UGLY scuffles greeted Tuesday morning’s prorogation of Parliament, shutting down debate on Brexit until 14th October. But even as the House of Commons went dark, two legal cases aimed at thwarting the prorogation were travelling in tandem through courts either side of Hadrian’s Wall.
In Scotland, a group of 79 claimants, led by Scottish MP Joanna Cherry QC, sought a ruling that the prorogation was unlawful because it was done (obvs) with the ulterior purpose of preventing Parliament from scrutinising the executive.
The England ’n’ Wales counterpart litigation was started by the Brexiters’ Great Satan, Gina Miller, and supported by interventions from Shami Chakrabarti, the Welsh and Scottish devolved Governments, and Sir John Major.
Proroguing Parliament is a power exercised directly by the Queen, theoretically on advice from the Privy Council but in practice from her Prime Minister. As such, it forms part of the uncodified exercises of executive power known collectively as the Royal Prerogative.
Historically, it was thought that the courts had no role in supervising any exercise of the Royal Prerogative. That presumption was partly overturned in 1985 when the House of Lords ruled that some, but far from all such actions could be subject to judicial review. The determining factor is not whether or not a decision it is an exercise of prerogative power, but its subject matter: does it touch on exclusively political business, particularly matters of ‘high policy’?
Looking at Boris’ decision to prorogue Parliament, the two courts reached opposed conclusions. In Edinburgh’s Inner House of the Court of Session, Lord Drummond Young pushed hard at the legal boundaries of justiciability of exercises of the Royal Prerogative, ruling that the courts can ‘decide whether any power, under the prerogative or otherwise, has been legally exercised’. It was up to the Government to prove they had valid reasons for the prorogation, ‘having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action’.
Having concluded that it could interfere with the decision to prorogue, the court went on to do so. Unambiguously, unanimously, and expressing itself in terms you don’t normally find in dry decisions on constitutional law. The court gave Boris the mother and father of a kicking. This was ‘an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. The purpose of prorogation was ‘to prevent or impede Parliament holding the executive to account…and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference’.
Down in London, a Divisional Court headed by the Lord Chief Justice couldn’t agree less. It strongly disagreed that ‘the jurisprudential stage has now been reached where there is no longer any exercise of common law prerogative powers which is immune from judicial review’. The court rejected Lord Pannick’s submissions (on behalf of Ms Miller) that this prorogation offended against a developing doctrine of Parliamentary sovereignty. It held that there were no legal standards against which Boris’ motives could be judged as improper, that this was all ‘high policy’ anyway, and that the Court had no jurisdiction whatsoever to review the decision.
Of the two courts, the Scottish Inner House is nominally the senior. It ruled that ‘the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect’. The Government did not ask the court to suspend this ruling pending appeal. As a result, Parliament is not and never was prorogued.
Both judgments are now the subject of conjoined appeals to the Supreme Court, which will hear the cases next Tuesday. This didn’t stop Boris in the meantime setting the attack dogs on the out-of-touch, elitist, enemy-of-the-people, bewigged Scottish Remainer gits. The Daily Mail exclusively revealed the disgraceful truth that one of their Lordships likes holidaying in France and that another has a morally contemptible taste for what Hitler would have termed Entartete Musik, namely jazz.
Cabinet Minister Kwasi Kwarteng piped up to have his crack at the beaks. He told the BBC that “many people are saying – I’m not saying this – but, many people are saying that the judges are biased. The judges are getting involved in politics”. He omitted the necessary qualification that the people saying this, many or otherwise, are chumps with a Barbary ape’s understanding of the constitutional position of the judiciary and the importance of the rule of law.
Part of Boris’ motive behind prorogation was, as the Scottish court found, to stymie the executive and avoid scrutiny. But it was more to force Parliament’s hand and to send Jeremy Corbyn charging, trumpeting, into the elephant trap of an early General Election. That part of the plan failed, for now. As things stand, the opposition has Boris boxed in. He can’t get a majority for an election, and Parliament lacks the courage and unity of purpose to do anything meaningful to stop Brexit.
Labour’s Parliamentary party is as divided as ever between an enormous Remain majority on one side, and the Lenin-capped loon and his grisly leadership team on the other. For them the EU is a bosses’ club designed to prevent the sort of Real Socialism that worked so well in the DDR, Venezuela etc. etc. Corbyn would not be even slightly disappointed if his prevarication on Brexit forced the UK off the no-deal cliff; he would blame the ensuing chaos on the Tories and stand a good chance of winning an election off the back of it.
If the Supreme Court sides with the Scots on Tuesday, what practical effect might that have? What is the purpose of Parliament sitting at all if MPs have nothing useful to do?
Parliament exists to legislate, not to block the executive. With a minority Government in office but not power, an election this Autumn is a virtual certainty, whether before or after 31st October. It is far from certain that this alone will persuade the EU 27 to grant the Article 50 extension Parliament has ordered Boris to seek, because If Boris wins a decent majority, Brexit, on whatever terms, will happen.
The current chicanery in Parliament is making no deal more, not less likely. There is a clear Remain majority in Parliament. They should use that majority to stop Brexit, rather than playing party political games aimed at damaging the Prime Minister’s credibility with Leave voters. If the Supreme Court allows Gina Miller’s appeal, MPs who oppose Brexit should defy both Boris and Corbyn, and move swiftly to legislate for a confirmatory referendum. Otherwise, trusting the voters means letting Boris have his election, now.
The empty ditch
By Matthew Paul
Thoughts and prayers for any Brexiters who wake up today from a coma, to find that we are still members of the European Union.
Once the news has sunk in, fans of the Prime Minister may regret our continued entrapment, but can console themselves with a miracle. The ditch is empty! He is not here; he is risen!
The PM’s resurrection contrasts with the final, stake-secured interment of the zombie Parliament. Voters won’t be sorry to see it go. However cynical the Boris/ Dom strategy of Brexity bluster and braggadocio, the opposition’s decision to block not only Boris’s Brexit,but any alternative to Brexit and also an election was not engaging public enthusiasm.
The opposition’s strategy of destroying Brexiters’ trust in Boris failed signally. When that became apparent, it was the LibDems and SNP who pulled the ripcord first. While Labour languish with poll ratings that would mildly embarrass ChangeUK, or indeed a putative Baby Eating Party, the Liberals and Scots Nats have got their tails up and are looking forward to a good scrap. If blocking Brexit didn’t banjax Boris, there was no reason for them to go on propping up Labour at their own expense.
His allies having thus ratted on the no-election pact, Jeremy Corbyn couldn’t keep running from the electorate. Pausing only for a pointless little squabble about the exact date –9 th or 12 th December– a large majority of MPs on Tuesday passed a one-line bill to circumvent the
Fixed Term Parliaments Act, to the effect that the Act would be ignored and an election would take place anyway.
Ignoring the law usually gets politicians into trouble with Baroness Hale, but this subversion of the FTPA is a useful reminder to people who complain that we are now ruled by the Supreme Court that in fact Parliament –as distinct from the executive– can actually do pretty much whatever it wants, and to Brexiters that this is what Parliamentary sovereignty is, and we already have it.
Unlike the SNP, Plaid Cymru were one of the tiny, surly minority to vote against holding a new election; partly in the forlorn hope that they might yet somehow leverage a second referendum, partly out of the troubled suspicion that Ben Lake could be for the chop in Ceredigion and their Brexity target seats in the valleys look hard for a Remain party to win in a Brexit election.
As Plaid recognise, all elections are fraught with risk. Labour will kid themselves that 2017’s great reversal of fortune can be replicated, brushing aside the minor qualification that they still lost that one, despite the worst Conservative campaign since Iain Duncan Smith asked
“are you thinking what we’re thinking?” and Britain answered “no.”
A repetition of 2017 is unlikely to happen. Theresa May was an unhappy and unwilling campaigner. The ‘strong and stable’ message was repetitive, banal and an insult to voters’ intelligence. Boris loves campaigning and it is what he and Evil Dom are best at. May had no particular reason, except her party’s calculated advantage, to go to the country. Boris has to deal with a country that has become ungovernable and a Parliament that has usurped the prerogative of the executive. May saw a few bouncy looking polls and got greedy. Boris has taken a necessary, unavoidable gamble. The electorate will show him more sympathy as a result.
The day after the election starting gun was fired, the Conservatives were polling 40%, with a clear 10% lead over Labour, who in turn had pulled a little back from the LibDems. A lead of 40% to 30% would win either main party a majority in any general election that has yet been held.
Even if the reality of an imminent choice and the prospect of five years of Boris pulls some on the left back to Labour, that party’s desertion by Remainers appalled at Corbyn’s prevarication over Brexit will split the centre-left vote and lead to Tory gains by default. The centre-right vote doesn’t look set to fragment in the same way. The entire ‘dead in a ditch’ strategy was designed to beat down Brexit Party support to the point where it looks unviable as a party of national opposition to the Tories.
In this, it appears to have prevailed. Even the toughest nuts and fruitiest fruitcakes in the Brexit Party are starting dimly to see the logic in not blocking Boris. Nigel Farage is in headlong retreat from his original intention to field one of his frightful waxworks in every constituency in mainland Britain, and is now contemplating dragging what he can from the fire by selectively targeting twenty or thirty gammon-red Labour-facing seats ‘oop North instead.
This election will be all about Brexit. Unfortunately for Remainers, as a proxy ‘People’s Vote’, it is hopelessly rigged against Remain. Corbyn will offer a second referendum, but if Corbyn were exclusively offering motherhood, apple pie and Christmas, moderate voters would still recoil in disgust. Jo Swinson is splendid, but however much damage she inflicts on Labour, she still won’t be Prime Minister. Many centre-right Remainers will hold their noses and (unless their Conservative candidate is Mark Francois or some similar golem) vote Tory.
As current polling stands, the Conservatives can aspire to a majority of around 60 seats. This would be enough to comfortably pass the Withdrawal Agreement Bill and move on to the next stages of Brexit, in which Brexiters –learning that there is no such thing as an easy trade deal with the USA, and that we will probably have to keep following all those foreign laws too– ask the nurse to give them something to send them back to sleep.
Anne Sacoolas was right to run
THE CIA is good at making people disappear from one place and pop up in
another, even if the other place is, in normal circumstances, some kind
of unnamed black prison on Diego Garcia.
This special set of skills came in handy recently, when a 43-year-old woman named Anne Sacoolas had the misfortune to knock down and kill a motorcyclist on a country road near Brackley.
On 27th August, Mrs Sacoolas was leaving RAF Croughton in Northamptonshire, the base where her husband – who we can fairly safely assume works for the CIA – was stationed.
Coming past the guardhouse, she turned right onto the B4031 and drove off down the road. About twenty seconds later, a motorbike appeared from around a sharp bend and ploughed straight into the front of her car. The 19-year- old rider, petrol station attendant Harry Dunn, was flung over the top of the Volvo. It is regrettably very easy to kill a biker with a Volvo, and Harry Dunn died shortly afterwards by the roadside.
This kind of tragedy would be bad enough for Harry’s family in any circumstances. What made it worse is that Mrs Sacoolas, who at that point had been in the UK for three weeks, had turned out of the base onto the wrong side of the road, and driven for around 400 yards without noticing. It was only when Harry’s bike came round the corner – far too late for either of them to take evasive action– that she will have become aware of her deadly mistake.
Northamptonshire Police spoke to Mrs Sacoolas, who explained the circumstances, admitted liability and told officers that her husband’s job at RAF Croughton conferred diplomatic status on the family, under a 1994 agreement between the US and UK Governments. She also confirmed that no, she had no plans to leave the country any time soon.
Those plans soon changed. When the police contacted the US Embassy to request a waiver of Anne Sacoolas’ diplomatic immunity, so that she could be questioned and if necessary prosecuted, they were told she had already been spirited out of the country. And no, there would be no waiver in any event.
You don’t have to be one of Harry Dunn’s grieving family to feel the unfairness of this. It is an abuse of diplomatic immunity, which is designed to protect the diplomatic system by preventing the politically-motivated harassment of diplomats, rather than the individual interests of any member of diplomatic staff who happens to commit a serious offence.
But Anne Sacoolas is sensible not to return. If she does, she will probably be sent, pointlessly, to gaol. Sentencing guidelines for the offence of causing death by careless driving (which charge the police have indicated she faces) would indicate a starting point of 36 weeks imprisonment in her case. The CIA made the right call in getting her well away from one of the most conspicuously unfair laws to disgrace the statute book.
The offence was enacted in 2006 after a campaign in The Sun complaining that ‘killer drivers’ were getting off more or less scot-free, with some derisory fine for careless driving. The law was changed, so it is now a specific offence to cause someone’s death if at the time your driving fell ‘below the standard of a careful and competent driver’. The penalty for ‘death by careless’ is up to five years in prison.
Around half of all adults in the UK drive a car. The training necessary to pass a driving test is rudimentary. When 33.6 million people each take control of two tons of metal moving at twenty-five metres per second, mistakes will happen and accidents are inevitable. Every driver reading this will have made some error behind the wheel.
There is no moral difference between a trivial driving error that passes off without anyone noticing, and one which by pure chance results in someone’s death. ‘Killer drivers’ can be anyone making a minor error whose luck is worse than yours. If Anne Sacoolas’s son, who was sitting next to her in the car, had immediately said “Mom, you’re on the wrong side of the road!” they might have laughed about it later. Instead, whether or not she ever faces a British court, this event will haunt them both for the rest of their lives.
It is easy to understand how a bereaved relative may want the closure of seeing the other party to a fatal accident locked up, but the law operates on facts, not feelings. We should punish people for doing things they know to be wrong, or for deliberately taking unnecessary risks, not for making mistakes. Sending people like Anne Sacoolas who have accidents to prison doesn’t deter anyone else from having an accident.
Harry’s family –whose composure and dignity in all this has been astonishing– have campaigned valiantly to secure Mrs Sacoolas’s return to the UK to face the music, but their campaign seems certain to fail. On Wednesday, President Trump made the helpful observation that the accident was, broadly speaking, the fault of the Limeys and their stupid roads: “That can happen…I won’t say it ever happened to me, but it did. When you get used to driving on our system and you’re all of a sudden on the other system, where you’re driving, it happens.”
America’s decision to abuse diplomatic immunity to protect its citizen from UK law demonstrates three things. First, the astonishing hypocrisy of the US State Department, which in 1997 was swift to (successfully) request a waiver of immunity in the case of a Georgian Charge d’ Affaires who ploughed into a row of cars in Washington and killed a teenage girl.
Second, that the offence of ‘death by careless’ is unfair and should be repealed.
Finally, whatever the empty talk of a special relationship, it flags up the massive imbalance of power between the UK and the US, and not only in matters of extradition. Whoever ends up negotiating the second easiest trade deal in history should remember what happens, every time American and British interests cross.
American justice on trial
AMBER Guyger, a Police officer in Dallas, returned home on 6th September last year from a thirteen and a half-hour shift.
Parking her car in the apartment block’s multi-storey car park, she walked to her apartment. She found the door ajar. Pushing it open, she drew her gun and walked inside. She saw a large man standing in the hall. Guyger shouted for him to show his hands.
Instead of complying, the man advanced towards her in a fast-paced walk, shouting ‘hey, hey!’ Fearing for her safety, she shot him twice in the chest, with fatal result.
So far, so normal in the American way of dealing with burglars. Guyger reacted instinctively, albeit with the heavy trigger finger that is common to homeowners, law enforcement officers and mardy, unpopular teenagers in the USA.
In America, being shot dead for intruding in someone else’s home usually attracts scant sympathy. The justice system operates a so-called ‘castle law’; your home is your castle and there is little or no requirement for a homeowner to consider what force is reasonable in dealing with a home invader. Few cases where burglars are shot dead ever end up before a jury.
Amber Guyger’s did, because of the important distinction that her victim, a chartered accountant named Botham Jean, wasn’t, in fact, the intruder; Guyger was. Distracted after her long shift, she had driven up to the fourth floor of the car park instead of the third and walked straight into Dean’s home instead of her own. Evidence at her trial showed that the apartments’ layout was confusing; most residents on the third and fourth floors of the block had at some time made the same mistake.
It seems that Guyger recognised almost immediately that she had made a terrible error. She then, discreditably, was moved more to protect her position than to save Dean’s life. Administering some perfunctory CPR with one hand, she texted her partner with the other. “I’m f****d.”
She was. The Dallas Police Department disembarrassed themselves of Guyger’s services, and she was indicted for manslaughter. The charge was subsequently amended to one of murder. On Tuesday, a jury – ten out of twelve of whom were non-white – returned a guilty verdict.
Guyger is today starting a ten-year sentence for her crime.
This factual matrix was not in dispute in the trial. Guyger testified that – however mistakenly – she thought that she was under a real threat of death or serious injury. She acted instinctively in using lethal force and thought she had that right.
The prosecution argued that she should never have drawn her gun. Alongside the pistol in her utility belt, she had both a Taser and pepper spray. She was criticised for failing to radio for back-up.
These points may have had some weight, but do seem to be applying a different standard to Guyger than would be expected of any other American homeowner. Maybe the prosecution also thought they didn’t create much of a case by themselves, because they also set about fairly comprehensive character assassination.
The jury saw text messages and social media posts, purporting to demonstrate a dismissive attitude towards black people, a robust/ sick sense of humour around the use of guns, and – how this was admissible evidence isn’t altogether clear, but looks a bit like Foxy Knoxy’s treatment by prosecutors in Perugia – that she was having an affair with a married man and felt ‘super horny’ earlier on the day in question. By British standards, Amber Guyger did not have an entirely fair trial.
The US justice system jails more people than any other jurisdiction in the free world, and you are particularly likely to be jailed if you are black.
The American courts have demonstrated horrendous unfairness to black defendants and victims. Memories of the 1992 case of Rodney King are still vivid; the assault on an innocent black motorist by LAPD officers that triggered the LA riots was satirised by Spitting Image’s sketch, where an all-hooded jury of Klansmen watch CCTV footage of King’s beating in reverse, while a hooded prosecutor explains ‘you can see the officers helping the n****r to his feet’.
It is less usual for white defendants to be on the receiving end of politically tainted verdicts, and depressing to see the jury’s verdict in Amber Guyger’s case described by campaigners as ‘a victory for black people in America’. It is nothing of the sort. A justice system in which politics matters more than evidence is a victory for no-one.
Botham Dean’s family displayed more dignity. Their grief is natural and unsurprising. What is truly astonishing is that they showed little bitterness towards Guyger and put the Christian virtue of forgiveness conspicuously and painfully into practice. Dean’s brother hugged Amber Guyger and told her she was forgiven.
The Judge, too, descended from the Bench to hug Guyger. She handed the convicted defendant a bible and told her she didn’t want to send her to prison. The ten-year jail term imposed was notably lenient for an offence of murder, in a way that is known to practitioners in British Magistrates’ Courts as ‘giving the benefit of the doubt on the sentence’.
Lenient or not, Amber Guyger should not be in prison for murder. She seems to have been sacrificed to expiate the guilt of the whole American system of justice.
Her instinctive use of lethal force inside what she thought was her home has been judged as a proxy for American officers’ excessive use of lethal force against black suspects. In America’s heavily politicised courts, justice itself has been put on trial and found wanting.