Wednesday 11 September 2019

Preventing prorogation is a very British coup attempt


In a big surprise the Court of Session in Edinburgh has ruled that proroguing Parliament was unlawful.

We don't know the full reading - we just have this note.

"The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution."

As Ian Hislop once said, “If this is justice I'm a banana.”

I know the Scots have Civil not Common Law but how is this decision justified? Much more importantly will the Supreme Court in London confirm or overturn it next week?

Today's judgment may make sense in Scottish law, for all I know. Civil Law, starting from cloudy general principles not from knotty empirical details, is incomprehensible to Anglo-Saxons. This lack of comprehension is the main reason for Brexit - European law is Civil Law and Europeans start from first principles when they think. They and the English will never understand each other.

English barristers say it has no chance. Let's hope not for the sake of democracy. The High Court in London meanwhile has delivered its full judgement after rejecting Gina Miller’s anti-prorogation case last Friday, maintaining that advice to the Sovereign about prorogation is ‘non justiciable’. 

Tony Blair and Peter Mandelson ('the Prince of Darkness') advised Labour and Liberal Democrat MPs last week and helped put together the Remain alliance in Parliament that first passed the bill preventing Government taking the UK out of the EU without Parliament's approval and then prevented the Government calling an election in October.

We are seeing, to adapt the title of Chris Mullins' book, a very British attempted coup .

According an anonymous source quoted by Daily The Telegraph, "
Blair and Mandelson are
pulling the strings. Mandelson is the puppet master, he has had meetings via proxy with all the parties involved in the Remain alliance and sends emails with ideas. Blair’s people have been speaking to Jo Swinson’s people.”

Blair and Mandelson have decades of experience of getting what they want and represent the establishment.

This, it is said, is why Jeremy Corbyn changed his mind about an election on 15 October, despite having called fifty times this year for an election, genuinely thinking one would put him in Number 10 and having indicated he would support a motion to dissolve Parliament once the Benn bill (to prevent the UK leaving the EU without a deal on 31 October) had received the royal assent

The Government had agreed to drop opposition to the Benn bill in the Lords because they thought that Corbyn had agreed to an election. When it turned out that he had not why did Boris not at that point resurrect the filibuster in the House of Lords or advise the Queen not to give the bill Royal Assent?

I am not sure but it is the Remainers, not the Government, who are tearing up the Constitution, led by the Remainer Speaker John Bercow.

The British Constitution is not one document but many laws, understandings, conventions and the procedures of the House of Commons contained in the book Erskine May: Parliamentary Practice. The House of Commons had no right to decide its own order of business and what bills to initiate and debate - that was for the Government - until Bercow rewrote the rules.

He did so so that the House of Commons, which was elected in 2017 pledged to make sure the referendum decision of 2016 Brexit was implemented, could prevent the Government carrying out the pledge.

Whether Corbyn broke his word about an election on 15 October or the Government failed to nail the agreement down I don't know, but I think we would have heard were it the former.

Boris, for his part, lied when he pretended prorogation had nothing to do with Brexit and I think he lied when that he said that he did not want an election. Lies by a Prime Minister are absolutely not acceptable, and these ones were not even important or convincing lies.

I am reminded of Reginald Maudling, when he was his assistant, complaining timidly to Churchill, as he sat in bed, that a passage in a draft speech he had read out was not true.

'In a long and distinguished career in public life I have never been dissuaded from saying anything because it was not true.' 

'But I think, sir, that this will be seen not to be true.'

'Ah, that is very different consideration.'

and the great man drew a line with a red pencil across the offending paragraph.

Why did Boris not prorogue Parliament until 1 November, thus showing the EU leaders that the Government would not be defeated in Parliament if it sought to leave the EU without a deal, as Tony Blair assures them would happen, and so encouraging them to do a deal?

Possibly because it would look undemocratic , but certainly because former Attorney General Dominic Grieve successfully carried an amendment to the Northern Ireland Executive Formation Bill by one vote, requiring Parliament to be sitting to receive fortnightly reports by September and again by October 14. The amendment passed the Commons because one Government whip forgot to vote.

Had that Whip done his job Boris could have had unfettered power to prorogue till November 1 and leave without a deal.

Dominic Grieve is certainly clever enough to have thought this up for himself but I think he has been liaising with Tony Blair.

A prorogation till 1 November might have enabled Boris to get a good deal, but I no longer think it is what Boris wanted. I think he always preferred an early election where he would pledge himself to making a substantively new deal or leaving the EU by 31 October with no deal. He hoped to win, leave the EU somehow and have a parliamentary majority for five years.

An election is not possible while Parliament is prorogued because it requires a resolution of the House of Commons supported by 434 MPs.

Boris prorogued Parliament for as long as he could, either to enable him to negotiate with the EU without being undercut by Parliament or to trigger a rebellion and early election. But it has all gone horribly wrong for him and for Leavers.

However over the next five weeks with or without Parliament much can happen and will.


  1. Very well presented summaey Paule en if it is very disturbingly bad news for Leavers and democracy. Blair and Mandelson should have met their demise long ago at the end of the hangman's noose.

  2. We are seeing, to adapt the title of Chris Mullins' book, a very British attempted coup.

    It looks more like two simultaneous opposing attempted coups. You have two factions, both determined to get their own way without any regards for constitutions, conventions, truth, ethics or morality.

    Both sides are quite happy to do whatever it takes to win, even if the price is the destruction of the constitution.

    Whether Brexit happens or not you're going to end up with a ruined political system in which no-one will have any faith. Politics in Britain has been exposed as being purely a matter of power with principles counting for nothing. Of course politics always is purely about power but to keep the system working you have to maintain the illusion that it's more than just struggles for power between rival gangsters.

    Boris, for his part, lied when he pretended prorogation had nothing to do with Brexit and I think he lied when that he said that he did not want an election. Lies by a Prime Minister are absolutely not acceptable, and these ones were not even important or convincing lies.

    Surely that means he is unfit to hold office and should resign?

  3. I don't accept that both sides have played fast and loose with the rules. Bercow has invented the rules, while using a Jacobean precedent to prevent Mrs May's WAB coming back endlessly - and activist Judges invent law. This judgment of the court in Edinburgh looks to me like judges thinking they are in America. We see in so many ways the Americanisation of our politics - people talk about running not standing for office. That dreadful Tory leadership contest is a good example.
    Of course I do not have a window into Boris's soul and know for sure why he wanted prorogation, but it is obvious that getting rid of Parliament was necessary.

    Richard Crossman admitted in his diary to lying to the House of Commons, which shocked people. Yes a Prime Minister who lies to the House must go.

    That repellent man Sir Keir Starmer (even his Christian name annoys me) when he said Parliament should be meeting day and night over the next few weeks got it exactly the wrong way round. The Government governs and negotiates with foreign countries

  4. Starmer as DPP ruled against bringing prosecutions for illegal abortions.

  5. Lord Sumption, a former supreme court judge and strongly Remain, thought the Scottish judges were "pushing the boundaries out", that the prorogation was "a political issue, not a legal one", and that the case could only be resolved politically. He is obviously right.