The decision by the government of Tony Blair to puff up the judicial committee of the House of Lords into the new Supreme Court a few years ago might well have been a mistake.
Views vary as to whether it should, the other day, have ventured onto new political ground. What is not in serious dispute is that it has ventured onto that new political ground. The judgment of the court claims that there is nothing wrong with that. It includes this:
- Secondly, although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.
This last sentence may be doubted. Certainly, it is contrary to the views of the Lord Chief Justice and the other members of the Divisional Court as expressed in Miller, R (On the Application Of) v The Prime Minister Continue reading
There are a lot of lawyer jokes. And sometimes I do feel a bit queasy about what my professional colleagues do. But I do not think I have ever felt ashamed of being a lawyer as I did when I read the judgment of the Supreme Court in Miller v Prime Minister.
Three times, the President of the court, Lady Hale, denied that the case was political. Few will believe that denial. Clearly, the proceedings were brought for a political purpose, and the judgment against the government is clearly part of a determined reluctance by the British establishment to give effect to the democratic results of the Brexit referendum in 2016.
The Supreme Court was wrong on all three elements of its judgment: Continue reading
I have posted earlier today about the possibility that the Surrender Bill might not receive the Royal assent tomorrow. Such an event is not the only circumstance in which the democratic will of the British people – to leave the EU – might be achieved. It might also be achieved if the EU decline to grant any further extension, in which case the UK leaves the EU on 31st October.
The Surrender Bill contains the form of a draft letter which the Prime Minister is supposed to write to Donald Tusk by 19th October.
The Surrender Bill does not prohibit the Prime Minister from other communications with Donald Tusk, and the prospect of EU declining to grant an extension (and thus seeing the back of the UK out of the EU at the end of October) might be enhanced if, in the meantime, the Prime Minister were to write to Donald Tusk along the following lines: Continue reading
We live in bizarre constitutional times. And tomorrow, Monday, 9 September 2019, is a particularly interesting day. Will the Surrender Bill obtain the Royal assent?
This question gives rise to issues which do not normally arise. Normally, the government controls the business of Parliament, such that bills do not get Parliamentary time without government support. Normally, the government enjoys a majority in the Commons, such that bills without government support are not passed. Normally, Parliament does not pass bills that defy the result of a referendum and are contrary to the election pledges of both major parties.
But these are not normal times. It is not unusual for the opposition to try to disrupt the business of the government of the day. That is true of both the main political parties, but is perhaps especially true of Labour Party oppositions; many Labour Party politicians resent Conservative politicians to the point of hatred. And it is not unprecedented for there to be groups of people who owe their principal allegiance, not to their own country but to a foreign power. The Babington plotters and the Jacobites in the 16th and 17th centuries owed their principal allegiance to Rome as the hub of Roman Catholicism, and in the 20th century the British communists owed their principal allegiance to Moscow as the hub of communism. Just as the Remainers now apparently owe their principal allegiance to Brussels as the hub of the European dream.
What is unprecedented is the unholy alliance between those two.
It is not the function of Parliament to Continue reading
Quite apart from all the other reasons why it is a bad idea, the Remainers’ Surrender Bill – intended to order the Prime Minister to seek an extension for Brexit from the EU, and to obey any instructions from the EU as to when, if ever, Brexit is to happen – breaches the fundamental principles of separation of powers.
It is not the function of Parliament to govern; that is the function of the Executive. There are very good reasons for that constitutional principle. For a slow-moving and public forum such as a legislative chamber to try to dictate the management of the State’s affairs is hopelessly inefficient. It is scarcely better than Parliament seeking to order the captain of the English cricket team what to do if he wins the toss, who to get to bowl and for what spells, and when to declare. Come to think of it, it’s worse than that. It’s like ordering the captain of the English cricket team to make these decisions according to the wishes of the captain of the Australian cricket team.
Plainly, the effect of the Surrender Bill, if it becomes law and not Continue reading
For various reasons, I have not posted so much recently. But I have a couple of moments now, and here are some recent thoughts:
We at the beginning g of September now, towards the end of the rainier winter on the Fleurieu Peninsula, but neither my rainwater tanks nor my dam (“Loch Phenelry”) are yet full.
If my croquet lawn is to flourish over the summer, I need some more rain.
Ever since the British government handed back (unnecessarily, in my view) Hong Kong to the Chinese, Hong Kong was doomed. Without any pleasure in saying so at all, I fear the protesters have no real prospect of succeeding. Hong Kong used to be a colony of the British, but was free, in that the government did pretty much what the people wished for, even though there were no elections. Now and for the foreseeable future, it is a colony of the Chinese, and not free: now the government does what the Chinese want.
For many people, that which is forbidden is all the more delicious.
For me, as for many other people, the best fruit is knowledge. There is a delight in Continue reading
Oh really? How easily they forget.
But it wasn’t just Grieve… Continue reading
… England has won the 3rd Ashes Test, making (I believe) the highest run chase in England test match history.
The Remoaners must be spitting tacks. Everything was supposed be be going to pot as a result of the referendum, and the appointment of Boris Johnson as Prime Minister was supposed to make the milk in everyone’s fridge go sour overnight.
Instead of that, the Brexit spirit seems to be doing rather well. England is not Continue reading
The question arises as to how to categorise the MPs who are determined to try to block a “no deal” Brexit.
Strictly speaking, of course, it is not a “no deal” Brexit at all, because both the UK and the EU are bound by the deal of the World Trade Organisation treaty terms, and in any event, both the UK and the EU are committed to the notion that all sorts of things, such as the free passage of aircraft, are agreed even if there is no comprehensive withdrawal agreement.
But moving on from that terminological inexactitude (we will live with it for the moment):
We don’t mean “mad” quite in the mental health sense. We mean just really, really stupid.
The car analogy has been made before. Telling the EU that under no circumstances will the UK leave the EU without a withdrawal deal is not dissimilar to walking into a second-hand Mercedes dealer and saying “I will not leave this forecourt without having bought one of your cars”. In those circumstances, the price of a second-hand Mercedes (and the EU is very much second-hand goods) goes up quite a bit. Or, put another way, committing that there will never be a “no deal” is tantamount to putting oneself over a barrel and asking the Germans to give one a very thorough Continue reading