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Twisted Pair 2 – UK

Oct 022019
 
 October 2, 2019  Posted by at 1:23 pm Primers Tagged with: , , , , , , , , , , , ,  8 Responses »


Salvador Dali Bather 1924

 

The US and UK are both at risk of severe legal challenges and hence “barrelling down towards great troubles” as I wrote yesterday in Twisted Pair 1 – US. The reasons are not exactly the same in both cases, but they’re close. It’s about who holds the ultimate power.

Before moving on to the UK’s specific issues, I want to share this from the BBC, one of many pieces yesterday that discuss President Trump talking to foreign leaders, and that all accuse him in one way or another of wanting to ‘dig up dirt’ about Joe Biden (something that could just as well be defined as trying to find out how Russiagate started).

This one is about Trump asking Australia for help because obviously there’s a strong connection to the country in the person of former Australia High Commissioner to the UK Alexander Downer, who claims Trump ‘aid’ George Papadopoulos told him in May 2016 that Moscow had dirt on Hillary Clinton. Papadopoulos has always denied saying it.

But it appears the world media have made it their task to vilify Trump’s efforts to investigate Russiagate, so expect much more of it. The article for instance also mentions Bill Barr talking to Italian and British intelligence. Yeah, they’re serious about wanting to find out what happened. I’d suggest you get used to that. But here’s what I want to share:

[..] while the Ukraine call is linked to the serious issue of potential influencing of an upcoming US election, the Australian one refers to events around a past election. White House spokesman Hogan Gidley suggested this was uncontroversial. “I’m old enough to remember when Democrats actually wanted to find out what happened in the 2016 election,” he said.

I thought that was pretty good. But on to Albion, where the legal mess is likely much bigger than in the States, because its laws are so opaque. Sure, NOW people are clamoring for a written constitution, but NOW is a tad late. I read the other day in a Dutch paper that Queen Elizabeth had asked her advisors if she could sack Boris Johnson, and couldn’t find coverage of it in any UK paper. Still can’t. Isn’t that curious? We’ll have to do with yesterday’s New York Post: “It was the first time in her 67-year reign that the Queen asked for clarification on how to dismiss a British prime minister, the report claimed.”

The Queen didn’t actually look to fire Johnson, she simply didn’t know the laws surrounding the topic, she wanted to know what her legal position is. And that seems to typify the entire situation unfolding in the country. Nobody has any idea who has the -ultimate- power to execute any far-reaching policies and decisions. That would appear to be a very dangerous conundrum, because it may allow the loudest, -physically- strongest and perhaps even most deceitful to prevail.

There was someone in a recent Automatic Earth comments section who listed all 11 UK Supreme Court judges and concluded they were all “Remainers”. That is a slippery slope too many. Because if you intend to disqualify the highest court in a country, you invite in anarchy. Now, you may favor “Leave”, but that kind of thing will surely come back to bite you in the face.

Besides, the Supreme Court decision to declare Boris Johnson’s prorogation of Parliament unlawful was the only one a highest court could possibly have made. Because Britain, like so many other western nations, is a parliamentary democracy. The only thing I’ve seen that looks like a constitution there says in eight words that parliament is senior to the monarch. That means it is senior to the executive branch as well. It has to.

 

Whereas a Scottish court ruled a few weeks ago that the prorogation decision was justiciable, and declared it unlawful, a lower UK court said it was non-justiciable, that is was up to Parliament, and that Parliament could “sit” whenever it wanted. But Parliament hasd just been prorogued, and therefore could NOT sit whenever it wanted. That lower court even contradicted itself: “Parliament is the master of its own proceedings. It is for parliament to decide when it sits. Parliament can sit before and after prorogation..”

So they have to make up their minds. It would be demonstrably silly if the Queen could fire the Prime Minister. It would be much less silly if Parliament could do it, though. Which would also be less silly than the Prime Minister being allowed to shut down Parliament with impunity in a parliamentary democracy. You have to look at the legal implications.

Now, the world is increasingly divvied up in antagonistic (i.e. twisted) pairs. In the US, if you don’t hammer Trump ten times a day and twice on Sundays, you get accused of effectively supporting him. In the UK, if you question Boris Johnson’s quest towards Halloween Brexit, you’re against ‘the people’, and their will. And that’s why we have laws. It’s just that British laws are terribly vague, and that’s why the courts became involved (as I predicted they would for a long time).

Today, Boris Johnson is sending a ‘plan’ to Europe that he has labeled ‘take it or leave it’. Which leads many to question his desire to reach a deal at all. More importantly, the European Union (Withdrawal) (No 2) Act 2019, aka the Benn Act, was passed by parliament last month and requires the government to ask for an extension until 31 January 2020 if no deal is agreed.

Boris has suggested he will ignore it. But that would mean the executive branch is effectively senior to the legislative branch. It would also mean the end of the parliamentary democracy that Britain has been for what is it, 400 years?! I have no horse in this fight or dog in this race, but that to me looks extremely dangerous. Be careful what you wish for.

 

The UK Supreme Court is in for the by far busiest time of its existence. And by the way, you can criticize the court, but only really by criticizing the way the judges on it are appointed, and then take action to change that way. If you try to question its credibility, however, you destroy the credibility of the entire judicial system, all of it.

Again, be careful what you wish for. It’s not hard to understand why and how people point to the 2016 Brexit referendum to justify a Brexit strategy, but they too will still have to follow the rules and laws, or they will create mayhem. That goes for both sides, of course, but for Boris Johnson to try and take the UK out of the EU in violation of the Benn Act would unleash a lot of disorder that he and his people may not fully comprehend yet

And there’s something else going on in the UK that I wrote about recently in “The Will of the People”, but which still doesn’t generate much interest. That is, this whole issue is no longer about Leave vs Remain, there is a third group, Leave But With A Deal. Ironically, the Leave side seeks to group these people in with the Remainers, which is both not honest and may not serve their own interests.

That is because Leave But With A Deal may well be the largest group out there. There are Tories and Labour supporters in it, plus independents and some LibDems, and they’re there for the taking for Boris. Only, they insist on a deal with the EU being in place. If there’s no such deal on October 19, they automatically become Boris’s opponents. But why would he let them? Why not get a serious deal on the table?

Johnson will attempt to blame the failure of his latest proposal, plus all previous ones, on the EU. But has Brussels been all that unreasonable in the negotiations? I’m no EU fan, but it’s an honest question. They have one large issue: Ireland. The Good Friday agreement is sacred for them, because it is for Ireland. And Boris today allegedly proposing some kind of border infrastructure regardless will not fly.

 

A difficult topic, for sure, but then we’re 3,5 years on from the referendum, and what has the UK done since then? London gives the impression that peace in Ireland is less important for them than it is for Brussels, and that is not wise. As former Northern Ireland negotiator Jonathan Powell said in a video I posted earlier today, what will happen is easy to predict:

Even if you just put in a camera on the border, the dissident Republicans will shoot at it. Then you put in police to protect the camera, they’ll shoot at the police. Next up is the army to protect the police, and so on and so forth. Perhaps a unified Ireland is a solution, though that will take time, but a hard Brexit certainly is not. But Boris appears to play games with this, suggesting there will have to be customs facilities some way or another: “Each of the IRA campaigns started as a border campaign”, says Powell.

Summarized, we have this third group, not Leave or Remain but Leave But With A Deal, and they are being ignored and/or labeled Remain. Whereas they could be key to Johnson and his supporters’ desire to Leave. Look, Boris has no majority in Parliament anymore, not even if the DUP he apparently sucked up to vote with him. He needs something else but is running out of time.

Then again, Boris has pledged to Leave by Halloween. Now his personal credibility is at stake, and it’s become more important than the credibility of his party, of Parliament and even of the entire court system. Next up: the Queen. Who didn’t want to sack him but was royally miffed about him advising her to prorogate which put her in a very not amused position when her own Supreme Court declared her decision unlawful.

It would appear to be in Johnson’s own interest, if he wants to carry through Brexit, for him and his team to do a lot more homework. He’s already mightily miffed the Queen, the Supreme Court has accused him of attempting to push through an unlawful act, and he’s lost his party’s majority in Parliament.

Boris’s support may seem solid in his own party conference in Manchester today, but let’s hope he doesn’t get even more blinded by that than he already is, because the consequences could well be catastrophic. And of course I see, and understand, all the people who want the result of the referendum honored, but there’s a whole new ball game underway today, and it would be foolish to ignore that.

You can still go for Brexit, but Good Friday is a giant and unnecessary leap too far to achieve it. As is trying to make the executive branch claim seniority over the legislative one, or the Supreme Court, to achieve your goal. You can wish, but beware.

 

 

 

 

Incontinent Mendacity

Sep 042019
 
 September 4, 2019  Posted by at 1:38 pm Primers Tagged with: , , , , , , , , , , , , ,  13 Responses »


Salvador Dali Neo-Cubist Academy (Composition with Three Figures) 1926

 

No, I’m still not taking sides in the Brexit proceedings. I have no horse in that fight. As I’ve said 1000 times, I can fully imagine that a country might want to leave the trappings of the EU. But just as often I’ve said that the way the Tories have gone about leaving appears deeply flawed. They have never seemed to take serious the amount of effort required for a smooth exit.

And after being an EU member for 40+ years, that effort could only be gigantic. But not one moment during Theresa May’s ‘reign’, let alone under Boris, have I gotten the impression that the UK is ready. They’ve spent their time fighting amongst each other about the shape and form Brexit should take, but neglected the practical implications of changing 1000s of rules and regulations and treaties and laws.

And sure, maybe a lot of work was done in secret, can’t very well do nothing at all, but none of that would matter very much; you need to show that you’re ready, not merely suggest it. And from what I can gather from the latest numbers I’ve seen, expectations are still that 50-60% of trucks (lorries) will not have the required paperwork once the UK leaves.

This may yet be brought down to 40% or even 30%, but that would still be highly disruptive. And it appears unnecessary. Three years should have been sufficient to accomplish much more and much better. Predictions of 48-hour waiting times for trucks are all over, and for an economy built on just-in-time delivery that won’t do.

But oh well, it may already be water under the bridge. Boris Johnson lost bigly yesterday in a vote over control of the Commons and chances are he’ll lose biglier in today’s vote over a no-deal Brexit bill. Unless he (or actually Dominic Cummings) plays 4-D chess and has seen it all coming from miles away.

I can see Johnson setting things up to get the election he wanted, but I have a harder time seeing why he would want Jeremy Corbyn to have the power to halt that election unless the Commons today vote down any and all odds of a no-deal. But then I’ll be the first to admit I’m not yet a grandmaster in 4-D chess.

Dominic Cummings would have to be, though, to pull this one off. Did he expect 21 Tories to side against ‘their own’ Boris? If they had voted with him, the result would have been 322-307 in favor of Boris. Did they know they wouldn’t get it? Do they know they won’t get it today either? An additional extension to January 31 2020 is also part of the whole package. Will Cummings still be around by then?

 

 

Sterling is surging as I write this, And I really must wonder why. Don’t think that’s due to my 4-D skills either. Jeremy Corbyn made it very clear last night that Labour won’t support snap elections (and without them Boris won’t have the 2/3 majority he needs) unless no-deal is off the table for real. Is the pound surging because Boris is plummeting, and Corbyn now calls the shots? Does that make sense? Man, it already hurts in 3-D…

Still, I started writing this, really, because of the title. Couldn’t let that one get away. It’s something used to describe Boris Johnson in a court case in Scotland yesterday by lawyer Aidan O’Neill QC, speaking for a group of 75 MPs and peers who brought the case (against prorogation of Parliament). Love the details here: Aidan O’Neill is a “double silk”, being Queen’s Counsel at both the Scottish and English Bars.

And love the term, obviously, especially since it’s not used in a tabloid, but in a courtroom. By a double silk, no less. In the end, it’s all about the theater. Still, what came to light was not merely a little detail.

Johnson Decided To Suspend Parliament ‘Two Weeks Before Asking Queen’

Boris Johnson had secretly decided to suspend parliament nearly two weeks before asking the Queen, according to memos from Downing Street read out in court. The court in Edinburgh heard the first memo was written by Nikki da Costa, the prime minister’s senior legal adviser, on 15 August and spelled out the plan to suspend parliament in the week beginning 9 September. Her memo was circulated to a very small circle of key figures in Downing Street, including Mark Sedwill, the cabinet secretary, Ed Lister, the prime minister’s chief of staff, and Dominic Cummings, Johnson’s controversial chief adviser.


In public Johnson was then refusing to confirm he planned to do so but he ticked the secret memo and said “yes”, before sending Da Costa a handwritten note the following day, where he criticised the convention where MPs return for several weeks of Commons business after the summer holidays before breaking again for conference season. He told Da Costa the “whole September session [at Westminster] is a rigmarole introduced to show the public that MPs are earning their crust. I don’t see anything especially shocking about this prorogation.”.

 

It appears very clear what was ‘shocking‘, and if it had not been shocking there would have been no reason to keep it secret. C’mon, at least try.

 

[..] The documents, revealed in heavily redacted form for the first time at 10.55pm on Monday, were sent to the legal team acting for 75 MPs and peers who are challenging prorogation in the court of session in Edinburgh. Aidan O’Neill QC, acting for the MPs and peers, said he only received an unredacted version of the documents on Tuesday morning.


He told Lord Doherty, the judge hearing the case, this proved Johnson was plotting to suspend parliament at the same time that his government’s lawyers had told the court in Edinburgh the question of prorogation was “hypothetical and academic” because no such decision had been taken. The UK government had also refused to give the court any sworn affidavits setting out why prorogation was necessary and the prime minister had ignored O’Neill’s suggestion last week that he should provide one to the court.

 

Yeah, well, that’s the ‘shocking’ thing: doing one thing in secret and saying the opposite in public.

Accusing Johnson of “incontinent mendacity, O’Neill said the prime minister had shown an unwillingness to acknowledge and speak the truth. He said: “He has chosen not to be accountable to this court and seeks not to be accountable to parliament.” David Johnston QC, acting for the UK government, apologised to the court for failing to produce the papers until the night before the hearing and admitted the government had breached the deadline for submitting them.


He said they were being produced in the spirit of transparency, to allow the court to understand the process behind the decision to seek prorogation. Reading from a brief prepared by the government, Johnston insisted the legal action was academic because MPs were still being given time to sit and vote before exit day on 31 October, and set their own agenda. “We are not dealing with an executive which is out of control,” he said.

It is very obvious what Boris et al were trying to do and they can call it the Will of the People all they want, but the Will of the People is not, and should not be, secret. Here’s a bit more of what Mr. Double Silk had to say about Boris in Edinburgh, via the Press Association:

 

Mr O’Neill described Mr Johnson as having a record that was “characterised by incontinent mendacity, an unwillingness or inability to speak the truth”. He pointed to the documents as showing the suspension of parliament policy was being considered much earlier than announced and argued the court had been misled. Mr O’Neill said: “This court was told nothing of that and was told in fact that this judicial review is academic, hypothetical and premature.


“That is not true. This court and these petitioners were being actively misled.” He argued the real reason to suspend parliament was to allow a no-deal Brexit to take place by removing proper scrutiny. Mr O’Neill also said Mr Johnson was trying to govern as an “autocracy” using “one-man rule” by these attempts. He added: “Why were these specific dates chosen? It’s because they think they’re gaming the system.”

 

Meanwhile, the Edinburgh court has rejected the case against prorogation, which was probably expected. British law, especially because the country has no constitution, is pretty opaque.

 

The court of session in Edinburgh has rejected an attempt to prevent Boris Johnson’s prorogation of the House of Commons. Lord Doherty, the judge who heard the case, said the decision could not be measured against legal standards as it was matter of high policy and political judgment, and was therefore for politicians to settle. “In my opinion, there has been no contravention of the rule of law. Parliament is the master of its own proceedings. It is for parliament to decide when it sits. Parliament can sit before and after prorogation,” he said.

He told the court it was for parliament, and ultimately the electorate, to hold the government accountable for such political decisions. The case was initiated by the campaigning barrister Jolyon Maugham QC alongside a cross-party group of 75 MPs and peers, including the SNP’s Joanna Cherry. After the ruling Maugham tweeted: “The idea that if the PM suspends parliament the court can’t get involved looses some ugly demons. If he can do it for 34 days, why not 34 weeks, or 34 months? Where does this political power end?

“It’s not the law as I understand it. Yesterday’s hearing was always going to be a bit of a pre-season friendly. We’re now focused on the inner house, hopefully later this week, and then the supreme court on 17 September.”

“Parliament is the master of its own proceedings. It is for parliament to decide when it sits. Parliament can sit before and after prorogation..” There appears to be a contradiction in terms here, which is exactly why the case was brought. On the one hand, the judge says Parliament decides to sit when it wants, on the other he acknowledges it can’t sit when a PM decides to pro-rogue it.

That’s the entire case right there. The PM decides when Parliament sits, not Parliament itself. It’s obvious why a judge wouldn’t want to interfere -hot potato-, just like -and because- it’s far from obvious that (s)he can. Ergo: the PM rules the UK. Not Parliament. Parliament is decoration. Amusing at times, but then decoration might as well be, since it’s the only function it has.

I’m done, One last thing. I was reading back some things from last week and happenstanced on this Boris quote: “We asked the people to vote on whether they wanted to stay in or leave the EU; they voted to leave by a big majority.”.

The vote was 51.89%. Makes you wonder how he would define a small majority. But you know, I’m good. To see Boris accused of incontinent mendacity made my day. And I don’t even have anything against him. It’s all just theater. The entire British political system is (and do throw in the Queen, as hard as you can). Just theater, that much is obvious now, if it wasn’t already.

And all these MPs are pretending they didn’t already know. Hello! You’re on the Truman Show!