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Judgment day for Brexit

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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.

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Anne Sacoolas was right to run

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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.

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American justice on trial

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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.

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Boris takes a beating

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AS PROCEEDINGS in the United Kingdom Supreme Court go, it was a rip-snorting judgment. An absolute hammering. A rout. Unanimously, the full court of eleven justices struck down Boris Johnson’s decision to prorogue Parliament. They decided that nothing, including an exercise of the Royal Prerogative, is above the law.

The justices sensibly refused to be drawn into considering whether Boris Johnson might be ‘the Father of Lies’ (see John 8:44), as Aidan O’Neill QC breathlessly argued in last week’s hearing, or indeed any other manifestation of Satan. Boris could fairly argue that lies were almost certainly knocking about the place for some time before either he or the Vote Leave campaign showed up, and that however lax his control either of his language or his zip, he couldn’t possibly be father to them all.

But lies, the justices decided, were irrelevant. Whatever Boris might have thought he was doing by closing the doors of Parliament for five weeks, it had the effect of stymying Parliament. The effect on MPs’ ability to hold the Government to account was ‘extreme’.

Doing that without a good reason is not lawful.

Giving judgment, Baroness Hale wryly explained that considering the Prime Minister’s motivation was impossible, as he hadn’t provided evidence offering the court a good reason, or indeed any reason. If Boris declined to do so out of some looming anxiety that it might involve siring one or two more gorgeous, bouncing little lies, that formed no part of the court’s reasoning.

Whether or not Boris is a liar, his Parliamentary opponents have been just as disingenuous in their attempts to thwart him from carrying out Government policy. Just as divided as the nation when it comes to Brexit, Parliament has fallen back on a strategy of tricks and mischief, intending to inflict the maximum political damage on Boris before an election is ultimately held.

MPs have three times refused to back the only available deal with Brussels, and have now also legislated three times to stop ‘no deal’. The first go was April’s Cooper-Letwin legislation, successfully compelling Theresa May to seek an Article 50 extension she would have willingly sought anyway.

In August, Parliament inserted a tricks-and-mischief requirement for the Government to report at fortnightly intervals on progress in re-establishing the Northern Ireland executive; the intention being to make it impossible to prorogue Parliament. The Government obviously found a way around that trick, though nobody now quite remembers how.

Undeterred, just before it wasn’t prorogued Parliament enacted trick three; a riff on Cooper-Letwin to the effect that, if no deal is in place by 19 th October, Boris must abase himself before the Euro-panjandrums and humbly request a further extension to Brexit. The opposition hope this will demolish his credibility, reinvigorate Farage’s ghastly gang of frauds and improve Labour’s currently dismal electoral prospects.

This is only a particularly cunning plan if an extension is likely to be forthcoming. As things stand, it’s very hard to see what possible appeal it holds for the EU 27, who are utterly exasperated with the chaos across the channel. Another extension that decides nothing will be refused.

This isn’t a plan for dealing with Brexit. It is a disgrace. It is also playing with fire. If Parliament is reposing all its confidence in getting another extension with nothing to show for it, MPs should be revising that plan with some urgency. The current strategy has not removed the possibility of a no deal exit. Thinking otherwise is foolish complacency.

On Wednesday, when the Parliament that was never prorogued ‘resumed’ at the command of the Speaker, the Government’s frustration boiled over.

The Attorney-General, Sir Geoffrey Cox QC, had every reason to be red-faced given that it was his duff advice –to the effect that the prorogation was legally absolutely fine– Boris followed in proroguing Parliament (to be fair to the Attorney, no two legal commentators
agreed on what the Supreme Court would do, and absolutely no-one predicted an eleven nil pasting).

In the event, when Labour MPs started taking the mickey his face went from its usual Wetherspoons mauve to something troublingly Vesuviuan. Blowing indignation from every fumarole and vent, he blasted a pyroclastic flow of un-Parliamentary invective towards the opposition benches.

Boris went even further, and rather extraordinarily appeared to say that MPs had to do what he wanted in order to guarantee their physical safety.

This charade is doing neither the Government nor the opposition any good. Labour cannot continue running scared of the electorate, and can’t rely on tricks to avoid us crashing out of the EU without a deal. Boris must have his election, and Parliament should legislate for this to be held on the same day as a second referendum. This would either give Brexiters an unassailable mandate, or demonstrate that democracy means allowing voters to change their minds.

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