Prorogation Ruled To Be Unlawful

[THECORBYLOON]

https://www.bbc.co.uk/news/uk-politics-49810261

What now for Boris?

[jim360]

// The real irony is that the UK government has no right to appeal this political sleight of hand from the SC..........except to the European Court Of Justice. //

Not that it particularly matters, but they don't have the right to Appeal to the European Court of Justice. This is a matter of UK law, not European Law, so the CJEU has no jurisdiction.

I mean, much of the rest of what you said was also wrong, but that's worth noting in particular.

[anneasquith]

TCL. I knew I’d read it somewhere, unfortunately I got overtaken with excitement and gave the wrong scenario. Thanks :*)

[jim360]

That's what judicial reviews are all about.

You'll forgive me, JD, but I confess, I have no formal legal training and all I know is from what I've read about as an enthusiastic amateur. But as I understand it, this is a basic principle of Judicial Review, is it not? It can -- and often does -- establish that advice, if it is given contrary to the rule of law, is unlawful. So why am I having to explain fundamental legal principles to someone with a first class degree in law, apparently?

[Togo]

Khandro....there will be no Conservative conference......Parliament will be dissolved and a G.E. called before then. Thursday 24th October it is then.

[jim360]

Optimistic much? Don't think that the Opposition will support a GE any time soon, and, stupid though it is that the decision over whether or not to hold a GE is now effectively Jeremy Corbyn's, that remains the position in practice and in law.

[THECORBYLOON]

"Will the Attorney General now face prosecution?"

Under what law would he be prosecuted?

[jno]

it might well be true, dannyk. In fairytales, the king is always above suspicion, it's his evil advisers who have to be stopped. Indeed, I think those invoilved in the Peasants' Revolt dd the same, proclaiming their allegiance to the king but wanting to get rid of assorted councillors.

None the less, it is proper for the man at the top to take responsibility for a breach of this magnitude rather than having it passed on down to some unfortunate typist.

[Khandro]

jno; The law has not been breached.

[ichkeria]

The opposition needs parliament to be in session on Oct 18, so plainly they aren’t going to force a general election.
This was a monumental error of judgment by Johnson. Not only has he been found to be acting unlawfully, but the prorogation hasn’t achieved what he wanted anyway. It had already failed before the ruling.

[THECORBYLOON]

JD, I don't have a 1st Class Degree in Law but I had a look at Lady Hale's summary.

She said, "The Court is bound to conclude, therefore, 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."

That is why it is unlawful.

[Old_Geezer]

They didn't have to conclude anything of the sort. They chose to.

[Old_Geezer]

"The Government's job is most certainly not to "clarify the law". That's the role of the judges, who interpret the law, and Parliament, who make the law."

It most certainly is government's job when judges choose to misinterpret in order to make their own law. The existing legislation needs to be replaced with updated legislation that clarifies government rules, not judges.

[jim360]

Under the UK's Constitution, though, the Government has no role in clarifying what is and is not the law. That is clearly the role of the Courts, whose literal job is to interpret the law. They may of course have made a misinterpretation. But Government cannot and should not try to take on that role instead.

Also, have you read the judgement yet, OG? Or are you just calling it wrong because it goes against the result you wanted?

[jim360]

// The existing legislation needs to be replaced with updated legislation that clarifies government rules, not judges. //

Also, the passing of legislation is a matter for Parliament, so yet again you are making a basic constitutional mistake. And if you can't get that right I am sure we can be forgiven for thinking that you've got the rest of it wrong too. If Parliament chooses to pass a law in the future that explicitly states that the prerogative power to prorogue Parliament may be exercised entirely at the PM's discretion, then they can of course do so. But, absent such a law, the courts have interpreted what there is in accordance with the constitutional principle that the limits of prerogative powers are a matter for them, and not for the executive, to determine.

[Mozz71]

//It most certainly is government's job when judges choose to misinterpret in order to make their own law. The existing legislation needs to be replaced with updated legislation that clarifies government rules, not judges//

So, basically change the laws so they don't have to break them to get their way?

[Old_Geezer]

Listening to Corbyn at the moment. He, like Mozz, doesn't seem to know the difference between illegal and unlawful. But Corbyn has no excuse, he can read Jim's clarification here.

If law is being misinterpreted then it needs to be clarified. Got B all to do with avoiding breaking the law, but avoiding judges coming to a wrong decision.

[Old_Geezer]

"Also, the passing of legislation is a matter for Parliament,"
Sure, and after a GE and a parliament that respects democracy and the government governing it'd pass easily. So glad that's not wrong then. Take about clutching at straws.

[Old_Geezer]

But, absent such a law, the courts have interpreted what there is in accordance with their own preference to determine what they can deem invalid, where in the absence of a law the rule is that it's allowed. At least in the UK, even if not elsewhere in Europe.

[jim360]

Well, quite, I noticed that too (re Corbyn), OG. But never mind. Confusing "unlawful" and "illegal" is presumably not as bad as confusing "lawful" and "unlawful"!

Prior to this decision I said that I wouldn't be surprised if it went the other way. But the decision has been made and the Supreme Court has clearly stated their reasoning. On balance, they are more likely to know how to interpret the law than I, or anybody else here. And it is their role -- not Government's, not even Parliament's -- to clarify law when it exists. They have done exactly that, and no Government in future will have the ability to prorogue Parliament for such a long period with so little, indeed no, legal justification.

Unless and until Parliament passes a new law saying otherwise, that is the legal position.

[jim360]

What preference? The Court stated several times in its judgement that this is nothing to do with what they think on Brexit, and correctly stated that it wouldn't matter anyway. See Paragraph 57 of the Judgement for example, that I assume you still haven't read.