22 thoughts on “Meanwhile in the UK…

  1. My guess from watching several hours of the hearing yesterday is that the supreme court will rule against the Borogation. The justices were asking fairly pointed questions. They were not happy that Boris had not made a witness statement. They seemed more engaged with the appellant argument than with the government argument. Of course that could change over the next two days. If they agree with the factual conclusion of the Scottish court of session, that Boris tendered misleading advice to the Queen, I’d think he would have to resign within a matter of days and even the possibility of a royal dismissal could not be excluded.

    If that happens there is then a very complicated situation because since the Remainers were expelled from the Conservatives there has been no party close to a majority in the house of commons.

    I would not pay too much attention to the constant media refrain that the queen is a figurehead without reserve powers. Not too dissimilar constitutional bromides were prominent in the previous constitutional crises in the Commonwealth realms. The governor-general will never dismiss Gough Whitlam etc etc etc.

    The powers and duties of the Crown are identical in Britain and the Commonwealth realms, except where they are varied by local constitution or legislation. Constitutional writing tends to be about the most recent crisis. Canadians write about prorogation. Australians write about dismissals. British constitutional lawyers have not had to deal with the reserve powers in living memory, and are not necessarily very different from the journalists of 1975 in Australia. Professor Anne Twomey’s recent work The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems is, or should be, being read cover to cover by anyone involved.

    • I think a comment of mine may have disappeared into the ether, apologies if this is duplicated.

      I doubt that this will rise to the level of a dismissal, except maybe in the unlikely scenario that the Opposition gets their act together and puts forward someone with majority support and Boris refuses to go. But in the very long living memory of the Palace, there is a history of refusing to answer the phone when PMs may be trying to sack Governors-General they think might use reserve powers during crises.

      • Anne Twomey makes the points that (1) Whitlam was simply wrong when he said there was a convention the governor-general must be dismissed immediately the prime minister tenders advice to that effect (2) no governor-general has ever been dismissed in those circumstances (3) lawyers who have not made a special study of the reserve powers usually have very little knowledge of them and that Kerr, Whitlam and Barwick all made schoolboy howler mistakes in what they claimed were and were not constitutional conventions.

        Kerr’s major misconduct was not the dismissal itself but the magic words that every other governor-general in that situation has used: ‘If you give me that a advice it may be necessary to dismiss you’. Kerr not only gave no warning but had actually negotiated a care package for himself eiyh the opposition leader about diplomatic appointments and a seat in the house of lords. We know about the peerage because Fraser asked the UK prime minister to recommend it and Callaghan refused.

    • The blame or credit for this goes to the Fixed Terms Parliament Act, which has created a situation where there can be a solid majority in the House of Commons against the government’s program, but its not possible to get either a new election or a new government. I was hoping we would get the first royal veto of a piece of legislation in two hundred years out of this, but I will settle for a royal dismissal.

      • The government could easily get a general election if they agreed to a Brexit extension until after the election. The Fixed Term Parliaments Act is not the world’s best constitutional design. In particular it does not have a rule that parliament cannot be prorogued during the period of confidence when an alternative government be formed. It is not, however the cause of this mess.

    • Perhaps I’m missing something here, but what would be the grounds for a royal dismissal if (as appears to be the case at present) Johnson still had the confidence of Parliament, and (unlike Whitlam) didn’t have doubts hanging over his head about his capacity to govern?

      • I see two possibilities.

        Sir Philip Game dismissed Jack Lang as premier of NSW in 1932 for unlawful action. Unlike Kerr, Game warned Lang that persisting in his action would lead to dismissal. Lang and Game actually remained friends after the dismissal. The Queen has long made an art form of ‘Don’t give me advice I may have to reject’, notably with the Australia Acts. Disregarding the European Union (Withdrawal) (No 2) Act 2019 would exactly repeat the legal circumstances of the Lang dismissal.

        Advising a prorogation in identical terms to the current one, after having it declared unlawful by the supreme court, could, as Mark notes, well lead to a dismissal.

        Boris seems to be acting as his own legal adviser and proving that if you represent yourself you have a fool for a client.

      • Sure, but those decisions appear to be in response to the Prime Minister tendering actually relevant advice that the Crown wouldn’t be able to accept. Do you think the Queen would be able to dismiss the Prime Minister on the solitary basis that advice that was made in the past and is no longer relevant (once Parliament is recalled) was misleading?

      • The Lang dismissal was not based on advice tendered to the governor, but on Lang’s refusal to comply with federal legislation.

        At some point the head of state needs to start exercising her responsibilities. If the supreme court rules against Prorogation 1, does the prime minister then get to advise Prorogation 2? And when that is in due course ruled unlawful by the supreme court, does the prime minister get to advise Prorogation 3?

  2. “A government submission to the Supreme Court has told the 11 justices in the prorogation case that if they rule against the prime minister he may just simply take a new decision to immediate close down Parliament again – thereby stopping it from sitting.”

    Now this is something I could envision the Palace refusing, or at least slow walking on. Boris would be in very dangerous waters if he advises, or tries to advise, the Queen to prorogue in the face of a court order invalidating his prior prorogation.

  3. Just watched the end of the UK supreme court hearing. In my experience courts don’t ask quite so many questions of a particular counsel about what relief they should order if they don’t intend to find on favour of that counsel’s application.

  4. This seems be be as good a place as any to share this story of Provincial prorogation in the 1860s…

  5. And here the major issue with having a completely unelected head of state comes into play. Unlike the Italian President in the case of refusing Savona’s appointment as Minister of Finance, the Queen does not have the confidence of knowing she was at least sort-of elected by representatives of the people, nor a written constitution giving her at least vague legal cover for her actions.

    Michaelle Jean in Canada, in somewhat similar circumstances around 2006, consistently granted the government’s prorogation requests. I don’t know if law in other Commonwealth countries is supposed to set a precedent for the Queen in the United Kingdom, but it would seem that she has done what would reasonably be expected.

    I believe the Head of State’s powers and responsibilities in this situation are something that should be much more explicitly set out in law, and that ideally the Head of State would be ratified somehow by a vote of the people or representatives of the people (even if it were just a confirmation referendum).

  6. I had thought that the supreme court would probably rule against the Borogation. I did not expect a unanimous judgment that would reject the advice of the prime minister as unlawful and then also quash the order-in-council for prorogation itself. The judgement almost certainly means a second prorogation would lead to a very brief supreme court hearing, possibly accompanied by contempt proceedings.

      • At the very least I could picture the Queen asking “do you think that’s a good idea?” – which is said to be her way of letting it be known she doesn’t think it would be. Whether the government would get (or for that matter would be willing to get) the subtle message is another matter.

      • And speaking of the Queen, British news media are reporting she “sought advice on sacking Prime Minister.” I don’t think this necessarily means she will do so, but it would seem she wants it to be known that she’s thinking about it. It’s a warning shot from Buckingham Palace to Number 10, but again it remains to be seen whether or not the latter gets the message.

      • Manuel:

        I think the Palace was probably caught off guard by the prorogation and its aftermath. An institution tends to lose awareness of the reserve powers as the number of years since the last exercise of the reserve powers increases. For Britain that is 108 years. For Canada it is 11 years. For Australia it is 44 years. And so on.

        I would think there is some fairly intense reading and research happening in the place right now.

        The media are also saying that the the Johnson government will use the Civil Contingencies Act 2004 to suspend the European Union (Withdrawal) (No 2) Act. Apparently the 2004 parliament remembered nothing about James VII and II.

        I will go out on a limb and say that any attempt to suspend an Act of Parliament has a better than even chance of leading to a royal dismissal.

      • I am only speculating, but I wonder if there has already been a ‘Please don’t give me advice that I would have to reject’ conversation. The government appears to have retreated quite dramatically from rhetoric about applying the Civil Contingencies Act.

  7. I see comments that the UK needs a government of national unity. What would that look like?
    It might reflect the current numbers of MS, but also reflect the results of the recent European election.
    Current MPs:
    Con 288
    DUP 10
    Sinn Fein 7
    The other 336:
    Labour 246 (73%)
    CUK 5 + Ind G 3 + Ind 31 (12%)
    Lib Dem 18 (5%)
    Green 1 (0.3%)
    SNP 35 (10%)
    Plaid Cymru 4 (1.2%)

    European election; (other than Brexit Party and Ukip’s 39.5%):
    Labour 21%
    Lib Dem 31%
    Conservative 14%
    Change UK 5%
    SNP 5%
    Plaid 1.5%
    Greens 19%

    Hybrid proportions, to be used for the Unity Cabinet:
    Labour 47% (no one-party majority)
    Lib Dem 18%
    Independents and Change UK 16%
    Greens 10%
    SNP 8%

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