It's never a good idea to get the two confused.

Ultimately this will be a purely political judgement, made by the Establishment taking a view on its own long-term interests.

I can't really find my way through all you say. Except to repeat that you seem in your reasoning to be assuming that someone has been accused of something and a trial is taking place. Neither of these is true. The presumption of innocence is perfectly intact, since no allegedly illegal act has taken place, no prosecution has been brought, and no trial is under way.

Secondly, if we are to follow your understanding of the law, better far be a lying, cheating shitsack who promises to disobey a law, than a retired Supreme Court judge(§) who answers a question about his reading of the text of a Bill. That is, judging by your defence of the one and copious censure of the other.

(§) Let it not be said that I am an admirer of Jonathan Sumption, who from my point of view is just another Eton-n-Oxford reactionary. Since you mention Dickens in another comment, let's have this :

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.

Moar equity !!! ;)

 

Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

That is reading 68 pp Cherry pleading to frauds by government to pervert sovereignty of parliament under EUWA2018--in principle, no evidence of loss or damages.

In Miller, the (rejected) evidence of EUWA2018 offending executive acts for prorogation is "rank bad reasons."

In McCord, review of executive powers at EUWA2018 §10 separates (rejected) evidence of "impugned decision".

So. In the case of the US American version--Commerce v. New York et al. (Jul 2019) under the Administrative Procedures Act--SCOTUS affirmed executive authority and remanded a "contrived" explanation to the lower court for review, which POTUS declined to repair.


Diversity is the key to economic and political evolution.

A prerogative decision may be the subject of a judicial review [citation her omitted] ...Whether the issue is ultimately justiciable will depend upon the subject matter [citation her omitted] ...As a generality, decisions which are made on the basis of legitimate political considerations alone are not justiciable (Shergill v Khaira[2015] AC 359, Lords Neuberger, Sumption and Hodge at para [40];Gibson v Lord Advocate1975 SC 136, Lord Keith at 144). It is not possible to apply to such decisions the public law tests of reasonableness (Council of Civil Service Unions vMinister for the Civil Service: re GCHQ (supra) Lord Diplock at 411), impartiality (McClean v First Secretary of State[2017]EWHC 3174 (Admin),Sales LJ at paras [21] and [22]) or fettering of discretion (R (Sandiford) v Secretary of State for Foreign Affairs[2014] 1 WLR 2697). In this case, if the challenge was based upon these judicial review considerations or similar matters, it would not be justiciable.

Be that as it may or may not, citations of Lord Sumptions opinions or judgments on the matter of royal prerogatives in 2015 (not even precedent) are given to justify claims that Johnson's exercise of prorogation is not judiciable. Which is further reason to note, Sumption should have kept his contradictory "suggestions" shut to the presses rather than spoil current deliberation of presiding "Law Lords" and general "apprehension" (read: fear) of their subscribers.

Diversity is the key to economic and political evolution.

Now comes interpretation from RTE of dramatic claims from unreliable UK interlocutors purporting STYMIED "negotiations" of the PMs in the past 2 years. Having uncritically accepted the supposition--invented by T. May for the delectation of rapid Tories--that "the deal" respecting the PROTOCOL ON IRELAND/NORTHERN IRELAND indefinitely imposes EU regulation on all of UK manufactures and territorial sovereignty ("teh union"), Mr Connelly reconsiders Johnson's denunciation of dissembling Tory "backstop" cant as compared to the actual, legal text of the WA in part.  

Brexit Gamble: Boris Johnson and the Northern Ireland-only backstop, 14 Sep.

"The landing zone is clear to everyone: we need to find a way of ensuring that UK [as a whole] is not locked in the backstop arrangement whilst giving Ireland the assurances it needs."

[EU Commissioner] Hogan suggested the EU could strengthen some of the reassurances already contained in the Withdrawal Agreement.

Article 1 of the Irish Protocol states: "This Protocol is without prejudice to the provisions of the 1998 [Good Friday] Agreement regarding the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people."

Moreover the preamble of the protocol reiterates:

RECALLING that the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union of 8 December 2017 outlines three different scenarios for protecting North-South cooperation and avoiding a hard border, but that this Protocol is based on the third scenario of maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed,

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. ...In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

archived separation of powers
Brexit: Judge rejects parliament shutdown legal challenge
smells like "SCOTUS won't touch it", case or controversy clause

Diversity is the key to economic and political evolution.

38.In  principle, if not always in practice, it  is relatively straightforward  to determine the limits of a statutory power, since the power is defined by the text of the  statute. Since a prerogative power is  not constituted  by any  document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie. Since the power is recognised by the common law, and has to be compatible with common law principles, those principles may illuminate where its boundaries lie. In particular, the boundaries of a prerogative power relating to the operation of Parliament are likely to be illuminated, and indeed determined, by the fundamental principles of our constitutional law.

41.Two fundamental principles of our constitutional law  are relevant to the present case. The  first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply. However, the effect which the courts have given to Parliamentary sovereignty is not  confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of 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 [the Crown in] 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.

Was the advice lawful?

55. Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons -and indeed to the House  of  Lords -for its actions,  remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister's action had the effect of frustrating or preventing the  constitutional role [?] of [the Crown in] Parliament in holding the Government to account.

58.The next question is whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy. Of course, the Government must be accorded a great deal of latitude in making decisions of this nature. We are not concerned with the Prime Minister's motive in doing what he did. We are concerned with whether there was a reason for him to do it. It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks.

That consideration is a bit incoherent as the PM has concluded no other agreement with the EU Council besides T. May's laid 11 March, and sec. 13 provides for approval of a negotiated "outcome" with the EU Council. EUWA-2-2019 , Pt. 2, provides only that by 30 November 2019 the Sec. of State "Report on progress of negotiations on the United Kingdom's relationship with the European Union" in the event the EU Council approves extension to 11.00pm 31 January 2020. Oddly, "The Secretary of State shall make a further report under subsection (1) at least every 28 calendar days starting on 7 February 2020 either until an agreement with the European Union is reached or until otherwise indicated by a resolution of the House of Commons."

60. ... most  tellingly of all, the  memorandum  does not  address the competing merits  of going into recess and prorogation. It wrongly gives  the  impression that  they  are much the same. The Prime Minister's reaction was to describe the September sitting as a "rigmarole". Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the  Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above.

61.It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason  -let alone a good reason- to advise Her Majesty to prorogue Parliament for five weeks, from 9thor 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

62.Mrs Miller asks us to make a declaration that the advice given to Her Majesty was unlawful and we can certainly do that. [...] The essential question is: is [the Crown in] Parliament prorogued or is it not?

"The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the 17th century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that which is recognised by its inclusion in the formulation of article IX.

It is not something upon which the Members of [the Crown in] Parliament can speak or vote. The  Commissioners are not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen's bidding. They have no freedom of speech. This is not the core or essential business of Parliament.

It led to the Order in Council which, being founded on unlawful advice,was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into [the Crown in] Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

70.It follows that [the Crown in] Parliament has not been prorogued and that this court should make declarations to that effect. We have been told by counsel for the Prime Minister that he will "take all necessary steps to comply with the terms of any declaration made by thecourt" and we expect him to do so. However, it appears to us that, as [the Crown in] Parliament is not prorogued, it is for [the Crown in] Parliament to decide what to do next.