The Burning of the Reichstag.

Recently the UK Supreme Court has considering the issue of the prorogation of Parliament.

It has been said that it handed down its ruling on Tuesday (24/9/19).

I think though that under the circumstances; "Ruling" is too harsh a term.

If the Supreme Court Justices consider their emanation to be a legal ruling then they have wildly disregarded the law and abused their own positions.

That leaves little option other than to discuss the manner in which they will be dismissed.

A process which involves nasty questions about how much Britain's membership of the EU contributes to the sense of self of five former employees of the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ).

After all "Brexit Anxiety Syndrome" is recognised by the Crown. And medical certificates have been issued;

https://www.express.co.uk/news/uk/1110130/brexit-latest-news-stress-anxiety-mental-health-counselling-civil-servants

So I think it is more appropriate to say the Supreme Court has handed down a; "Teaching Material." For law schools across the Commonwealth.

After all it is all too common for Existentialism to give way to Nihilism. I though don't think we should burn the whole place down. Just so Lord Justice Hodge can maintain his relationship with his son, George.

The question, I think we all agree continues to be before the Supreme Court, relates to the concept of; "Parliamentary Sovereignty."

Many Members of the Commons on the Remain side have tried to dupe the public into thinking this means that they hold absolute power. Answerable to no-one. Not even the electorate.

That is completely untrue. Parliament is only sovereign in the sense that all houses in Britain are sovereign.

That is to say that either house of Parliament is able to go about its business. Free from undue interference from the Monarch or, indeed, the other house of Parliament.

The example I always use is that of the police. If you are being pedantic or obnoxious the police are part of the forces of the Crown. The Monarch's men-at-arms.

The police cannot just storm into any British house simply because they want to.

Instead they must first obtain a Warrant of Entry from a Judge. If they wish to search the house they must also obtain a Warrant of Search.

There is of course another way the police can enter a house. They can ask and receive the permission of the householder.

Some of Britain's less professional police forces still attempt to trick arrested people into giving permission for search and entry. When they know that no Judge would grant a warrant.

The challenge to the prorogation of Parliament has been brought to prevent the opening of a new Parliamentary session. The State Opening of Parliament.

Such is the scale of constitutional vandalism that if the Supreme Court has handed down a ruling then it is far from clear that a new Parliamentary session can ever be opened. Instead leaving us stuck with these current MP's until they die.

However on YouTube etc you can go and view footage of previous State Openings of Parliament. These include a very clear visual display of the concept of Parliamentary Sovereignty.

The new Parliamentary session is opened by a speech by the Monarch. This takes place in the upper house, the House of Lords. Both the Monarch and members of the lower house, the House of Commons have to be formally invited into the House of Lords.

The invitation is extended to the Commons by; "The Gentleman Usher of the Black Rod." The head of security for the House of Lords.

As Black Rod walks the lobby from the Lords to the Commons the head of security for the Commons shuts and barricades the doors. This forces Black Rod to knock on those doors with that black rod of his and ask members of the Commons permission to enter their house.

Although it seems like quaint pageantry this act continues to have full legal forces. It dates back from a time when the Monarch and members from both houses would send armed men to kidnap members of the other house they objected to.

Parliament is not technically prorogued by the Monarch. Instead it is prorogued by the Privy Council. A council of advisers headed by the Monarch. The actual Statutory Instrument used is known as an; "Order of Council."

There are currently over 650 members of the Privy Council. Including many members of the House of Commons. Such as Jeremy Corbyn, leader of the Labour Party and Jo Swinson, leader of the Liberal Democrat Party.

So when those members of the Commons say they object to prorogation they are in fact objecting to something they, themselves have done.

Generally though an Order of Council is considered, in the first instance, to be the exercising of a Royal Power.

That though changes when it is accepted by Parliament. At that point it becomes both the exercising of a Royal Power and the exercising of a Parliamentary proceeding.

Rather like the example of me inviting a police officer into my home.

That requires them to exercise their power to ask. It also requires me to exercise my power to agree to their request. The act itself represents us both exercising our powers.

In producing its teaching material the Supreme Court has completely disregarded this. Treating an Order of Council to be only the exercise of a Royal Power.

In doing this the Supreme Court has disregarded a host of Common Law principles. And crucially a number of statutes or written laws.

Chief amongst these is the Bill of Rights of 1689.

This establishes the Freedom of Speech, Debate or Other Proceeding in either house of Parliament. This freedom means that any proceeding or exercise of Parliamentary power cannot be questioned or impeached by any Court.

That freedom is known as the principle of; "Parliamentary Supremacy."

However before John Bercow launches into another of his spittle flecked tirades I should point out that refers only to Parliament's supremacy over the Courts. The electorate retains supremacy over Parliament.

In talk about negotiations, particularly Brexit negotiations, people often refer to; "Red Lines That Cannot be Crossed."

The UK House of Commons is home to the actual Red Lines from which the saying originates.

In front of the two opposing benches there are red lines on the floor. These red lines are two sword lengths apart. It has long been absolutely forbidden for an MP to cross the red line before them without permission. This rule exists entirely to stop rival MP's from attacking each other with swords.

Even now if Jeremy Corbyn were to leap across the dispatch box and lop off Boris Johnson's head with a sword that would not be considered a matter for the Courts. Instead it would be a matter for the Speaker and Parliament itself.

Although I suspect that in these modern times they would immediately refer the matter to the Courts. Even if I think quite a few people would like to see the current House of Commons set to; "Thunderdome." In order to break the impasse.

This Parliamentary Supremacy (Over the Courts) is vital to the function of democracy. It allows the people to have a say in and consent to the laws they are governed by.

Without the consent of the people you are left with tyranny.

The alternative to Parliamentary Supremacy (Over the Courts) is that Judges can pass or rescind laws as they wish. "Legislating From the Bench" as it is known. Aside from tyranny this is a recipe for chaos and corruption.

Imagine if Parliament had set environmental protection rules. Stating that Fracking must stop once earthquakes over a certain level are detected.

If you work for the biggest fracking company in the country you would obviously be keen for your brother, a Judge, to simply overturn those rules. Allowing you to line your pockets while local people have their homes destroyed without any recourse.

Prior to the adoption of the Bill of Rights (1689) there was a significant movement amongst Judges who thought they should be able to legislate from the bench.

Take for example Day v Savadge (1615) in which Judge Coke declared;

"Even an Act of Parliament, made against natural equity, as to make a man judge in his own cause is void in itself."

The adoption of the Bill of Rights (1689) completely ended that debate. It codified into law that no Judge may question or overturn a law or other Parliamentary proceeding.

Even Coke himself came around to supporting the principle of Parliamentary Supremacy (Over the Courts).

It is not an overstatement to say that the principle of Parliamentary Supremacy (Over the Courts) is tested and upheld every day, in almost every case before British Courts over the last 330 years.

For example I think it is fair to say that there are a significant number of British Judges who consider it morally wrong to punish drug addicts for possessing the drugs to which they are addicted. Instead considering it something that should be treated as a health problem.

However if it is proved before them that a drug addict was in possession of drugs they know they have to convict them. Overturning a law they disagree with is simply not an option.

Recently there was a lot of publicity surrounding the Coroner's Inquest into the death of Natasha Ednan-Laperouse. Who died after eating a sandwich containing sesame seeds to which she was allergic.

The Judge in the case felt the law which stated the sandwich maker did not have to clearly list the allergens was insufficient. However they did not attempt to change the law themselves. Instead knowing that merely writing to Parliament suggesting the law be changed was the limit of their powers.

It is then certainly beyond any dispute that the Supreme Court lacks the power to remove the elements of the Bill of Rights (1689) relating to the Freedom of Parliamentary Proceeding.

The only way they could even consider the case is if they felt Parliament had not consented to prorogation. Leaving the Order of Council as merely the exercising of a Royal Power.

There is though absolutely no question that Parliament had given its consent to prorogation. It gave that consent on June 21st 2017 (21/6/17). At the last State Opening of Parliament.

By allowing the session of Parliament to be opened Parliament consented to it being brought to an end through the issuing of a Order of Council. Either to allow for the opening of a new session of Parliament or for the calling of a General Election in accordance with the Fixed Term Parliament's Act of 2011.

That arrangement is very far from the arcane exercising of the Divine Right of Monarchs.

While this question has been before the UK Supreme Court Israel has had another General Election. Which are always a white-knuckle ride.

The concept of a King of the Jews is a very powerful one within Judaism. So Israel is most certainly not a Monarchy. Instead it is a Parliamentary Republic.

However it was not the Israeli Prime Minister or the Israeli Parliament which ended the session and called a General Election. That fell to its Head of State, President Reuven Rivlin.

President Rivlin has chosen today to exercise another of his powers as Head of State. Calling on Benjamin Netenyahu to attempt to form a government. Allowing President Rivlin to re-open Parliament.

There has also recently been a similar situation in Italy. Which is also a Parliamentary Republic.

The leader of the Northern League Party withdrew from the governing coalition. In the hope of triggering a General Election. However the power to dissolve Italy's Parliament and call a General Election lies with its President Sergio Mattarella.

President Mattarella instead instructed two other Italian parties, the Five Star Movement and the Democratic Party, to form a coalition. They were successful in this effort meaning no General Election was called.

Furthermore June 21st 2017 (21/6/17) was not the only occasion Parliament gave its consent to prorogation. They restated their consent to prorogation on September 10th 2019 (10/9/19).

When Black Rod walked across the lobby from the Lords to the Commons the doors of the Commons were not closed and barricaded. Instead Black Rod was invited in, the Order of Council was read, the Commons session was ended and members of the Commons walked with Black Rod into the Lords.

The appellants in the case before the Supreme Court, Gina Miller et al, have attempted to argue that this consent  to prorogation, given twice by Parliament, was not valid. On the grounds that it had been obtained through fraud or some other irregularity.

This alone should have made clear to the Supreme Court the vexatious nature of the application.

It served no purpose other than to force the respondent to hand over their private communications and submit their reputation to what, anywhere else, would be considered slander and libel.

Which is normally the sort of behaviour which sees lawyers jailed for holding the Court in contempt and expelled from the profession in disgrace.

This question of whether a Parliamentary proceeding can be challenged on the grounds of fraud or other irregularity was very much part of the argument put forward by Judges opposed to the Bill of Rights (1689).

As part of the principle of Parliamentary Supremacy (Over the Courts) the adoption of the Bill of Rights (1689) wrote into statute that you cannot challenge a Parliamentary proceeding on grounds of fraud or other irregularity.

Therefore any challenge on those grounds has no legal validity. Strictly speaking they should be immediately dismissed and not even granted a hearing.

However Courts have some leeway in deciding which applications they hear. So this issue of fraud or irregularity has been tested and upheld almost as frequently as the other aspects of Parliamentary Supremacy (Over the Courts) have been tested and upheld.

Parliamentary proceedings very often end up costing private citizens and business' money. So are frequently challenged.

This most commonly occurs when the government decides that it wants to build something like a new airport, road or railway line. So they issue Compulsory Purchase Orders (Eminent Domain, in the US) for all properties in the path of the new development.

Today Parliament has denied the Conservative Party a recess to hold their party conference in Manchester. Despite both the Liberal Democrat and Labour parties being granted recesses to hold their party conference.

So it seems appropriate to mention High Speed Rail 2 (HS2). Plans to build a railway line that dramatically cuts journey times between London and Manchester.

Compulsory Purchase Orders have already been issued for the properties along the proposed route of HS2. Almost without exception they have been challenged by the property owners. One particularly high profile case involved the comedian/TV presenter John Bishop.

It is this area of law which provides one of the clearest precedents on whether Parliamentary Supremacy (Over the Courts) can be challenged on grounds of fraud or irregularity. British Railways Board v Pickin (1974).

Pickin claimed that British Rail had mislead Parliament over its need to deprive him of parts of his land. Citing another precedent from 1842 the application was dismissed as;

"Frivolous, vexatious and an abuse of the process of the Court."

The matter was discussed in the House of Lords. Who concluded that;

"Such a doctrine {allowing challenges on grounds of fraud or irregularity} would be dangerous and impermissible."

That debate in the House of Lords is inarguably a proceeding of Parliament. Further making it impossible for the Supreme Court allow a challenge on grounds of fraud or irregularity.

So in summary;

The Supreme Courts lacks the authority to disregard Parliament's repeated consent to prorogation. As such it cannot treat prorogation as merely the exercising of a Royal Power.

The Bill of Rights (1689) denies the Supreme Court the power to question or impeach the prorogation of Parliament.

The principle of Parliamentary Supremacy (Over the Courts) laid down in the Bill of Rights (1689) certainly denies the Supreme Court the power rewrite or otherwise amend the Bill of Rights (1689) to suit its own purpose.

That principle of Parliamentary Supremacy explicitly denies the Supreme Court the power to consider an application based on grounds of fraud or other irregularity.


To paraphrase Lady Justice Hale in her production of the Teaching Material;

"This is not a legal ruling. It is as if the Supreme Court has produced nothing but a blank sheet of paper."

"Parliament Continues to be Prorogued."

When it does return one of Parliament's first orders of business will be to perform its solemn duty and remove those eleven Justices from the Supreme Court.


19:33 on 26/9/19 (UK date).