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Henry Hill in CapX gets it right.
"Public law Twitter is already hard at work trying to pull the veil of common law fiction – that even the most shocking judgement has always been the law, and that judges make ‘discoveries’ rather than decisions – over today’s ruling. But that veil is starting to fray, snagged on the thorny sight of commentators shifting from Miller’s being a no-hope case to the only proper understanding of the law in the space of less than a fortnight.
"Today’s judgment is a change, in fact if not in theory, and one delivered by an institution which continues to insist on traditional treatment even as it sets aside its traditional restraints."Mr Hill predicts that the power grab by judges will lead to a counter-movement. They have accumulated far too much power since the Human Rights Act was passed, but long before that they were unpopular for treating criminals lightly, finding reasons for not deporting people who manifestly should have been deported and doing innumerable other things that taxi drivers and saloon bars found outrageous. And not using recognised common law principles to do so, but creatively interpreting legislation. Add to that decisions of European judges that have caused fury since 1973.
The idea that the Prime Minister or Leader of the House of Commons should resign for acting on the Attorney-General's advice is absurd.
So is the idea that the Attorney should go for not guessing how the Supreme Court would rule in a decision that amazed and staggered all the bar. Two weeks ago the High Court in London, with the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division sitting, ruled that prorogation is not a matter for the courts.
Yet Lord Young, formerly Sir George Young, Baronet, a man whose judgement I really respect usually and think would have made a fine Speaker, said last night on the BBC that the Leader of the House and the Attorney-General should go.
So is the idea that the Attorney should go for not guessing how the Supreme Court would rule in a decision that amazed and staggered all the bar. Two weeks ago the High Court in London, with the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division sitting, ruled that prorogation is not a matter for the courts.
Yet Lord Young, formerly Sir George Young, Baronet, a man whose judgement I really respect usually and think would have made a fine Speaker, said last night on the BBC that the Leader of the House and the Attorney-General should go.
Sky News could not hide its delight at the news last night. Dermot Murnaghan grinned from ear to ear at the start of the Sky News bulletin. I imagine Jon Snow was delighted. The media class thinks it is defeating Brexit.
BBC Radio 4 was fairer than I expected but people will try to spin this as a ministry in deep trouble and in some ways this is true. It has lost control of events but Boris intended to run on a campaign of him and the people versus the politicians. He will now oppose the judges too and they are even less popular than the House of Commons.
In a Cabinet conference call with the whole cabinet, the Leader of the House Jacob Rees-Mogg described what has happened as a ‘constitutional coup’ and ‘the most extraordinary overthrowing of the constitution’. He was right. Lady Hale, like Mr Bercow, is a narcissist who wants to end her career by getting her name in the history books and the constitutional law textbooks for centuries to come.
Lady Hale said that prorogation takes place in Parliament but is not a proceeding of Parliament. It is a proceeding, I'd have thought, of the Crown in Parliament. Does this mean prorogation is protected from judicial scrutiny by the Bill of Rights of 1689? She ruled not but the wording of the Bill of the Rights is not helpful for the Supreme Court.
This is why the Supreme Court judgment makes use of the Scottish Claim of Right of 1689, which asserts that Parliament should sit frequently.
But to talk as Lady Hale did about 'democratic legitimacy' is worrying. The only legitimacy the court should recognise is the law. In law, the Crown in Parliament and the law of the land are sovereign, whether or not they are democratic.
Ironically the Court seeks to use the sovereignty of the people as an argument against the Government's attempt to implement the referendum result.
Brenda Hale talked as though she was parsing a written constitution of a modern (European) state, not the unwritten rules of an essentially mediaeval and hierarchical one, in which Parliament is summoned and dismissed at the Sovereign's pleasure.
The checks on the power of the Crown over Parliament are political and are principally the Crown's need for the House of Commons to vote supply (tax income) at least once a year. This and the need to pass Government bills are the reasons Parliament has needed to meet, not to scrutinise the executive. Yesterday's judgment is an acknowledgment of how far MPs have become bureaucrats, with offices and staff, who watch proceedings in the House on television in their rooms and sit on committees, exactly as happens in European parliaments.
The Whig Macaulay called England (by which he meant the United Kingdom) a crowned republic. In fact it retained Tory and monarchical features until yesterday, including notably the Crown's prerogative powers.
The English constitution, as Bagehot called it, was radically changed by joining in the EEC, by the Fixed Terms Parliaments Act 2011, by the first Gina Miller case which took away treaty-making powers from the Crown and now yesterday's judgment. This might be the strange death of Tory England but it is a victory not for Whiggery but European Christian (in fact post-Christian) Democracy.
It is impossible to show, in a way that would be clear to an intelligent bystander who had not studied law, what law the Prime Minister broke when he advised prorogation.
Still, we are where we are and he lies dissected on a table by Lady Hale.
Prorogation or no prorogation, Parliament should not be sitting now in September during the party conference. There is no need for Parliament at all for the next few weeks while Boris tries to organise Brexit and every need for it to be prorogued. Instead Speaker Bercow, who is supposed to be strictly neutral, and Dominic Grieve will use the next weeks to make things as difficult as possible for the Government.
It is clear that remaining in the EU is what all the left-wing and centre left parties want: the Liberal Democrats want to stay in the EU without another referendum, Labour wants a rigged one in which foreigners living in the UK and 16 year-olds will have a vote. This is an attempt to set aside the referendum result.
I am sorry to say I am sure the higher judiciary, corrupted by the influence of European law and European legal and political culture, mostly voted Remain and that this must have had an influence on the Supreme Court's decision.
Two months ago Brexit seemed inevitable. Now it does not and may very well never happen.
The Financial Times, the most globalist and pro-EU of all the papers breaks all precedent today and, speaking for the whole establishment, says
This is clearly nonsense, but the editorial writers ardently believe it. They think the prorogation would have been outrageous even if legal.“This ruling leaves a stain on his character and competence. Faced with such a damning judgment, any premier with a shred of respect for British democracy and the responsibilities of his office would resign.”
BBC Radio 4 was fairer than I expected but people will try to spin this as a ministry in deep trouble and in some ways this is true. It has lost control of events but Boris intended to run on a campaign of him and the people versus the politicians. He will now oppose the judges too and they are even less popular than the House of Commons.
In a Cabinet conference call with the whole cabinet, the Leader of the House Jacob Rees-Mogg described what has happened as a ‘constitutional coup’ and ‘the most extraordinary overthrowing of the constitution’. He was right. Lady Hale, like Mr Bercow, is a narcissist who wants to end her career by getting her name in the history books and the constitutional law textbooks for centuries to come.
Lady Hale said that prorogation takes place in Parliament but is not a proceeding of Parliament. It is a proceeding, I'd have thought, of the Crown in Parliament. Does this mean prorogation is protected from judicial scrutiny by the Bill of Rights of 1689? She ruled not but the wording of the Bill of the Rights is not helpful for the Supreme Court.
This is why the Supreme Court judgment makes use of the Scottish Claim of Right of 1689, which asserts that Parliament should sit frequently.
But to talk as Lady Hale did about 'democratic legitimacy' is worrying. The only legitimacy the court should recognise is the law. In law, the Crown in Parliament and the law of the land are sovereign, whether or not they are democratic.
Ironically the Court seeks to use the sovereignty of the people as an argument against the Government's attempt to implement the referendum result.
Brenda Hale talked as though she was parsing a written constitution of a modern (European) state, not the unwritten rules of an essentially mediaeval and hierarchical one, in which Parliament is summoned and dismissed at the Sovereign's pleasure.
The checks on the power of the Crown over Parliament are political and are principally the Crown's need for the House of Commons to vote supply (tax income) at least once a year. This and the need to pass Government bills are the reasons Parliament has needed to meet, not to scrutinise the executive. Yesterday's judgment is an acknowledgment of how far MPs have become bureaucrats, with offices and staff, who watch proceedings in the House on television in their rooms and sit on committees, exactly as happens in European parliaments.
The Whig Macaulay called England (by which he meant the United Kingdom) a crowned republic. In fact it retained Tory and monarchical features until yesterday, including notably the Crown's prerogative powers.
The English constitution, as Bagehot called it, was radically changed by joining in the EEC, by the Fixed Terms Parliaments Act 2011, by the first Gina Miller case which took away treaty-making powers from the Crown and now yesterday's judgment. This might be the strange death of Tory England but it is a victory not for Whiggery but European Christian (in fact post-Christian) Democracy.
It is impossible to show, in a way that would be clear to an intelligent bystander who had not studied law, what law the Prime Minister broke when he advised prorogation.
Still, we are where we are and he lies dissected on a table by Lady Hale.
Prorogation or no prorogation, Parliament should not be sitting now in September during the party conference. There is no need for Parliament at all for the next few weeks while Boris tries to organise Brexit and every need for it to be prorogued. Instead Speaker Bercow, who is supposed to be strictly neutral, and Dominic Grieve will use the next weeks to make things as difficult as possible for the Government.
It is clear that remaining in the EU is what all the left-wing and centre left parties want: the Liberal Democrats want to stay in the EU without another referendum, Labour wants a rigged one in which foreigners living in the UK and 16 year-olds will have a vote. This is an attempt to set aside the referendum result.
I am sorry to say I am sure the higher judiciary, corrupted by the influence of European law and European legal and political culture, mostly voted Remain and that this must have had an influence on the Supreme Court's decision.
Two months ago Brexit seemed inevitable. Now it does not and may very well never happen.
This is good stuff, but I don't see any centre-left parties in parliament except for the Conservatives. Labour, the Scottish and Welsh Nationalists, and the Green Party are all clearly socialists led by Marxists. The Liberal Democrats, who are against both liberty and democracy, are firmly a left-wing party. Only the Democratic Unionists are on the right of the spectrum.
ReplyDeleteI agree - the conservatives are Tories, DUP, Brexit Party and UKIP and I am not sure about the Tories.
DeleteThis is good stuff, but I don't see any centre-left parties in parliament except for the Conservatives. Labour, the Scottish and Welsh Nationalists, and the Green Party are all clearly socialists led by Marxists. The Liberal Democrats, who are against both liberty and democracy, are firmly a left-wing party. Only the Democratic Unionists are on the right of the spectrum.
DeleteOn economic issues the Tories are centre-right. Labour was centre-right as well under the Blairites. Corbyn is at best moderate centre-left.
On social/cultural issues all the parties subscribe to the Social Justice ideology which is a right-wing anti-Marxist ideology. Social Justice was designed from the outset to destroy the Left.
It's not the commies under the bed that you have to worry about. It's the globalist capitalists who have spread the Social Justice poison. They're the real enemy.
You're still thinking in political terms that are half a century out of date.
I agree - the conservatives are Tories, DUP, Brexit Party and UKIP and I am not sure about the Tories.
DeleteThere's nothing remotely conservative about the Conservative Party. They're radicals. On economic issues they're right-wing radicals. On social/cultural issues they're extremists who seek to destroy everything that made traditional Britain what it was.
Nigel Farage is in the same mould.
The Brexit argument is a dispute between two wings of the globalist/SJW elite. It's a dispute between capitalists who think that euro-bureaucracy will make the looting of the country easier, and capitalists who think free trade will make the looting of the country easier.
On cultural issues the Conservatives are not very conservative at all, agreed. The Thatcherites are often classical liberals and the so called One Nation Tories are modern liberals. Alan Clark rightly called the Tory party a blowsy whore.
DeleteNigel Farage like Mrs. Thatcher is in many ways a classical liberal but so was Disraeli. He and she are/were genuine Tories of much the same type.
DeleteOn cultural issues the Conservatives are not very conservative at all, agreed.
DeleteIt's not just that they're lukewarm about defending traditional values. They actively despise traditional values. They actively want to destroy those values.
Cameron, May and Johnson are globalists, liberals, modernists and social revolutionaries who want to overturn the traditional social order. They detest everything that actual Tories used to care about.
Mr Cameron and Mrs May are Blairites and the opposite of social conservatives. They did want to get rid of the social structure of Britain, for egalitarian reasons. Diversity is a principle used to remake society from its roots up.
DeleteMr Cameron and Mrs May are Blairites and the opposite of social conservatives. They did want to get rid of the social structure of Britain, for egalitarian reasons. Diversity is a principle used to remake society from its roots up.
DeleteI don't think egalitarianism has much to do with it. It's more that they want a two-tier society, with an elite class (rich capitalists and the managerial class which includes senior bureaucrats, politicians, academics and media people) safely ensconced at the top. They will be safe because everyone else will be kept distracted with struggles over race, gender and sex.
Social Justice is the opposite of economic egalitarianism. Social Justice was created specifically to avoid economic egalitarianism. Blairites certainly do not want economic egalitarianism.
If Blairites were misguided idealists one could almost forgive them. But they're motivated by greed and their own narrow class interests and that cannot be forgiven.
It's essentially a program to replace the old class structure with a new one. A new aristocracy of wealth and academic credentialism. The aristocracy of rich rootless cosmopolitans.
Boris fired off his biggest gun
ReplyDeleteAnd found himself faced with a larger one.
Yes. A compromise now seems impossible - I had hoped Boris might have gone temporarily for the Norway option, which would have attracted Labour MPs who respect the referendum result and don't want to leave with no deal but the Ultra Remainer Tory MPs and the baleful Supreme Court decision mean no-one thinks he can take the UK out of the EU without a deal. This takes away his bargaining cards .
Delete