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Westlake Legal Group > Posts tagged "Supreme Court"

Richard Ekins: How the Supreme Court has empowered Gerry Adams to sue the Government – and seek damages

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford

Just over a fortnight ago, the Supreme Court allowed Gerry Adams’s appeal against his convictions in 1975 for escaping from lawful custody, ruling that he had not been lawfully detained at all. As today’s Mail on Sunday reports, this ruling opens the door for Adams, and for others, to bring proceedings against the Government for compensation for false imprisonment. It also poses a very serious challenge to the ordinary functioning of government.

Adams did not appeal against conviction in 1975. But he was granted leave to appeal out of time in 2017. The rationale for his appeal was that he had discovered, in 2009, that a legal advisor to the Attorney General had expressed doubts at the time of his prosecution about whether his detention was lawful.

This should not have been a reason for an appeal out of time. Nothing in the documents changed the law or facts relevant to the 1975 convictions. Adams could have challenged the lawfulness of his custody during his trial and/or by way of an appeal at the time.

However, leave to appeal having been granted, it fell to the Court of Appeal of Northern Ireland, and then the Supreme Court, to consider its merits.

Like others detained without trial from November 1972, Adams was subject to an interim custody order (ICO). The ICO authorised temporary detention, for up to 28 days or until a Commissioner, usually a former judge, determined whether he was likely involved in terrorism and whether his continuing detention was necessary to protect the public. In his appeal, Adams challenged the ICO made in his case.

In November 1972, Her Majesty in Council made the Detention of Terrorist (Northern Ireland) Order. Article 4(1) authorised the Secretary of State to make an ICO when it appeared to him that the person in question was involved in terrorism in some way.

Article 4(2) said that an ICO of the Secretary of State should be signed by a Secretary of State, Minister of State or Under Secretary of State. The question on appeal was whether the Secretary of State had personally to consider each ICO, or whether his power could be exercised by a Minister of State or Under Secretary of State.

The Court of Appeal rejected the appeal, relying heavily on the Carltona principle. This principle, which takes its name from an important judgment in 1943, provides that when Parliament confers power on a Secretary of State, the power may be lawfully exercised by those for whom he has responsibility. Thus, officials routinely act in the name of the Secretary of State, whose personal involvement in each and every decision is not required by our law or constitution.

Lord Kerr, giving judgment for a unanimous Supreme Court, allowed the appeal, casting doubt on whether there truly is a presumption that Parliament intends the Carltona principle to apply, and reasoning that the structure and language of Article 4 made clear that Parliament intended to require the Secretary of State’s personal involvement in each ICO.

In a new paper published today for Policy Exchange’s Judicial Power Project, Sir Stephen Laws and I argue that the Supreme Court’s decision was badly mistaken. Lord Kerr’s interpretation of the 1972 Order relies on discounting the Carltona principle. But that principle is fundamental to how our government operates. It informs legislating in all contexts and, while the legislator may choose to qualify or disapply the principle, there are established techniques for so doing.

The foundation of Lord Kerr’s judgment is his assertion that it cannot but have been deliberate for Parliament to distinguish making the order (Article 4(1)) from signing the order (Article 4(2)), the point of which was to require the Secretary of State’s personal involvement.

But this cannot be right. The obvious point of the structure of Article 4 was to limit and to specify the application of the Carltona principle, not to require the Secretary of State to decide every case himself, but to require someone of high standing and responsibility, including a Minister of State and Under Secretary of State, to make the order, which is made by signing the order.

The Supreme Court seems to have misunderstood how government works. Writing in support of our paper, Geoffrey Cox, the former Attorney General, notes that in his experience in government it is not the case that a Minister of State would understand himself simply to sign an order, as if his role was passively to bear witness to a decision made by another.

Likewise, Lord Butler of Brockwell, former Cabinet Secretary, confirms that the significance of the Carltona principle to our system of government and agrees that the Court’s interpretation of the 1972 Order is implausible.

The case against the Supreme Court’s interpretation is very strong. Lord Kerr does not note that the 1972 Order was made by Her Majesty in Council, such that the Order’s meaning and effect turns on the government’s legislative intentions, which were made clear in the debates in Parliament about whether to approve the Order (it came into force on 7 November 1972 but would have lapsed without parliamentary approval in December that year).

In that debate, the Attorney General said clearly that the Minister of State may make an ICO; the Minister of State for Northern Ireland confirmed that he had himself already exercised this responsibility. The Supreme Court wrongly fails to consider or address this parliamentary material.

So the Supreme Court has ruled that Adams was not lawfully detained. This is an important propaganda victory for critics of the record of Her Majesty’s Government in endeavouring to maintain peace and order in Northern Ireland. It opens the door for Adams and others to seek compensation for false imprisonment or breach of the ECHR right to liberty. The Government may have to pay considerable sums to those detained for suspected involvement in terrorism.

This is not a good state of affairs. The Government should act swiftly, proposing legislation to make clear that ICOs made by a Minister of State or Under Secretary of State were lawful. This would reverse the effect of the Supreme Court’s judgment, but would not remove from Adams any order that he won from the Court itself.

Ideally, the government would announce an intention to legislate before Adams begins further legal proceedings. Otherwise, that legislation will be misrepresented as an improper interference with ongoing legal proceedings. Parliamentarians should press the government to act. Lord Butler is pursuing the matter in the Lords, and one hopes he will be joined by others who are concerned about Mr Adams’s victory.

The prospect of having to pay Adams and others is not a happy one. But more worrying still are the judgment’s implications for how (or whether) government works. By putting in doubt the Carltona principle’s centrality to legislating, the Supreme Court has invited litigation to challenge a range of government actions. This will inevitably lead to caution on the part of Whitehall and to frustration of effective government. Unless the Supreme Court can correct its error in the very near future, which seems improbable, there must be urgent legislation to enable government to work.

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The behaviours of the civil service

At one level, the tale of Philip Rutman’s resignation is just another story of the falling-out of a politician and a civil servant.

It is scarcely unique – especially at the Home Office.  Consider the departure from it, during Theresa May’s term as Home Secretary, of Helen Ghosh.

But Sir Philip’s departure is about much, much more than two people who couldn’t get on, or a row about delivery, or even a rift about policy.

At its heart is a culture clash between Boris Johnson’s Government, set on changing the direction of the country post-Brexit – and now backed by a majority of 80 in the Commons…

…And a civil service that is profoundly unhappy, at least at the top, not only with the way in which the journey is being carried out, but with where it is going.

That said, there are some more humdrum points to make at the start.  Not the least of them being that ConservativeHome is in no place to judge Sir Philip’s claims about Priti Patel.  But we note the following.

First, the Home Office seems still to be “unfit for purpose”, to quote the words first used about it by John Reid after his own appointment to head the department.

He was following Charles Clarke, who himself had been forced to resign.  As have no fewer than three of the last ten Home Secretaries.

The department has been hit by a succession of scandals – not least the Windrush affair, which forced Amber Rudd to quit only two years ago after she “inadvertently misled” the Home Affairs Select Committe over it.

A report into the affair concluded that she has been let down by her officials.  Sir Philip was Permanent Secretary at the department at the time.

Second, Sir Philip complains that he has been “the target of a vicious and orchestrated briefing campaign” against him.

Perhaps – but the first shots in this battle were fired on his behalf – in the Sunday Times on February 20, which reported that Sir Philip’s relationship with Patel became toxic during an election row about tasers.

Finally, it is difficult to believe that Mark Sedwill’s predecessor, Jeremy Heywood, would not have found a way of smoothing-over the rupture.

It isn’t hard to see how this would have been done.  Sir Philip would have been quietly “moved on”, perhaps duly to be translated into Lord Rutnam, and Patel’s card would surreptitiously have been marked.

(For reference, Ghosh went on to first to be Director-General of the National Trust for Places of Historic Interest or Natural Beauty, and thence to Balliol College, of which she is now Master.)

But Sedwill isn’t Heywood.  The latter was from the heart of the system: a Treasury man to his fingertips – once Principal Private Secretary to three Chancellors of the Exchequer, no less.

Sedwill is essentially a former diplomat – at one point Britain’s Ambassador to Afghanistan; later National Security Adviser, a post he still holds.

Indeed, he is the first man both to serve in that post while also being Cabinet Secretary and Head of the Civil Service – a triple accumulation of power.

But for all that, he doesn’t have Heywood’s experience in negotiating the concealed mirrors, trapdoors, and false bookcases of Whitehall.

“The Cabinet Office offered me a financial settlement that would have avoided this outcome,” Rutnam said yesterday.  That he is now suing the Government is a failure of the system over which Sedwill presides.

Furthermore, the lack of grip has been evident for the nine days that has passed since that original Times report.  We urged that this nettle be seized on February 22.  Instead, the fumbling continued.

Sir Philip must now explain why today he complains of the Home Secretary’s “behaviours” while, less than a week ago, he joined her to dismiss these and other claims about her as “false”.

“I hope that my stand may help in maintaining the quality of government in our country”, he said yesterday.  Which returns us to the culture clash at the core of the matter.

As we’ve put it before, the civil service is impartial but not neutral.  This is how it must be.  It must not choose between parties but it must select between values, as we all do.

Post-war, these have included: liberal democracy; NATO; the mixed economy; nuclear deterrence and, not least, EU membership.

We like to cite three names by way of example.  Michael Quinlan, a theoretician of nuclear deterrence; Charles Farr, a security policy-driver and Michael Palliser, early in the long line of euro-enthusiasts at the Foreign Office.

Or take a look at Twitter – where Nicholas Macpherson, the former Treasury Permanent Secretary, likes the hashtag #soundmoney.  And Simon Fraser, a counterpart at the Foreign Office, is critical of the Brexit project.

The long and short of it is that Boris Johnson’s Vote Leave Downing Street sees leaving the EU as the start and not the end of national renewal.

In its view, we are not taking back control from the European Court of Justice only to see it accumulate in the European Court of Human Rights.

The Conservative Manifesto commits to ensuring that judicial review “is not abused to conduct politics by another means or to create needless delays”.

The Constitution, Democracy and Rights Commission that it proposes will also scrutinise the functioning of the Royal Prerogative.  Number Ten has not forgotten the Supreme Court’s progation judgement.

All this is a further offence, coming as it does on top of Brexit, to the worldview of what ConHome used to call Britain’s pro-EU ascendancy.

The Sir Humphreys know well that their system is propped up by this scaffolding of modern governance, and appreciate that recasting it is integral to Dominic Cummings’ aspirations of civil service reform.

We will find out during the next few weeks what policy issues, if any, helped to drive Sir Philip’s resignation and decision to sue.

Or implementation issues: on the one hand, Downing Street wants its new immigration system delivered as soon as possible – to help demonstrate to voters that “the People’s Government” will deliver.

On the other, the Home Office and parts of the civil service elsewhere will be resistant to the sheer pace of change, arguing that it is impracticable.

That beaten and battered Ascendancy will see in Sir Philip a standard to rally round.  He complained of Patel’s “behaviours”. It will hope for more of the same – more challenges; more resignations.

It will be claimed that Sir Philip was “speaking truth to power”.  But who truly holds power in Britain?  Is it the people we put into office?  Or is it those that never leave government at all?

Is it politicians who we can put in and later throw out?  Or is it the specially-trained caste who, at their best, are selfless public servants but who, at the system’s worst, are too seldom held accountable for their mistakes?

We are going to find out – at least if the Prime Minister sees through the logic of what he has started, and applies himself to unleashing Britain’s potential.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Edward Faulks: The Supreme Court’s prorogation judgement unbalanced our constitution. The Commons should make a correction.

Lord Faulks is a former Minister of State at the Justice Department.

The Brexit conversation may have moved onto the next stage. But the fallout from the Supreme Court’s judgment on prorogation in 2019 has left our constitution in a state of disarray.

The Conservative Party Manifesto and the Queen’s Speech make clear that the Government is serious about examining the changing constitution and restoring its balance if need be. The Supreme Court’s judgment and its wider implications are likely to be relevant to this exercise.

Distinguished legal commentators have taken different views about the Court’s decision to quash the September 2019 prorogation. Some have hailed the judgment as an historic vindication of parliamentary democracy against a rapacious, unbound executive, whereas others have decried it as an improper extension of judicial power into the heart of politics.

And some have split the difference, or at least changed their minds. Jonathan Sumption, remarkably, argued before the Supreme Court judgment that intervention would be legally improper and yet welcomed the “revolutionary” judgment that followed, apparently on the grounds that the Government was made up of fanatics (or had been acting like fanatics) and deserved a good kicking.

Policy Exchange’s Judicial Power Project has been in the vanguard of the debate, publishing a series of incisive short comments for and against the judgment, convening a high-level discussion (with Lord Sumption amongst others, which John Bald wrote about on this site) about the judgment and its implications, and contributing to the inquiry by the Public Administration and Constitutional Affairs Committee, an inquiry cut short by the general election. (One hopes that the Committee, under the leadership of its new Chair, William Wragg, will choose to revive and complete the inquiry.)

Policy Exchange also published two substantial papers taking the Supreme Court’s reasoning to task, one by Martin Loughlin of the LSE and the other by John Finnis of Oxford University. And in a new paper published by Policy Exchange today, Professor Finnis has produced what to my mind is the final word on the subject.

Why does it all matter? After all, when the Supreme Court ruled that the purported prorogation was unlawful, Parliament returned for a short period during which not very much, if anything, was achieved. And then we had a general election.

But the result of the ruling is that principled limits on the justiciability of the prerogative power to prorogue, including limits firmly imposed by Article 9 of the Bill of Rights 1689, have been set aside.

In other words, judges can now decide whether they are satisfied with the reasons (if any) the Government provides for its decision to prorogue Parliament. For many lawyers and commentators, this is an assertion of judicial power that cannot be justified by constitutional law or principle. That was also the view of the distinguished judges of the Divisional Court whose judgement was reversed by the Supreme Court without engagement with their reasoning. The decision to prorogue Parliament, however questionable it might have been, was the exercise of a clear prerogative power, the merits of which are the stuff of politics not law.

So the novelty of the Supreme Court’s judgment should not be overlooked. In his masterful new paper, which complements and completes his earlier critique, Professor Finnis explains with care just how far the Supreme Court’s judgment distorts the law of our constitution. One implication of his analysis is that the Attorney General had good reason to maintain, in the face of heated criticism in the Commons and elsewhere, that his advice that prorogation was lawful had been correct.

In the common law, how a judgment is received by lawyers often determines its relevance to the future of the law. This is doubly so in relation to a judgment that has provoked such strikingly different reactions on the part of legal commentators. Professor Finnis makes clear just how badly the Supreme Court mishandled the law of our constitution which it was duty-bound to apply and thus the damage it has done to the integrity of the UK’s political constitution. Unless his analysis can be answered, which I very much doubt, lawyers and judges should look back on the Supreme Court’s ruling as an historic mistake, a needless constitutional panic.

Unless and until the judgment is reversed by the Supreme Court or Parliament, it exposes decisions about prorogation – and by analogy decisions to seek a dissolution of Parliament or to form a government – to challenge in the courts. This may be good news for lawyers, and for those who want a second bite at the political cherry, but it constitutes a significant, unjustified constitutional shift.

What can the Government do? It can hope that the decision will simply be a one-off, and that later courts will decline to follow the judgment further. That might prove to be wishful thinking. Or it can invite Parliament to legislate to settle authoritatively the non-justiciability of the prerogative power to prorogue Parliament and perhaps also to impose further limits on the scope of that power. While they are at it, Parliament might want to legislate to protect other, related prerogative powers.

Legislation of this kind may be the only way to limit the courts’ incursion into political territory. It will almost certainly be misrepresented as some kind of “revenge” attack on the courts. Indeed, this charge has been made in anticipation of possible reform. Parliament has a constitutional responsibility to consider restoring the long-settled law of our constitution, including Article Nine of the Bill of Rights 1689, and if or when it chooses to act it will not be exacting revenge on the Supreme Court.

Indeed, it is more than a little odd to denounce legislation that would vindicate the powerful judgment of the Divisional Court – made up of the Lord Chief Justice of England and Wales, the Master of the Rolls and the President of the Queen’s Bench Division – as a populist attack on the rule of law.

Repeal of the Fixed-term Parliaments Act 2011 (a manifesto commitment) may provide an opportunity to act. (In another recent Policy Exchange paper, Stephen Laws explores further the opportunity repeal and replacement of the 2011 Act provides in this regard.)

Alternatively, the Government may choose to wait until it has the views of the Commission on the Constitution, Rights & Democracy, the remit of which appears certain to include an examination of the relationship between the legislature, the executive and the courts. For members of the commission, as for Parliamentarians in both Houses, Professor Finnis’s analysis of the Supreme Court’s missteps should be required reading.

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Reform of the Supreme Court will fail without reform in Parliament

If like me you have over the last few years picked up something of an addiction to constitutional drama, the outrage which has greeted Boris Johnson’s intentions to reform the Supreme Court is quite entertaining.

The online public law establishment is trying to run two hopelessly contradictory arguments against proposals to re-establish something resembling the old Judicial Committee of the House of Lords.

On the one hand, they argue that it is utterly pointless. After all, the de jure remit of the new Supreme Court didn’t change. It is ‘the same people, upholding the same law, in a new building’. Yet rather than following that logic and treating this dispute as a low-stakes contest over aesthetics, they are simultaneously getting rather worked up at the prospect of change.

For some, this might be because they think that aesthetics are actually extremely important. Remember Lady Hale’s blunt admission that the case for abolishing the Law Lords was that: “it was recognised that, however well this arrangement had worked in practice, it could not be justified in principle.” Others, especially the sort of reformer who believes in the importance of a ‘modern’ House of Commons, may quietly recognise that the setting in which institutions operate will, over time, affect how they operate.

Yet the Government risks making a similar mistake if it allows itself to believe that the solution to the the undesired evolution of the Supreme Court lies entirely in the form of the court itself.

Apologists for the judiciary are not wrong to point out that over the past few decades judges have been, at least in part, responding to signals sent out by parliamentarians. Tony Blair’s governments, in particular, changed the way that Parliament legislated in a way that made a larger role for the courts almost inevitable.

Firstly, and most obviously, they did this by introducing legislation such as the Human Rights Act and the Equality Act, which set into law broad principles which it is then left to the courts to apply in practice. Recent rows over whether veganism, or belief in biological essentialism when it comes to questions of sex and gender, highlight the sort of essentially philosophical questions coming before today’s judges.

But it was also Blair who oversaw swingeing reforms to the way the Commons operated, particularly by substantially cutting the sitting hours and introducing mechanisms such as programme motions which curtail debate. Anybody wondering what happened to the golden age of parliamentary oration need only tune in to a high-profile debate and see the Speaker cutting contribution times to two minutes to see what happened to it.

For all the talk of making Parliament ‘family friendly’, lots of MPs voted for such changes quite clear-eyed about it being a straightforward hours cut – as Chris Mullin, a Labour MP who fought the rearguard against them, noted in his diaries at the time.

Such a diminution of capacity was less noticeable during Blair’s time because it sat alongside New Labour’s programme to reduce Parliament’s responsibilities, passing powers up to Brussels, down to the devolved legislatures, and out to quangos and the courts. To borrow Peter Franklin’s analogy, all these efforts were in aid of baking the New Labour settlement into the constitution at a level insulated from democratic oversight and contradiction.

For so long as they remain vested with these powers the form of these institutions is not unimportant. But the Prime Minister must grasp that all of them are downstream of Parliament, and the solution to problems with each cannot succeed without compassing changes in how the legislature operates, especially if the goal is to re-establish parliamentary and democratic control.

For the judiciary, for example, any truly effective solution almost certainly involves more detailed and pro-active lawmaking in areas where judicial overreach is a concern. In turn, creating the capacity for that may involve taking steps to reverse the truncation of sitting hours and attendant impediments to proper scrutiny to such a volume of legislation.

The Hale quote above really cuts to the heart of what is, at least on one level, a battle between what is effective and what is ‘modern’. But if a restoration of Parliament’s traditional role is possible, Parliament must be prepared to step back into it. Are MPs prepared to vote themselves more work and longer hours?

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What you may have missed about the Conservative Manifesto 5) Johnson has neither forgiven nor forgotten the Supreme Court

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”

Boris Johnson has said that his favourite film scene is “the multiple retribution killings at the end of the Godfather”.

It is worth bearing that in mind when contemplating the sprawling paragraph above from the Conservative Manifesto.

Its contents are strikingly permissive – giving carte blanche to a Commission, consisting of and to be chaired by a person or persons unknown, to make recommendations on the Commons, the Lords, Westminster, Whitehall, and in particular judicial review and human rights.

On that last point, we hope it gets to grips with the relationship between Parliament and the ECHR. For if reform doesn’t come, a new Conservative Government won’t be able to get properly to grips with the full causes of London Bridge murders – and part of the terror threat.

But above all, what leaps out of this section for us is that the Prime Minister appears to have the Supreme Court and senior judges in his sights.

Johnson will not have forgotten that the Court has ruled twice against the Government – the second time when he was Prime Minister.  That it inadvertedly aided Brexit the first time round may be irrelevant to him.

He will remember Lady Hale, that spider badge – and her swipe at him over “girly swots”.  More pertinently, he will have in mind the court’s constitutionally illterate decision over prorogation.

There are two known policy routes forward if the judiciary is not simply to be left well alone.  One is to scrap the Supreme Court, revive the Law Lords and return to the status quo ante.  The other is to have Parliamentary hearings for senior judges.

Party members tilt strongly towards the first if our surveys are anything to go by.  We suspect that Johnson himself has no fixed view, but believes that Something Must Be Done.

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John Bald: Children are being indoctrinated about the legal system

John Bald is a former Ofsted inspector and has written two books on the history of writing and spelling. He is Chairman of the Conservative Education Society.

Policy Exchange’s panel debate on the Supreme Court’s (SC’s)  prorogation judgment co-incided with the publication of a children’s book,”Judge Brenda and the Supreme Court”, describing the career of its President, Lady Hale, and written with her co-operation. Both had as much to say about educational, as legal, issues.

The main attraction at the panel debate was former Supreme Court Justice, barrister and historian Lord Sumption (Eton and Oxford).  Lord Sumption, a former adviser to Sir Keith Joseph, is a long-standing opponent of judicial expansion.  His conclusion, that the 11-0 prorogation was correct, accepted the SC’s argument that prorogation was not a proceeding in parliament, but an attempt to prevent parliament from proceeding. As Ministers were now responsible to parliament, and the Queen was bound by their advice, to allow this prorogation would leave Ministers responsible to no-one, and so was unacceptable.

Sumption’s clarity, logic and ease of delivery made his six-minute slot sound as if he had all the time in the world. The same could not be said of his co-panellists, QCs John Larkin (Attorney General for Northern Ireland),  Helen Moutfield, ( Matrix Chambers and Mansfield College Oxford), and Patrick Laurence. John Larkin recounted a series of criminal cases during the troubles that had little obvious relevance to prorogation. Helen Mountfield said little more than that the judgment was “of course” correct.  If this seems harsh, check the link above. John Larkin overran his time, but argued that the judgment was likely to lead to legislation by litigation, with cases fast-tracked, putting judges under pressure and leading to exactly the kind of judicial expansion that Policy Exchange’s Judicial Power Project is trying to check.

It is hard to know if this is correct. Lord Sumption thought not, and cited the first paragraph of the judgment.  The 11-0 result, indicating the assent of some justices who are known to be opposed to judicial expansion, suggests he may be right, and that the underlying axis of the Human Rights Act and expansionist justices is a separate issue. Helen Moutfield is certainly an authority on the issue, as editor of Blackstone on the HRA and a senior member of Matrix, whose activities, I suggested, are the main thrust of judicial expansion and not conducive to the public good.

Lord Sumption also said that there was no difference between the procedures of the SC and those of the House of Lords Judicial Committee which preceded it, “except for its £26m budget.”  There lies the rub, and “Judge Brenda”  illustrates it to perfection. The SC and the HRA are a radical attempt to establish the judiciary as the senior partner in the legislative process, and this book, distributed free to all children in Derbyshire by the Legal Action Group, of which Lady Hale is a long-term supporter, is another step in this direction. Lady Hale makes decisions, writes new law, and is pictured socking a male judge on the jaw, albeit under a statement that disagreements between judges “are not the same as having a fight.”

The Mail described the book as “something out of the Soviet Union”, though it’s hard to see Lady Hale presiding over a gulag. The outsize spider brooch she wore while delivering her judgment, and her appearance at the Girls School Association, had an element of gloating, but most of us would gloat if we’d just won 11-0, and I’m happy to join her in standing up for swots, as I’m a bit of a swot myself. Wearing her Doctor’s bonnet with the judicial robes is another matter – if the court has no headgear for judges, that should apply to her too, and she is pictured without it on the team photograph at the end of the book.

Lady Hale encourages children to work as hard as they can at school, and the book’s author, Afua Hirsch, tones down the feminist angle in the interactions between children – girls are not always perfect, and “Class 3 boys” – from a visiting school party – “are on our side.” Still, the idea that the judges “decide our laws”, with no mention of parliament, and the presentation of the President as a person of infinite benevolence, goes beyond the favourable presentation we can expect in an authorised biography, and into the realm of propaganda.

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Expedited illegal alien removal heading to SCOTUS

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Earlier this year, the Trump administration made another change to immigration policy wherein migrants who cross the border to make an asylum claim could be sent back to wait in Mexico more quickly under an expedited review process. The usual list of suspects immediately challenged it in court and, predictably, the Ninth Circuit sided with them, claiming that the policy violated their constitutional rights. On Friday, the Supreme Court agreed to hear the appeal and render a final decision. (USA Today)

One of President Donald Trump’s many efforts to crack down on asylum-seekers at the border is headed to the Supreme Court.

The justices agreed Friday to consider the administration’s effort to speed the removal of thousands of migrants without allowing them federal court hearings.

A federal appeals court in California ruled earlier this year that efforts to remove asylum-seekers under “expedited review” procedures violated their constitutional rights. The Justice Department argues that extending the streamlined process could add years of court wrangling.

We’ll get to the prospects for this case in a moment, but first I wanted to take a look at the type of coverage this case is once again receiving in the mainstream press. The USA Today reporter depicts this policy the way we hear it portrayed on cable news and in the nation’s larger newspapers on a regular basis.

First of all, saying that we’re “cracking down on asylum-seekers” is intentionally disingenuous. People who apply for asylum from their home country or even show up at an approved border crossing to submit a claim are still handled in the usual fashion. There may be unfortunately long delays because of the massive backlog in our courts, but their case will be head without penalty.

What this policy is primarily doing is dealing with people who cross the border illegally and then, when apprehended, immediately try to make an asylum claim. That’s not how the system is supposed to work.

The reporter goes on to state that the applicants are being removed more quickly without a federal court hearing. They’re still going to get a hearing, albeit an “expedited” one. And after they return to wait in Mexico, a normal court hearing date will be scheduled. But I suppose it doesn’t sound as good for your target audience when it’s described accurately.

As to the White House’s prospects in this one, that’s tough to say. The current Supreme Court justices have been rather hit and miss on immigration issues, though Trump has won several victories. Earlier this year the court agreed to uphold the policy where migrants would wait in Mexico for their court dates. But in 2018, a stricter policy that would flatly deny asylum to anyone crossing the border illegally was shot down.

This case seems far more similar to the former than the latter. The policy in question doesn’t seek to flatly and preemptively deny asylum to an entire class of people. It simply seeks to ease some of the congestion in our detention facilities and ease the backlog in the courts. With that in mind, I wouldn’t be at all surprised to see the Ninth Circuit be overturned yet again and hand the Trump administration another win.

The post Expedited illegal alien removal heading to SCOTUS appeared first on Hot Air.

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Leftist Group is DEMANDING That Democrats Name Who They Would Appoint To Supreme Court

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The Left wants a list of who POTUS candidates would put in this building. 

Imitation is the sincerest form of flattery, even if it involves progressives copying Donald Trump.

Ripping a page right out of Donald Trump’s election playbook from 2016, the group Demand Justice has called for all the Democrats running for President declare publicly who that would nominate out of the handy dandy list they provided.

How convenient and very copy cat-ish of Trump 3 years ago.

According to The Washington Post

Democratic presidential contenders are coming under increased pressure from their base to take a page from Donald Trump’s 2016 playbook and release a shortlist of potential Supreme Court nominees — one part of a larger strategy from party activists to make the courts a central issue in the 2020 race.

Demand Justice, a group founded to counteract the conservative wing’s decades-long advantage over liberals in judicial fights, will release a list of 32 suggested Supreme Court nominees for any future Democratic president as they ramp up their push for the 2020 contenders to do the same.

The slate of potential high court picks includes current and former members of Congress, top litigators battling the Trump administration’s initiatives in court, professors at the nation’s top law schools and public defenders. Eight are sitting judges. They have established track records in liberal causes that Demand Justice hopes will energize the liberal base.

Seems like the progressives have FINALLY learned the lesson of paying some attention to the third branch of the government.

Now you can go ahead and take a look at that list and if you are like me, be absolutely puzzled by who all those people are. Lucky for us commoners, Carrie Severino from the Judicial Crisis Network just yesterday wrote a piece over at National Review called Demand Justice’s SCOTUS List Is Too Extreme Even for Obama that helps give us an idea of the backgrounds of these folks.

From the article…

Demand Justice’s list has 32 names on it. Only four of those are Obama-nominated judges. Shockingly, only eight have any judicial experience at all! While President Trump’s list of Supreme Court nominees currently includes 24 individuals, of whom 23 are experienced federal or state judges, the extremists at Demand Justice have clearly taken a different tack. Their list — which they are lobbying Democratic candidates to adopt — is wholly consumed by far-left activism and identity politics.

They see the courts as their ticket to implementing their radical policy agenda, which includes gutting the First and Second Amendments, establishing a right to illegal immigration and abortion on demand straight through birth, and destroying our economy by imposing burdensome regulations on everyone from Main Street to Wall Street.

When I first read this I thought, well maybe the Obama nominated judges that were confirmed don’t have enough seasoning yet. Then further on reading, I find out that 24 of them don’t have ANY JUDICIAL EXPERIENCE at all.

Did no one pay attention during the Harriet Miers fiasco under Bush 43?

So the left has put together a list of people that they want on the court that the vast majority have ZERO experience on the bench. They are straight-up activists. I actually admire Demand Justice brazen truthfulness here in trying to push this on the Dems.

Severino commented on twitter about how the candidates when finally asked ran from the subject and tried to change the subject like it was the plague.

What this tells me is that the left is organizing to do the same thing conservatives have done but the candidates are not focused on this at the stage of the game they are currently in. This might change after a nominee is picked but for now, it looks like they are more interested in impeachment than who they would put onto the court.

That works for me.

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The Lewis Carroll Queen’s Speech

“Alice looked round her in great surprise. ‘Why, I do believe we’ve been under this tree the whole time! Everything’s just as it was!’”

We have a Speaker who makes up the rules to suit himself – and thwart Brexit.  A real Prime Minister, Oliver Letwin, who seizes control of the Order Paper when it suits him, but is not questioned at the despatch box, nor subject to any accountability mechanism.  A Bill with major constitutional implications – the Benn Act – rammed through Parliament in a few days.  A Supreme Court that believes Parliament to be synonymous with the legislature.  And MPs who are unwilling to submit themselves to the verdict of the people.

Given this Lewis Carroll-like Westminster, we should not be at all surprised by a Queen’s Speech with Bills that almost certainly will never be considered and not become law – at least, not this side of a general election.

Which is what we have today, and in a sense those sympathetic to the Government and Boris Johnson should not complain.  The 22 Bills that the Queen will describe today with have the upside of publicity without the downside, from Ministers’ point of view, of scrutiny – a little of which for them goes a very long away indeed.

A Government can stay in office for a very long time without much of a majority at all.  Harold Wilson won a majority of only three in 1974.  Nonetheless, his administration lasted the best part of five years.  But what governments in such a position cannot do is pass much legislation of any real significance.  There are currently 288 MPs in receipt of the Conservative whip.  Add ten DUP ones and you have 298 votes at the Government’s disposal.  That is not the basis for passing very much at all.

Consider, for example, the sensible and overdue plan to ensure that those who cast votes can actually prove who they are.  (Hats off to Peter Golds for hammering away at this issue on ConservativeHome.)

And credit too to Eric Pickles for his 2016 report, which explored ways of tackling electoral fraud.  All the same, the Government doesn’t have the kind of stable majority which would guarantee getting the proposal through.  So too with Priti Patel’s flagship law and order bills, or Grant Shapps’ reforms of rail franchising – or almost anything else.

What Boris Johnson and his team have set out at home – as his Brexit negotiating proposals apparently hang in the balance abroad – is a Dominic Cummings-type programme with a strong emphasis on the NHS, an Australian-style points-based immigration system, and tougher sentencing, seasoned with a dash of Johnsonian greenery.

Voters tend to hate elections, but the place to put these proposals to the test is at the ballot box, where they can be endorsed or rejected – not to a Parliament apparently determined to do little other than delay Brexit, while continuing to draw its salaries and expenses.

The final twist in this Through the Looking Glass tale would be were the speech to be defeated….and MPs to carry on as though nothing at all had happened, with a Government yearning to be no confidenced and an Opposition refusing to oblige.

Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’

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Another Federal Judge Spits In the Face of the Supreme Court

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In this Saturday, Jan. 6, 2018, photo, Texas Democratic Congressman Beto O’Rourke, right, passes a “No Border Wall” sign during a visit to the National Butterfly Center in Mission, Texas, a possible location for a border wall. O’Rourke is forsaking a safe seat in Congress and a rising-star career for the longest of odds in an attempt to unseat Texas Republican Sen. Ted Cruz. O’Rourke says that after Donald Trump was elected president, he decided he had to do more in politics than stay put in the House. (AP Photo/Eric Gay)

Stop me if you’ve seen this movie before.

Another federal judge has decided that Trump building a border wall through his emergency declaration is illegal. This came from Judge David Briones, a Clinton appointee (shocked face). His reasoning is as specious as the first judge that tried this.

Another federal judge ruled against President Trump’s use of a “national emergency” declaration to divert funds for the construction of a border wall on Friday, finding the use of an emergency proclamation “unlawful” because it violated a Congressional budgeting measure from January.

“The Congressional language in the [bill] reveals Congress’s intent to limit the border barrier funding,” wrote Judge David Briones, who was appointed to the federal District Court for the Western District of Texas by former President Bill Clinton.

There’s so much wrong when you drill down into this.

First, how does El Paso County and an activist group (who are the plaintiffs here) have standing to challenge federal agencies using federal funds on federal land? The simple answer is that there’s no legal reason they have standing. Yet, this judge decided they did based on the laughable notion that El Paso County would suffer “damage to their reputation.” By such a standard, anyone could have standing in any lawsuit against the federal government. It’s just ludicrous.

The Supreme Court has already slapped down a judge earlier this summer for an equally ridiculous ruling, which bounced back and forth between the 9th circuit originally. In it, the issue of standing came up, as it was yet another activist group doing the suing. The highest court has already ruled that Trump’s use of the emergency declaration is lawful and the gyrations of this judge don’t change that.

In the end, this will make it’s way up the change and be overturned. But until Chief Justice John Roberts stops sitting on his hands, lower court judges will continue to spit in his face and gum up the judicial system with unsupported rulings such as this. Allowing this ruling to stand for even a day is an affront to our system. It’s not enough to let this spend months going through the system. The Supreme Court should immediately overrule this and then take away the ability for district court judges to make national injunctions.

Meanwhile, the wall keeps going up, whether these rogue judges like it or not.

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