uksc & prorogation case

Carawaystick

Any thoughts on how the uksc will decide tomorrow?

A lot of the commentary I read seemed to come down on either something is not justiciable or it is, but none seemed to reckon they had a concept like here where the SC ruled the excessive delays in holding bye elections were unreasonable.

Also is the speedy turnaround because they sort of have to, or because they're on their holidays and have nothing else to consider?

Last point, there seems to be loads of commentry about the case in uk media, I presume the contempt rules are more lax cos the judges are much less likely to be swayed by eejits speculating?

Marcusm

Carawaystick wrote: »

Any thoughts on how the uksc will decide tomorrow?

A lot of the commentary I read seemed to come down on either something is not justiciable or it is, but none seemed to reckon they had a concept like here where the SC ruled the excessive delays in holding bye elections were unreasonable.

Also is the speedy turnaround because they sort of have to, or because they're on their holidays and have nothing else to consider?

Last point, there seems to be loads of commentry about the case in uk media, I presume the contempt rules are more lax cos the judges are much less likely to be swayed by eejits speculating?

I have read lots of comments to the extent that the matter is unclear and that the decision will have something in it for all sides. The commentary is due to two factors - the focus by certain of the justices on remedies, only relevant if they would find against the government in some respect, however minor. Plus the fact that it was anticipated by the government side that the justices would have indicated that the case pled by the applicants did not meet the standards required but reserve the reasoning until later. I.e. it was clear that all was not clearly to be dismissed. Bear in mind that the substance of the arguments will have been contained in the written application/rehearsd in the lower (High) court.

I wonder will there really be one for everyone in the audience, i.e. make them all a little happy but fail to do anything of substance. Overturning a prorogation would only have any substantial effect if there was a formal finding that Johnson had lied to the sovereign/privy council rather than simply did not have good grounds for the prorogation. It's not as if they have a time machine to reopen parliament.

hullaballoo

I'd imagine there will be a finding that Johnson misled the queen but that the executive have the power to prorogue parliament for any reason and misleading the head of state is irrelevant.

Also I am sure the point will be made that the monarch has no discretion to refuse prorogation in any event as that would trespass onto a power reserved to the executive.

Another point that is sure to be made is that the constitution allows for parliament to legislate for its own protection and could/should enact legislation preventing prorogation without reference to parliament if it so wishes but it isn't for judges to pass laws from the bench.

The usual codswallop from them, in other words.

Peregrinus

Carawaystick wrote: »

Any thoughts on how the uksc will decide tomorrow?

A lot of the commentary I read seemed to come down on either something is not justiciable or it is, but none seemed to reckon they had a concept like here where the SC ruled the excessive delays in holding bye elections were unreasonable.

There are basically two questions the court has to answer:

1. Is this justiciable at all? Is it something a court can enquire into? The government's case is "no, it's not". The majority of the commentators, for what it's worth, seem to think that the court will say "yes, it is".

2. If it's justiciable, on what grounds can the court properly set aside the PM's actions? The Scottish Court set them aside on the grounds that they were undertaken for an improper motive (viz, to sideline Parliament). The length of the prorogation wasn't directly relevant, only indirectly, in that proroguing for five weeks strongly suggested that there was more involved than preparation for a Queen's speech, which typically takes three or four days. But the Supreme Court might decide that the PM's motive isn't an issue the courts can look at, or it's not the only issue; they might rule that the courts should judge the legality of prorogation advice on quite different grounds. And, depending on what those grounds are, they might or might not find the prorogation advice improper.

Carawaystick wrote: »

Also is the speedy turnaround because they sort of have to, or because they're on their holidays and have nothing else to consider?

Because it's urgent. If it weren't, they'd still be on their holidays.

Carawaystick wrote: »

Last point, there seems to be loads of commentry about the case in uk media, I presume the contempt rules are more lax cos the judges are much less likely to be swayed by eejits speculating?

If by "more lax" you mean more lax than in Ireland, because UK judges are less likely to be swayed than Irish judges, no, that's wrong. If by "more lax" you mean more lax than if there was a jury in the case, yes, that's correct.

Robbo

Here we go, the matter was justiciable and the prorogation was unlawful.

I think when there was talk of remedies last week, the writing was on the wall for Boris & Co.

Marcusm

Robbo wrote: »

Here we go, the matter was justiciable and the prorogation was unlawful.

I think when there was talk of remedies last week, the writing was on the wall for Boris & Co.

Amazingly, they have gone further and stated that the prorogation was ineffective and it was up to the respective Speakers to decide how to proceed. That is a very aggressive approach in the part of the judiciary to effectively determine that the sovereign’s action was void (if I am reading this correctly) as opposed to badly founded or voidable.

GM228

The biggest single shock for me was not the decision on justiciability or the lawfulness of the advice, it was when Lady Hale stated "this is the unanimous judgement of all eleven justices".

Peregrinus

GM228 wrote: »

The biggest single shock for me was not the decision on justiciability or the lawfulness of the advice, it was when Lady Hale stated "this is the unanimous judgement of all eleven justices".

Maybe this shouldn't have been so shocking? I could see a strong argument for the judges to agree, knowing the political sensitivity of the case, that if at all possible they should endavour to give a unanimous ruling supported by a unanimous judgment, and Lady Hale then drafting in close consultation with the others to produce a text all could agree to.

Victor

Peregrinus wrote: »

I could see a strong argument for the judges to agree, knowing the political sensitivity of the case, that if at all possible they should endavour to give a unanimous ruling supported by a unanimous judgment

I don't know the technical terms, but would that be dependent on the judges all coming to the same conclusion, on broadly similar grounds? It wouldn't work if a judge(s) came to a different conclusion.

Peregrinus

Victor wrote: »

I don't know the technical terms, but would that be dependent on the judges all coming to the same conclusion, on broadly similar grounds? It wouldn't work if a judge(s) came to a different conclusion.

Yes, it would. But there is some room for movement; for example, entirely hypothetically, Lord A might think that the conclusions (question is justiciable; advice was unlawful) could be justified on any of, say, three different grounds; Lord B might think that only two of those grounds were solid, and Lord C might think only one of them. By framing a decision that relies only on the ground acceptable to Lord C, all three judges can support it. And in the interests of unanimity and clarity Lords A and B might agree not to give separate judgments setting out other grounds on which they think the judgment could also have been made, which avoids any temptation for Lord C to give a judgment suggesting that those grounds would not be sufficient.

In other words, if the judges can find any statement of the law which they can all endorse, then they can all support a judgment which confines itself to setting that out, and they can all agree not to embark on separate judgments exploring other possible statements of the law.

Victor

While this is a supreme court, what if Lord C's grounds were, in retrospect, erroneous or capable of being bypassed in a relatively simple manner, that could be prevented by the other grounds?

Peregrinus

Not sure I understand your point. Obviously any judgment of the Supreme Court may later be overturned by another judgment of the Supreme Court, though (a) it happens but rarely, and (b) it could happen no matter what the first judgment said. Obviously in a particular case (like this one) the judges might agree that delivering a unamimous, clear, unqualified judgment is more valuable that trying to future-proof the judgment against the relatively remote risk of reversal by a later court.

ohnonotgmail

Does anybody know how costs work in cases like this? Do they follow the judgement? Or would the government cover the costs anyway because the case is of national interest? I read that mischon de reya, who were working for gina miller, were working pro bono but presumably they would hope to get paid if they won.