OT: Prorouging and the Supreme Court

This mess is what you get when nobody thought to actually write a proper constitution in the first place so deciding what is and is not legal depends very much on opinion, not actual written law. Brian

That's not necessarily true, I'm afraid.

The Americans are always said to have an advantage over us with their "clear" Constitution. But, for example, nobody over there can seem to agree on what "The Right to bear arms" actually means in practice. And, in any case, even if the Founding Fathers were quite clear in their intentions in 1776, would they still think the same way almost 250 years later?

The Bill of Rights *is* written law.

Lord Sumption, recently retired Justice of the Supreme Court, gave a nice example is his BBC Reith lectures this year. He compared the fact that abortion in Europe is not a particularly contentious issue, whereas in the US it is. In Europe, whether we have legal abortion or not is decided by elected politicians, whereas in the US it's been decided by the US Supreme Court - whose members are not elected.

One point he made - and the interested should really go listen for themselves - was that the nature of the political process meant that the decision (here) was at least felt to be made with sufficient popular support, thus giving it natural democratic legitimacy; this differed from the US case, where the Supreme Court decided using law and Constitution, and without such a democratic backing being widely felt. It's not clear that attempting to sidestep Parliament with the recent instance of proroguing is a good idea in this context, because Parliament as a whole has a greater democratic legitimacy than *any* government, especially a minority one. Whether this is with - or without - a legal test on the legitimacy of that proroguing makes little difference to the wider impression of democratic legitimacy.

Brexiteers, if they "win", and however they win, need the rest of the population to feel that the process was democratic enough so that they will shrug, and not try to reverse it - and likewise, in reverse, for any putative Remain success. I imagine the recent proroguing could well have been technically legal (although we will find out soon), but even so it is widely-enough seen as democratically bankrupt, and could cause problems long term for any Boris-led Brexit outcome.

#Paul

Yeah in his Reith Lectures he disparaged use of the law in political matters but he's quite keen on using the law to override Johnson's reluctance to ask for an extension by getting some minion to sign a letter "on his behalf" to ask for one. I wonder if the EU people would accept such a document. With any luck the French will veto it in any case.

Sumption also doesn't like the referendums much - and wants the Brexit one reversed - with another one of course.

Just like the referendum of 2016, then.

That's what the referendum was about. And it could be said to have been done under the purest form of PR, so I don't know what the LibDems problem with it is. Especially as the LibDems, including their current leader, were calling for such a referendum some years before anyone else.

Bercow's antics are certainly democratically bankrupt.

I think such a judgment would depend on whether you think the Government is the democratically legitimate authority, or Parliament is. One of Sumption's significant points was that in the UK system, the government /only/ has a legitimacy because that was granted to it by Parliament. On that basis, using the normally uncontroversial administrative mechanism of proroguing in a manner so as to deliberately *avoid* scrutiny by Parliament immediately prior to a significant deadline amounts to an attempt to sideline the real democratic authority - i.e. Parliament and the MP's it is made of, and as were voted for by the electorate.

#Paul

His lectures were on the subject of the balance between law and politics. He did not disparage the use of law, he advanced the argument that the balance had moved to far towards law.

Again, a simplistic and not especially accurate rendering of Sumnption's views. On Brexit, I think they perhaps are given clearly enough in the Q&A at the end of the 5th lecture, you can read the transcript which is online. I'd like to pick out a pithy quote and paste it here - but, as I said - any such attempt is unlikely to be a good representation of his views.

#Paul

Trouble is that he just claims that and as he says, can't prove that.

You can also make the case that the reason that wasn?t changed by politicians in the USA is that abortion is much more controversial there.

And he made the point that the abolition of slavery there was also not possible by the politicians alone, it needed a full civil war to get that started.

Quite. They'd have needed Turnip's crystal ball - or rather one which actually worked - to predict assault rifles.

This is the crux of it for me for the whole Brexit process and could so easily been resolved by:

2) Requiring any decision to require a supermajority providing a 'clear will of the people' as you reflect above (50%+1 is not 'sufficient popular support' and hence doesn't (hasn't) gained 'natural democratic legitimacy, IMHO).

Ironically the latter was the very requirement Firage insisted would be needed for him to consider a Remain win.

Cheers, T i m

and what use would that have been if it were only advisory ?

So you wouldn't want the democracy that we've used for the past few hundred years. well as long as those voting know you've changed the rules and that those that chose not to vote you respect that right and don't label them as supporting either of the options on the ballot paper, whatever they are.

Why are yuo supporting farages POV, seems strange that you'd support what some would call a raging brexiteer, but it's hardly suprising is it.

if you read the Supreme Court's judgement you will see that, constitutionally, it was only advisory, but the Government decided to honour the result

And therefore going against the 'spirit' (for a start) of what it should have been.

Cheers, T i m

Remmebr T i m has trouble reading, so is unlikely to understand.

I will admit that I didn;t understand when David Cameron said what he said at the time and whether he could change what wasn;t legally binding to what is without a parliamentary vote or at least votes from his party. All I could find was this. Note that it says following.

Did Cameron say the referendum was binding? Following the 2016 referendum, the High Court confirmed that the result was not legally binding, owing to the constitutional principles of parliamentary sovereignty and representative democracy, and the legislation authorising the referendum did not contain clear words to the contrary.

But I still don;t see that as T i m being able to claim that remain was the result because there wasn;t a supermajority , and that all those that didn;t vote wanted to remain even though they didn't chose to vote remain.

The 'will of the people' is just a buzz word he likes to throw around, similar to the way farage would if he had lost.

It was not the government. MPs of all parties voted for a referendum and agreed, both in advance and afterwards, that they would be bound by the result.

At the subsequent general election, around 2/3 of current MPs stood on a manifesto of abdiing by that result.

Even without those commitments, do you think it would have been tenable to have the referendum, for leave to win and for the government to just say, well it was too close for our liking, so we'll just ignore it?

SteveW

And so they will - given a reasonable deal. Which leave promised us would be easy.

But what is a reasonable deal? Remaining in a customs union, where you cannot set your own tariffs or do trade deals with other countries? Remaining in the single market, where you must follow all the EU's rules rather than just producing goods that meet EU standards and which requires freedom of movement?

A good deal is simply a trade deal without all the extras, but that is not on offer to the UK, despite the EU doing such deals with other countries.

SteveW