On 27/09/2019 11:00, Dan S. MacAbre wrote:
The Todal wrote:
On 27/09/2019 10:23, Incubus wrote:
On 2019-09-27, The Natural Philosopher wrote:
On 27/09/2019 01:07, The Todal wrote:
when a bench of judges reaches a unanimous decision it can only mean
that the losing party's case is extremely weak.
Bless!
It wasn't so weak that the High Court and the Court of Session threw
it out.
Do explain.
As I've said, repeatedly: the only argument that the Government was
really arguing was that the case was non justiciable. In other words,
no court has the right to judge Boris when he exercises the Royal
Prerogative.
That argument succeeded at first instance. It was left to the Supreme
Court to research the law properly and to explain that - to use Lord
Denning's famous words - be ye ever so high, the law is above you.
Did they research it, or did they create it?* Even after the decision,
I'm seeing claims for both.* Where does one find the objective,
definitive, answer?* Or does their authority make it definitive, with
nothing else needed?
They didn't create any new law. Any claims to the contrary are
misguided, and probably originate from those who are determined to see
the decision as an attempt to influence Brexit.
You have to look at the Supreme Court judgment. See
https://www.supremecourt.uk/cases/do...2-judgment.pdf
31. Secondly, although the courts cannot decide political questions, the
fact that a legal dispute concerns the conduct of politicians, or arises
from a matter of political controversy, has never been sufficient reason
for the courts to refuse to consider it. As the Divisional Court
observed in para 47 of its judgment, almost all important decisions
made by the executive have a political hue to them.
Nevertheless, the courts have exercised a supervisory jurisdiction over
the decisions of the executive for centuries. Many if not most of the
constitutional cases in our legal history have been concerned with
politics in that sense.
32. Two examples will suffice to illustrate the point. The
17thcentury was a period of turmoil over the relationship
between the Stuart kings and Parliament, which culminated in
civil war. That political controversy did not deter the courts
from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an
attempt to alter the law of the land by the use of the Crowns
prerogative powers was unlawful. The court concluded at p 76 that the
King hath no prerogative, but that which the law of the land allows
him, indicating that the limits of prerogative powers were set by law
and were determined by the courts. The later 18thcentury was another
troubled period in our political history, when the Government was
greatly concerned about seditious publications. That did not deter the
courts from holding, in Entick v Carrington(1765) 19 State Tr 1029;
2Wils KB 275, that the Secretary of State could not order searches
of private property without authority conferred by an Act of Parliament
or the common law.
42.The sovereignty of Parliament would, however, be undermined
as the foundational principle of our constitution if the executive
could, through the use of the prerogative, prevent Parliament from
exercising its legislative authority for as long as it pleased. That,
however, would be the position if there was no legal limit upon the
power to prorogue Parliament (subject to a few exceptional circumstances
in which, under statute, Parliament can meet while it stands
prorogued). An unlimited power of prorogation would therefore be
incompatible with the legal principle of Parliamentary sovereignty.