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I've started to read The Day After, by Brian Taylor-Cohen
and I've come across this passage, which struck me because it seems so spectacularly wrong-headed.
The whole point about having a ceremonial head of state -- the King of England or the President of Germany -- is that they have all the powers you don't want the head of government to have. The monarch is above the law -- King Charles can't be prosecuted in his own courts -- but he rules with the consent of parliament, which means his ministers are bound by the laws passed by parliament when acting on his behalf, and can't advise him to act in ways contrary to the law.
Boris Johnson's experience when, in 2019, he attempted to advise the Queen to prorogue (suspend) parliament for 5 weeks, from early September to October 14, ostensibly to provide time for the government to prepare the Queen's speech, outlining its legislative programme for the new session, but in fact, or so the government's critics claimed, to shut down parliamentary debate for five of the eight weeks before the forthcoming Brexit exit date.
Proceedings were brought in both the English and Scottish courts seeking a judicial review of of Johnson's advice to the Queen. The English divisional court declined to intervene, on the grounds it was a political decision, for which there were no legal standards, so the courts should not intervene. The Scottish courts, however, took the view that the PM could advise the Queen to use her powers only for a proper constitutional purpose (to give the government time to prepare her speech, which normally takes about a week), and not to prevent parliament from performing its normal constitutional functions.
Because of the disagreement between the two courts, the case went quickly to the Supreme Court, who found that the long prorogation had an exceptionally exceptionally damaging constitutional effect for which no reasonable justification had been provided, and was therefore unreasonable and thus unlawful.
Significantly, no reasonable justification had been provided because no one, from Boris Johnson downwards, could be found who was prepared to put their name to a witness statement verified by a statement of truth about the reasons for the long prorogation, which would have put them at risk of prosecution for contempt of court if it was later found to contain deliberate falsehoods.
This, it seems to me, is in complete contrast with the current position in the US, where the Supreme Court has held that the President enjoys immunity from prosecution for acts carried out in his official capacity. Johnson was certainly acting in his official capacity when he advised the Queen to prorogue parliament, and he would also clearly have been acting in his official capacity had he put his name to a witness statement giving an account of his reasons for so doing. This did not protect his advice from judicial review, and neither would it have protected him had he knowingly made a false witness statement about it.
Similarly, staying with Boris Johnson, the whole reason he had to resign was that he had lost the confidence of his own government following the Commons Privileges Committee's report into its investigation of various lies he'd told parliament in replies to parliamentary questions about the legality of activities in Downing Street under Covid regulations.
It's maybe worth remembering that the last British prime minister who came to power after winning a general election and then left office after losing one was Edward Heath, more than 50 years ago, who came to power though his party's victory in the 1970 general election and left office following his party's defeat in the February 1974 elections.
The Day After: How to Wield Power in a Post-Trump World – A Progressive Political Playbook on Saving Democracy from the #1 New York Times Bestselling Author of Shameless: Amazon.co.uk: Cohen, Brian Tyler: 9780063495104: Books
Buy The Day After: How to Wield Power in a Post-Trump World – A Progressive Political Playbook on Saving Democracy from the #1 New York Times Bestselling Author of Shameless by Cohen, Brian Tyler (ISBN: 9780063495104) from Amazon's Book Store. Everyday low prices and free delivery on eligible...
www.amazon.co.uk
and I've come across this passage, which struck me because it seems so spectacularly wrong-headed.
People are probably tired of hearing about why I prefer parliamentary democracies to presidential republics, but the multiple mistakes in this short passage serve to demonstrate some of what I consider the benefits of the former system.
The whole point about having a ceremonial head of state -- the King of England or the President of Germany -- is that they have all the powers you don't want the head of government to have. The monarch is above the law -- King Charles can't be prosecuted in his own courts -- but he rules with the consent of parliament, which means his ministers are bound by the laws passed by parliament when acting on his behalf, and can't advise him to act in ways contrary to the law.
Boris Johnson's experience when, in 2019, he attempted to advise the Queen to prorogue (suspend) parliament for 5 weeks, from early September to October 14, ostensibly to provide time for the government to prepare the Queen's speech, outlining its legislative programme for the new session, but in fact, or so the government's critics claimed, to shut down parliamentary debate for five of the eight weeks before the forthcoming Brexit exit date.
Proceedings were brought in both the English and Scottish courts seeking a judicial review of of Johnson's advice to the Queen. The English divisional court declined to intervene, on the grounds it was a political decision, for which there were no legal standards, so the courts should not intervene. The Scottish courts, however, took the view that the PM could advise the Queen to use her powers only for a proper constitutional purpose (to give the government time to prepare her speech, which normally takes about a week), and not to prevent parliament from performing its normal constitutional functions.
Because of the disagreement between the two courts, the case went quickly to the Supreme Court, who found that the long prorogation had an exceptionally exceptionally damaging constitutional effect for which no reasonable justification had been provided, and was therefore unreasonable and thus unlawful.
Significantly, no reasonable justification had been provided because no one, from Boris Johnson downwards, could be found who was prepared to put their name to a witness statement verified by a statement of truth about the reasons for the long prorogation, which would have put them at risk of prosecution for contempt of court if it was later found to contain deliberate falsehoods.
This, it seems to me, is in complete contrast with the current position in the US, where the Supreme Court has held that the President enjoys immunity from prosecution for acts carried out in his official capacity. Johnson was certainly acting in his official capacity when he advised the Queen to prorogue parliament, and he would also clearly have been acting in his official capacity had he put his name to a witness statement giving an account of his reasons for so doing. This did not protect his advice from judicial review, and neither would it have protected him had he knowingly made a false witness statement about it.
Similarly, staying with Boris Johnson, the whole reason he had to resign was that he had lost the confidence of his own government following the Commons Privileges Committee's report into its investigation of various lies he'd told parliament in replies to parliamentary questions about the legality of activities in Downing Street under Covid regulations.
It's maybe worth remembering that the last British prime minister who came to power after winning a general election and then left office after losing one was Edward Heath, more than 50 years ago, who came to power though his party's victory in the 1970 general election and left office following his party's defeat in the February 1974 elections.
