Wed Sep 11th, 2019 at 07:12:31 PM EST
Question 1. What exactly is wrong with suggestions that the PM would be breaking the law if he (as he has publicly stated he will) refused to comply with this obligation?
The presumption of innocence is no trivial issue at trial. Questions about a law merely invite interpretation of its meaning, purposes and scope. But Lord Sumption, a "public officer acting as such", abused the "public's trust" in the impartiality of the courts. Volunteering ex parte communication or public comment implicating an actual person in legal controversy is grave error. A finding of law on substance and and circumstances to which one is not a party is another. His suggestions are a meritless yet prejudicial indictment of Johson's duties [EUWA2018] and obligations [LEX]. It admitted facts not in evidence ("...a second letter") and omitted evidence; construed misconduct from hearsay ("Johnson said...") and omits exculpatory speech; and posed speculative testimony as to personal motive ("... then try to neutralise it") excluding "without reasonable excuse or justification" under the law [CPS]. Sumption misstated the case for the first page of a dead letter to the EU Council seeking unconditional approval of parliament's new "exit date".
Question 2. Is the Act itself corrupt and incapable of withstanding scrutiny in the courts?
Strictly speaking, pronouncing EUWA2018 "corrupt," absent competence to assess model policy execution by comparison, is impolitic. Based on the assumption that the title were indicative of its purposes, the legislation obviously failed to realize its objective. While portions with regulatory elements of EU membership affirm maintenance of effort in the TEU, others such as Repeal of the ECA do not. Conversely, the obstacle to fulfillment of parliamentary obligations performed for either "social contract
"--treaty or public law--is section 13
Update [2019-9-14 20:35:4 by Cat]:
Section 13 consumes time "in accordance with its own constitutional requirements" [621/18]. Initially, it provided MPs recursive scheduling for votes on debate and resolutions consenting to severable parts of "the deal" prior to a schedule to vote to ratify all or none. The limiting clause in the script is scheduling to agree a motion to make note of the PM's required proposal "to proceed" or "a way forward" that is to paraphrase any unacceptable negotiation outcome for HoC considerations. Remember the speaker Bercow fondly.
Amid EP elections 13 produced the EUWA2019 series, 1-6, as amended to its body, EUWA2018. Think of this series of bills arranged by MPs as a growing child process named "a bill to block no-deal." In truth the text is an legislative instrument whose sole purpose amounts to management of EU Council contracts with the UK to extended the period under Article 50(3)TEU. The EU Council is in its right--brought into being by parliament's original disagreements--to stipulate the length and term of consideration for which TEU prescribes no precedent or penalty. Official correspondence between the May and Tusk proves construction of the model the Council would expect Johnson to observe. The PM promises ratification of the withdrawal agreement by parliament, given time to manufacture consent. The EU Council grants an extension in consultation or not with purported progress. HoC contract management evolves into an elaborate procedure mill to authenticate "exit date" motions.
Now, the predicate for court scrutiny of a hypothetical controversy is, Who is the aggrieved party? If "to do and not to do a particular thing" is agreeable to MPs and their constituents--Remainers and Leavers--no complaint of breach by parliament's members will rise from EUWA2018. And none has. The courts have quashed legal challenges to the political integrity of parliament. The populus projects scorn on promises made them or agreed by PMs past and present.
Question 3. Does the PM, in your reading, simply have the power to do as he wishes without consequences?
No. Neither does the UK parliament. Johnson assumed an obligation for which he is no better fitted than May or his own successor. That is to maintain a charade of mutual consideration despite parliament's poor performance meeting the Council's minimal expectation. If he is smarter than May he would exit the stage.
William James and Kylie MacLellan, "Boris Johnson tells parliament: You can tie my hands, but I will not delay Brexit". Retrieved 09.10.2019
Adam Forrest 9 September 2019 09:03, "Boris Johnson news - live: PM loses second attempt to trigger early general election". Retrieved 09.10.2019
A former Supreme Court justice has also said it would not be legal for Boris Johnson to apply for a Brexit extension while simultaneously trying to get the EU to reject it in a second letter.
Lord Sumption was asked if it would be legal for the PM to do so. He told BBC Radio 4's Today programme: "No, of course it wouldn't. The Bill, or Act as it's about to become, says that he's got to apply for an extension. Not only has he got to send the letter, he's got to apply for an extension.
"To send the letter and then try to neutralise it seems to me, plainly, a breach of the Act. What you've got to realise is the courts are not very fond of loopholes."
T. May, A letter from Prime Minister Theresa May to European Council President Donald Tusk, 20 Mar. 2pp
meaningful vote(s),"a motion as soon as possible under section 13 of the [European] Withdrawal Act of 2018"
EUROPEAN COUNCIL DECISION taken in agreement with the United Kingdom extending the period under Article 50(3)TEU, 22 Mar
GRANTED "expected the United Kingdom to indicate a way forward before 12 Apr"
T. May, A letter from Prime Minister Theresa May to European Council President Donald Tusk, 5 April. 2pp
EUROPEAN COUNCIL DECISION taken in agreement with the United Kingdom extending the period under Article 50(3)TEU, 11 Apr
GRANTED EP electoral duty, "30 June 2019, with a view to finalising the ratification"
(10)This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. [...] To this effect, the United Kingdom shall facilitate the achievement of the Union's tasks and shall refrain from any measure which could jeopardise the attainment of the Union's objectives, in particular when participating in the decision-making processes of the Union.
GRANTED "as long as necessary and, in any event, no longer than 31 October 2019"
(12)This extension excludes any re-opening of the Withdrawal Agreement. Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. Such an extension cannot be used to start negotiations on the future relationship.
Article 50, TEU
Judgment of the Court (Full Chamber) of 10 December 2018, Case C-621/18
European Union (Withdrawal) Act 2018, as amended from 26.06.2018 to present
ibid. European Union (Withdrawal) Act 2019 including but not limited to authorities to set or agree "exit dates"
ibid. European Union (Withdrawal) (No. 6) Bill (HC Bill 433), including but not limited to Schedule Form of letter from the Prime Minister to the President of the European Council
The Crown Prosecution Service, Misconduct in Public Office, Wilful neglect or misconduct
elements of common law or statutory offenses resulting in real and substantial controversy or injury
Crown-comish-bad-law-reformers' Discussion: "Summary of the problems ". 2016. 155 pp
Reference, legal terms of art
Black's Law Dictionary, contract, general
Wex Dictionary, contract, private parties
Vienna Convention on the Law of Treaties (VCLT), treaty qua contract, state parties
Why US-UK-don't-do-international-law-m'k? Discussion: "Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties". 2007. 34 pp
Black's Law Dictionary, breach of contract; Article 56-58,60 VCLT
justice.gov.uk, evidence, forms and proofs of
The Crown Prosecution Service, hearsay, admissability of
Organization for Security and Co-operation in Europe (OSCE), Basic types of trial objections, to assume facts not in evidence (p 36)