes..I happened to know from my previous career that there was legislation in Nov 1913 so parliament could not have been prerogated then..

(0)(0)

Sceptical Brexiteer

Oops …“Prorogued” ..

(0)(0)

Cambridge LLB

Idiots.

(4)(19)

Perplexed

Doesn’t Cambridge do BA, rather than LLB?

(30)(0)

Anonymous

The name was Cambridge LLB. Could be any university in Cambridge. I smell an Anglia Ruskin student among us…

(0)(1)

K King

IS NO ONE GOING TO COMMENT ON THE BROOCH?!?!

(26)(3)

woman in law

Such a badass Lady Hale is.

(19)(1)

LC Brooch check

look at dat brooch tho

looks like a dragonfly or something equally UNREAL

(6)(1)

Oh dear

Good start Boris

(14)(0)

Fapman

The c*nt should resign.

(27)(3)

A

At least she’s retiring soon

(16)(7)

Distressed

She is an openly political hag, that has no place in our court system. She even openly states in interviews that she brints politics into her decisions (yes feminism is a political ideology not a legal one you stupid trout)

(22)(15)

Lol

Is feminism not concerned with identity politics, rather than what you mean by politics?

I fail to see how feminism has an impact on this case

Anonymous

Was a case brought to the court about the prorogation of parliament during the Cash for questions affair? If not, why not?

(7)(1)

Brexit smells

Probably because the government wasn’t trying to avoid parliamentary scrutiny over one of the most significant constitutional events to ever happen in the UK?

(10)(16)

London barrister

I’m absolutely astonished by this judgment. Basic constitutional law 101 is that the courts have the ability to review the government’s actions to establish whether a royal prerogative has been exercised; that was in no way in dispute in this case and all parties accepted that, as Lady Hale rightly pointed out in her summary.

So, if the government has exercised a prerogative, it’s also well established that the courts have no further business regarding it. A principle the High Court’s judgment was completely in line with, by ruling amongst other things that this was a political matter.

But here, we have a court recognising a royal prerogative has been exercised, then plucking (what seems to be out of thin air), some requirement for the government to provide justifications for its exercise of the prerogative. I’m at odds as to where this has come from. If the prerogative has been used, that’s the end of the matter ‘legally’. Whether, morally, you or I agree with the government’s usage of it is something entirely different.

And it’s the latter point that the court has clearly tried to worm into what is a clear use of a prerogative. The court clearly has a moral distaste for the PM’s actions, so it has made what is a ‘moral’ (or alternatively termed ‘political’) decision, by adding a requirement to the use of the prerogative that never existed before, and retrospectively required the government to abide by it.

In my view, if Parliament wants to curtail the use of any prerogative, then it is for Parliament to pass an act to restrict the royal prerogative’s use, which is exactly what happened regarding the prerogative to call an election (now restricted by the Fixed Term Parliaments Act). It’s a shame the government didn’t make this point, but all I can say is, what an absolute mess of a judgment.

(66)(35)

Never take my freedom

It would seem that all 11 judges were drawn in when it was mentioned that this could be the second braveheart.

(6)(0)

Lawyer X

Such a shame you weren’t leading the argument for the Government. If just one of the lawyers involved had your knowledge of constitutional law this would never have happened.

(23)(5)

ReluctantLibdemvoter

As a non lawyer why should the executive routinely not provide a reason for the exercise of the prerogative power?
Is it to be used randomly or for corrupt reasons simply because there is no check on its use?

(3)(2)

Lord No

It’s a weird decision without a doubt.

They use the “reasonable justification” test which was used, essentially, in UNISON and Leech. That a contravention of an individual’s constitutional rights must be reasonably justified.

For me, the test does not work. UNISON and Leech dealt with secondary legislation created by ministers under an enabling act. The issue for the court was simple to determine the scope of the enabling legislation. In those cases, it really was an issue of “Parliament cannot have intended to give ministers the right to infringe constitutional rights”.

The issue was not, as is it is here, of defining the scope of prerogative powers.

(6)(0)

ukdragon37

Those who are saying Parliament could have stopped the exercise of the prerogative itself clearly did not listen to the arguments made before the court. As Lord Pannick pointed out, the convention is that an Act that restricted royal prerogative would have required consent from the monarch. The government could then have advised against granting that consent.

The example Pannick gave was the introduction to the second reading of the Fixed-Term Parliaments Act given at the time by Clegg: “I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.”

https://publications.parliament.uk/pa/cm201011/cmhansrd/cm100913/debtext/100913-0002.htm#10091315000001

(11)(1)

Might want to think again

Let’s be serious. Any suggestion by anyone (including Pannick) that the Queen would (even consider to) refuse to give consent to a request by Parliament to curtail a prerogative are either academics and/or a little deluded, in the same way that any suggestion the Queen would/could ever refuse to give royal assent to an Act are equally academic and/or deluded.

I.e. if consent was ever refused, it would cause an obvious constitutional crisis by the monarch failing to account for the fact she has no legal power, as she is only a symbolic ‘constitutional’ monarch. So if she ever refused consent, Parliament would/could quite easily pass an Act to remove the Queen’s ability to give consent / royal assent. As Pannick repeatedly repeated in this case, Parliament is ‘supreme’ in our democracy, so if Parliament’s wish was to curtail a prerogative, then exactly that will happen. Any suggestion otherwise flies in the face of this case in that Parliament is ultimately supreme.

(15)(5)

ukdragon37

“Any suggestion otherwise flies in the face of this case in that Parliament is ultimately supreme.” – Had that assertion been accepted by the government, we wouldn’t be here litigating this case. Even though the queen by herself has no legal power, she does when acting on the advice of her PM. That’s exactly why we are here to determine the bounds of this executive power under the constitutional order. It is easier for you to say now, with this judgment, Parliament will of course get its way, but it was clearly not settled law a priori.

Similarly it is not a priori evident that Parliament has the power to unilaterally curtail prerogative power without consent if the government is intransigent.

(5)(11)

Confused52

The Queen was so advised by Tony Blair and Queens Consent was withheld in the case of Tam Dalziel trying to stop the invasion of Iraq with a bill. It is clear from Hansard. There was a murmur of an outcry!

No delusion just history.

(2)(2)

Balliol BCL

If people feel that voting doesn’t change anything, then violence is the next step. Remoaners, you don’t want this. Who do you think the military will support?

(0)(18)

Logic Al

Those not breaking the law. Who do you think that is?

(13)(0)

unimpressed

You seem to be suggesting that the military is pro-brexit, and by extension willing to violently interfere with anti-brexit parties.

Amazed at what you rely on to suggest, I won’t even bother with purport, this?

(5)(0)

Anonymous

I thought it was the Queen who prorogued parliament – what power has the SC got to tell Lizzie that she cannot do that? That odious little Bercow man is jumping up and down again!

(6)(11)

Jip

Shut up gammon

(12)(0)

Steve from Corporate

What a disaster. What are the academics going to call the original Miller case now?
Miller 1, Miller 2017 or Miller part 1?
We have been deprived of a smooth case name that has entered the English lexicon. Abolish the Supreme Court and replace it with a court that bases its decisions entirely on how easy a case can be given a cool and fashionable nickname.

Kind regards
The case citation officer behind ‘Angry Farmers’ aka Commission v France (1997)

(13)(2)

Lady Poo

Season 2 of the Brexit Saga is getting interesting

(3)(1)

Salty gammon slices

Loving the sizzling, frothing gammon in the comments section. Smells delicious.

(12)(43)

97* degree Brother X

Good to see that our puppets that are the justices of the Supreme Court have unanimously made Brexit even harder. We won’t accept Brexit. Brexit will not happen. Our new world order of governance will not be hampered by it. We will make sure of it. Watch this space.

The ancient and accepted brotherhood of the illuminati

(18)(7)

Manta Ray

The UK is now ultimately ruled by 11 unelected judges.

(30)(17)

Bob

Most the Judges are new little saplings, All the good old judges have retired apart from Lord Kerr.

They are all under the thumb of Lady Hale’s influence.

Not a single dissenting judgement, not a single addition to the reasoning.

Fuck me, Miller 1 was easier to decide than this, and that had dissents and additions.

(8)(8)

Tips

Where’s a Denning when you need one, hey?

(4)(2)

Gammon

*sizzle*

(3)(25)

Anon

I liked this:

61. It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

What happened to the burden of proof?

(14)(1)

Gina Filler

A truly retarded decision made by a bunch of intellectual midgets – so different from the old House of Lords.

(16)(0)

Jcb336

The intellectual midget is you!

(1)(10)

Jim

So true. Lady Black (non Oxbridge family hack from Leeds) and Lord Hughes (non Oxbridge criminal hack from Birmingham – thankfully, retired) would not have got within spitting distance of the old House of Lords. Nor would there have been such a proliferation of judges from Scotland and Northern Ireland who are, by definition, second rate. Lord Kerr is particularly thick.

(12)(1)

Anon

Someone appears to be an elitist bellend. Twat

(0)(0)

Distressed Constitutionalist

The authority relied upon by the Supreme court was not relevant to the case at hand, and in many cases the ratio was directly opposite to what the Supreme court was trying to square them into.

The whole justiceability hinged on the notion that prerogative powers were limitedby the constitutional principles of accountability and sovereignty.

Sovereignty is understood as the law made by parliament is absolute, not that the processess within parliament are a protected process from powers expressely preserved by parliament that are held by the executive. Bills in parliament are worthless pieces of paper when it comes to legal authority, they only attain authority when passed as statute.

The sovereignty argument falls flat on its head and overrelies on the Case of Proclamation from 1611, which itself merely stated that statute overrides royal proclamation.

The principle of accountabilty was derived from it being a “fundamental principle in the workings of a Westminster democracy”, that is to say that politicians are accountable to the public who democratically elected them.

Last time I checked, being held accountable by your electorate is a political outcome not a legal one. So where exactly is the legal authority behind a principle of accountability? Well none was cited.

So the court hinged its decision on the basis that prerogative powers deriving from the crowns innate privilege, are restricted by common law as well as statute, and therefore it was reviewable by the court.

Further common law principles pulled from thin air, now apply to this particular prerogative power, even though no such ever principles have ever been applied before.

Even further to this, the application of such principles mean that any action against them must be justified. But the court has not provided any tools by which lower courts can assess whether a justification is valid, nor has it described any scenario as such.

We are not left with subject principles, apparated from thin air, that have set no bar by which ministers judge their actions, or that the lower courts can apply.

We have complete arbitrary justice, that has strong armed the executive beneath the Supreme Court, in a horrendous power grab. This is fundamentally undermining the separation of powers, and creates a complete lawfayre out of the executive.

The court did the same thing in Miller 1 when it conflated treaty making powers with legislative powers.

The worst case scenario was also a complete farce. The government has the absolute authority to declare war, and sue for peace. If the government declared war on every nation, undoubtadely this would be far worse than proproging parliament. it would be a doomsday situation.

If the government decided to nuke another nuclear country such as the USA this would also be a predicament. Nonetheless, these would be perfectly legal actions within the purview of the government.

So the “worst case scenario” oh my god its a legal quagmire argument has no merit. It does not justify replacing legal authority with poorly written moral arguments.

(21)(1)

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