The Mudcat Café TM
Thread #166609   Message #4010829
Posted By: Iains
27-Sep-19 - 02:46 PM
Thread Name: BS: Brexit 'Take Back Control' D Cummings
Subject: RE: BS: Brexit 'Take Back Control' D Cummings
Interesting extract from the Supreme Court ruling:
In paragraph 34, the Supreme Court states that its ‘proper function’ under our constitution is to give effect to the separation of powers (which justifies court intervention in relation to prorogation). Then, in what appears to be an innocuous sentence in paragraph 55, it says that it is to be “remember[ed] always that the actual task of governing is for the executive and not for Parliament or the courts.”
In paragraph 46 it says:

    “Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain, and defend its actions, and citizens are protected from the arbitrary exercise of executive power.”
The Benn Act then arguably destroys the very principle of parliamentary accountability, which the Supreme Court cited as a cornerstone of the British constitution.

If the Benn Act is unconstitutional, the next question to ask is whether the Court has the ability to rule that it violates constitutional norms and provide a legal remedy.
The way is now open for Boris Johnson to refuse to comply with the Benn Act on the legitimate ground that the Act is unconstitutional and that the courts (and ultimately the Supreme Court) will agree; and even if the Court won’t go so far as declaring it an actual nullity, then at least they will refuse to enforce it.

The Law of unintended consequences kicking in early?