Scottish judges rule PM's suspension of parliament is unlawful

Clearly, the only solution going forward is regicide.

R1 - Well , the funeral alone would certainly run the clock down till All Hallows Eve.

My sense of things, and I'm not sure how this plays out in Brussels, is that Parliament can vote all it likes on preventing the UK from leaving with No Deal on 31st October - if Brussels refuses an extension (which it can do and has threatened to do before), the UK leaves the EU at midnight that day with or without a deal. I would love to be a fly on the wall in Brussels HQ at this point.

There seems to be as much of a split in the Scottish judicial system as everywhere else in the nation.

Oswald Spengler foretold, and blamed, the Decline of the West on Beethoven. I think Spengler was prescient. Don't kid yourself: the divisions here are more open because of BREXIT but they're evident across the First World. In my view, BREXIT is a symptom, not a cause.

I say we burn Beethoven's effigy this coming Fifth November.

Brussels will not rule out an extension because the fault of No Deal would fall on them, not on Boris. This is something they will not allow to happen, even if they have to approve five more extensions.

As for this ruling, it will probably get overturned by the Supreme Court next week. Still, enjoy the schadenfreude until then.

R3 I'm not, for the record, experiencing any schadenfreude at all. I don't think Britain ever should have joined the EEA, which is what it thought it was doing at the time.

I don't think Brussels care any longer about appearances, and at this point, I don't think anyone will blame them for BREXIT (although I do believe they bore some responsibility early on by not realising that if policies don't work for some member, especially major players and huge net contributors, those policies should be revisited, and they simply refused to consider doing so) when they have so many larger scapegoats to hand at home.

But I am curious as to your basis for believing the Supreme Court will overturn this ruling.

Britain has many exemptions in the EU, so your argument doesn't really hold much water. And the Sick man of Europe would never have become a huge net contributor if it hadn't joined the EEA in the first place.

The Supreme Court will hear two challenges, one from the English High Court, which has already ruled prorogation wasn't unlawful, and this one from the Scottish Court of Session. It will interpret the latter in the context of Scottish law, but at the end of they day, it will be a political decision and I'd be surprised if it sided with them on this one.

[quote]I'm not, for the record, experiencing any schadenfreude at all.

I'm glad we got on the record that Anonymous of Datalounge is not experiencing schadenfreude when it comes to this matter. Very valuable for historians, I'm sure.

[quote]The starkly divergent conclusions of the English and Scottish courts are due to be resolved in a series of supreme court hearings next week. [bold]Northern Ireland’s judges are due to deliver their decision on a similar application on Thursday morning.[/bold]

Here's a nice Twitter thread on why the two decisions are different.

[quote]Not seen a court decision like this in thirty years of constitutional geekery.

[quote]Boris Johnson is the first prime minister to have been found by a court to have misled a king or queen.

"Johnson lied to the Queen." I am not a fan of David Allen Green's as a rule, but I find that I agree with him on this.

R6 - Re the schadenfreude, the previous poster used the term first and I was responding to him. The term suggested that I was happy on some level at Johnson's legal predicament handed down from the Scottish court. I corrected the impression using the same term the poster used. But I suppose it is to be expected that a certain level of discourse is beyond you.

R5 - Thanks for your reply. First, whilst true the UK has many exemptions, none of them are from the four freedoms, including free movement of people/labour, which was one of the core problems. When Cameron went to Brussels in February 2016 begging for something persuasive he could take back re the migration situation, Merkel and Juncker laughed him out of the room. They could easily have headed BREXIT off with a genuine migrant cap.

This came on the heels of the 2015 migrant crisis. Britain was exempt from the Quantitative Majority Vote through which Merkel tried to force permanent migrant quotas down the throats of bloc members, but Britain did come under shall we say "political pressure" and agreed to take 20,000 Syrians over five years. By 2016, Cameron knew, and tried to tell Brussels, that the climate re migration especially had changed from the one in which he made his ridiculous promise re a referendum.

Add to that stories carried in the Express and Mail that showed a clearly full-grown male over 20 at least who got in as a child (i.e., under 16), and you have a perfect storm of bad optics.

So those exemptions didn't add up to much when the day came. The exemption many Britons really wanted, was not on the table.

Re the courts: you appear to be on the right track on this - already, someone connected to the English courts has stated that the Scottish decision was political and not legal, so you may be right that the English courts will strike the Scottish decision down.

If the high court strikes down the Scottish decision, we would appear to be back where we started, with Parliament suspended and Johnson running down the clock.

Meanwhile, Merkel is quoted in the news as saying that of course a deal is always possible until the very last moment.

As for lying to the Queen - HM is not a gullible fool (except where her children and grandchildren are concerned). It is unlikely she was in any doubt of the motive behind the bill of Johnson presented for her royal assent, and she had no choice, either way.

Re Australia - I do remember the 1975 constitutional storm. I also remember that Kerr ended his career disgraced by the episode, that Whitlam's government was riddled with corruption scandals, and that some constitutional tweaks went through after the crisis to ensure that it did not happen again. I'm not Australian, obviously, but practically speaking, it remains true that the Queen is essentially powerless.

[quote] I'm not Australian, obviously

Nothing obvious about that mate. It's not Quantitative Majority Vote, it's qualified majority voting.

[quote] the English courts will strike the Scottish decision down

The English courts have no jurisdiction over the Scottish courts. The Supreme Court is neither English nor Scottish, but UK (nor is it the high court).

No need to try to get out of the four freedoms: EU legislation provides an answer - see link.

It's almost like Boris is really trying to outdo Donny.

R2 And, was Beethoven a symptom or a cause? According to Oswald Spengler.

Out of curiosity, does Scotland have a functioning government at the moment? Last I heard they didn't.

Don't let Nicola Sturgeon hear you R14 or she'll be functioning all over you.

Oops, I'm thinking of Stormont/Northern Ireland.

R11 - The UK Supreme Court does not have jurisdiction over the Scottish courts but the term "jurisdiction" is misleading - it's like saying the US Supreme Court doesn't have "jurisdiction" over the New York State Supreme Court.u Well, it doesn't: but it does outrank it and it can overturn a ruling in which case fhe previous court's ruling is deprived of any legal impact. Scotland is still part of the United Kingdon, and if the UK Supreme Court rules that the PM's prorogation of Parliament was legal, that Scottish decision, as you well know, becomes meaningless in terms of legal force. If you want to split hairs over the casual use of the term "thrown out", by all means use another one. The effect is the same.

If the UK Supreme Court finds that the PM's action was legal, the Scottish Court's ruling is meaningless.

As for the four freedoms: the initial period offered by the EU to members to set a limit on migrant workers is only for a time and Britain thanks to Tony Blair didn't take advantage of it. The "renegotiated" deal brought back from Brussels in Februatry 2016 by Cameron offered a half-hearted "emergency cap" if and when the bloc member can show the policy is exerting undue pressure on public services.

If Britain had a real working exemption from that particular "freedom" that it could exercise at will, the whole "renegotiation" that Cameron tried, begging Brussels for the ability to set such a cap, would have been unnecessary, and BREXIT would never have happened.

The uproar would still have occurred if the second biggest net contributor to the EU's budget proclaimed that pursuant to Clause AAAAAAAZZZZZZ in the dusty EU constitution, it was setting a cap on member migration at, say, 5,000 per year and do yer worst.

Re Australia, as I said, it was my memory that some constitutional tweaking was done after the Kerr-Whitlam affair to head off future such events. I'll say up front I didn't look it up, but I did remember the affair and thought some constitutional change had occurred afterward.

R13 - According to Spengler, Beethoven's heroic romanticism glorified the Individual Man, but at the cost of a sense of duty to society, thus helping to support the drift in the West as it moved through the Industrial Revolution into an era of unparalleled improvements in technology, medicine, hygiene, and control of family size, with comcomitant easy access to entertainment, mobility, and rampant consumerism, of individual fulfillment above any other value.

The argument of where individual rights and the need for a coherent and functioning society with widely shared values conflict, particularly in America, was for awhile discussed more in mid-20th century. But at this point, I think it clear which way the decision went, fed by a variety of factors: the expectations of the middle-class, the collapse of religion as a cultural glue and replaced by political affiliations, and most recently by the rise of social media and identity politics.

I'm inclined to agree with Spengler broadly, and he's hardly alone in raising the issue of individual rights re obligation to a civil values, but I do think his singling out of Beethoven was more symbolic than anything else.

"Jurisdiction is the power that an official or court of law has to enforce laws or carry out legal judgments. It is the right or power of a political or legal agency to exercise its authority over a territory or subject matter. It also refers to the power that agency might have to exercise its authority over a person."

The Scottish courts do not have jurisdiction to ENFORCE for the entire UK their decision that the PM's prorogation of Parliament is illegal. That is why the case is going to the the UK Supreme Court, which has wider jurisdiction than the Scottish courts, and therefore is the only entity with sufficient jurisdiction to enforce such a decision.

In essence, then, the Scottish court's ruling has the status of a "lower court" ruling and, therefore, any contrary ruling by the UK Supreme Court will obviate its legal force.

So, in essence, yes, the UK Supreme court does have "jurisdiction" in Scotland - and Wales - and Northern Ireland, when called upon to render a decision on one of those courts' rulings. Only in criminal cases does Scotland, unlike NI and Wales, have supreme jurisdiction, part of its special devolved powers.

It's like saying the New York State Supreme Court, in deciding, e.g., that asylum seekers may seek asylum in the US even if they have passed through another safe country without seeking asylum there, doesn't have to pay attention to the US Supreme Court ruling just handed down saying the US government has the right to deny asylum to petitioners who have passed through another safe country without seeking asylum there first.

It is Scotland's courts that do not have sufficient jurisdiction in this particular case.

And, yes, the UK Supreme Court is located in London, England, the nation's capital, just as the US Supreme Court is located in Washington, DC, its capital. That doesn't mean the US Supreme Court has no jurisdiction in Alaska.

The point is that the Scottish ruling is binding on the UK government. The other point is that the UK Supreme Court is not an English court. Comparisons of the US and UK Supreme Courts are very difficult: for instance [see link], "the U.S. Supreme Court may hear appeals from state supreme courts only if there is a question of law under the United States Constitution (which includes issues arising from federal treaties, statutes, or regulations), and those appeals are heard at the Court's sole discretion." The UK Supreme Court can hear an appeal where the appellate court or the Supreme Court grants permission to appeal.

In the UK, the parliament is supreme, not the courts. It's not like in the USA which has separation of powers.

The Scottish ruling will not be binding on the UK government if the UK Supreme Court ruling rejects it. I do not know why this is concept is being contested.

The Scottish court's ruling is only binding on the UK government IF it is either unopposed or is on appeal upheld by the UK Supreme Court, or else why would the government bother to "appeal" at all?! What would be the point of turning to the SCOTUK if the Scottish Court's ruling couldn't be overruled?!

Yes, the SCOTUK's powers are limted in terms of bypassing Parliamentary legislation, but if it rules that the PM's prorogation is legal, Parliament is still suspended legally and has to find another way round the prorogation issue, such as passing legislation making it illegal.

The SCOTUK is the FINAL court of appeal in the United Kingdom of Great Britain and Northern Ireland, except in Scotland in criminal matters.

Thus, until Parliament passes new legislation, what will be binding on the governnment is the SCOTUK's ruling, regardless of whether it opposes or upholds the Scottish court's ruling.

The purpose of creating the SCOTUK was to rule on large constitutional issues that affect the WHOLE population.

The supremacy of parliament is a basic feature of the UK's (unwritten) constitution. Parliament has three parts: the Queen, the House of Lords and the House of Commons. Neither the the USA nor the UK has a perfect separation of powers, but the USA is far the closer to achieving the separation although:

[quote] The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent the President may be said to be exercising a legislative function. Again, appointment of certain high officials is subject to the approval of the Senate. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions.

There is no such thing as SCOTUK. The prorogation is unlawful under Scottish law which is binding on the UK government.

[quote] "the advice to prorogue Parliament on a day between 9 and 12 September until 14 October, and hence any prorogation which followed thereon, is unlawful and thus null and of no effect."

The UK Supreme Court will have the final say on the matter. Meanwhile, the prorogation is unlawful, null and of no effect.

[quote] Meanwhile, the prorogation is unlawful, null and of no effect.

Not to sound stupid, but what is the practical effect of that?

[quote] The purpose of creating the SCOTUK was to rule on large constitutional issues that affect the WHOLE population.

The UK Supreme Court is not there for constitutional issues alone. It also deals with all other areas of the law including family, tax, tort, contract etc.

[quote] Not to sound stupid, but what is the practical effect of that?

The practical effect is that there has been no prorogation. The fact that there is no parliamentary business is another matter and the Speaker has stated that it will be up to the executive to move in this respect, if it is so minded.

"The UK Supreme Court will have the final say on the matter. Meanwhile, the prorogation is unlawful, null and of no effect."

I do not understand why this is being argued. We are in fact all agreed: as noted above: 1) unless and until the UK Supreme Court rules otherwise, the Scottish Court's ruling is binding on the government. If the UK Supreme Court rules otherwise, its ruling supersedes the Scottish Court ruling.

It IS the last and highest court of APPEAL in the UK otherwise why would the fucking government bother to fucking APPEAL the Scottish Court's fucking ruling?

Yes, we know Parliament in the end rules. But Parliament hasn't passed a law against prorogation. Until it does, the final say is the UK Supreme Court's ruling.

And whoever upthread claims that no SCOTUK exists, here:

"The Supreme Court (Welsh: Y Goruchaf Lys, Scottish Gaelic: An Àrd-Chùirt, Irish: An Chúirt Uachtarach; sometimes colloquially referred to by the acronyms UKSC or SCOTUK) is the final court of appeal in the United Kingdom for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

As authorised by the Constitutional Reform Act 2005, Part 3, Section 23(1) and s. 23,[1] the Supreme Court of the United Kingdom was formally established on 1 October 2009.

It assumed the judicial functions of the House of Lords, which had been exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 judges appointed as members of the House of Lords to carry out its judicial business as the Appellate Committee of the House of Lords. Its jurisdiction over devolution matters had previously been exercised by the Judicial Committee of the Privy Council.

The current President of the Supreme Court is Baroness Hale of Richmond, and its Deputy President is Lord Reed.

countries. It cannot overturn any primary legislation made by Parliament.

However, it can overturn secondary legislation if, for example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made. Further, under section 4 of the Human Rights Act 1998, the Supreme Court, like some other courts in the United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European Convention on Human Rights.

Such a declaration can apply to primary or secondary legislation. The legislation is not overturned by the declaration, and neither Parliament nor the government is required to agree with any such declaration. However, if they do accept a declaration, ministers can exercise powers under section 10 of the Human Rights Act to amend the legislation by statutory instrument to remove the incompatibility or ask Parliament to amend the legislation."

Let's hope the Supreme Court doesn't find a nice question of EU law to refer to the ECJ ...

BTW R27 your posts are too long.

Which the executive won't, because he called the prorogation, making it an entirely meaningless exercise.

R29 according to the Scots law there has been no prorogation. It was the lying to the Queen etc which was the entirely meaningless exercise.

R30 - The assertion that Johnson "lied" to the Queen is unproven in any court. It is a political assumption, not a legal one. There is then no basis on which to invalidate the prorogation on that basis, especially as it is hardly likely HM will be called to testify.

Anyone who feels particular posts are too long is free to skip them.

R30 - which is to say, we are agreed on that point about the Queen.

R31

The prorogation has been invalidated for the reasons given in the Scottish court.

r31 Lying can be easily proven through internal memos. He deceived her, at best.

The poor Queen! She's so trusting and naive!!

R35 - I know, really!? The implied insult to a woman who has seen more delicate state papers than any MP has, who has worked with, what is it now, ten+ PMs, has 65 years' experiende, and the implication is that she is too gullible and stupid not to know exactly what is going and fell for a crafty email from Boris Johnson!!

I do not know what the SCOTUK's decision will be, but they are absolutely right that the assertion that HM fell for some cheesy lie from a new PM because she doesn't follow the news, or go through the papers in that red dispatch box that arrives daily no matter where she is or what time of year it is, is absurd and insulting to her decades watching her government at work.

She has the constitutional right to be consulted, to advise, and to warn.

Yes, the prorogation for the MOMENT is null and void, per the Scottish Court's decision.

And if the SCOTUK rules differently, prorogation will return to legality and life until Parliament finds another way round it - as the clock ticks down toward 31 October and Brussels is now making daily noises about "compromises" and "deals" - and NI sees the engine of history coming at it like the Flying Scotsman.

If Johnson and Brussels come to some agreement over NI, look for another page of history to turn. For those unfamiliar with the Good Friday Agreement, both the Republic of Ireland and Parliament are enjoined by it to agree to unification if a majority of citizens in both countries agree to it in a special vote.

NI voted REMAIN, although its Parliamentary Party, the DUP, is for LEAVE. People keep looking at Scotland, but it's NI that will end up being the real story here if a deal goes through.

Which, I'm sure, Nicola Sturgeon hopes isn't the case, because No Deal is her best argument for another indy/ref, the only political issue in which she is remotely invested, despite the bad state of the economy, national debt, and education in Scotland.

And someone please stuff something down David Cameron's throat as he makes piteous noises about how "we're stuck" so we need another BREXIT referendum.

We're stuck where his idiocy put us.

Thank God his 730 page tome is coming out soon, to explain why!

A) The Supreme Court will be asked to decide on Tuesday whether the prime minister’s prorogation of Parliament was legal. Its decision will have fundamental implications not just for the powers of the prime minister over parliament, but on how much Scotland’s distinctive constitutional history matters to the UK’s constitution.

B) The High Court of Northern Ireland has ruled that a no-deal Brexit would not breach the Good Friday Agreement, which supports the peace process in the British province.

R37 - It is reported that Dodgy Dave accuses Boris Johnson of "not believing in BREXIT" and supporting LEAVE only to further his career, an accusation I find hilarious, as Cameron only promised a referendum to claw back votes that UKIP was siphoning off from the Tories, and to shut up some eurosceptics backbenchers.

Takes one to know one, I suppose.

40 days to Brexit

[post redacted because linking to dailymail.co.uk clearly indicates that the poster is either a troll or an idiot (probably both, honestly.) Our advice is that you just ignore this poster but whatever you do, don't click on any link to this putrid rag.]

r41 Different issue entirely; the complainant itself admitted it jumped the gun.

The big issue -- which I posted at r1 -- will be decided at noon on Monday should Boris fail to send that letter to the EU. So watch out for that one.

Sorry, I meant the r1 in the linked thread. There are so many Brexit threads at this point, I get them all confused now and then.