The Benn Act - is it Humbug?

There has recently been a lot of talk about the Benn Act.  The European Union (Withdrawal) (No. 2) Act 2019 requires the Prime Minister to ask the EU for an extension to article 50 by 19^th of October 2019 if no deal is reached with the EU by then.

The question is …will Boris obey the law or find a way to circumvent it?  Or is that actually the question?

Well, let’s put it this way… It is true that the Government’s Sovereignty comes from Parliament.  But does that make it okay for Parliament to effectively legislate against the Government?  This is a very unusual step indeed.  The normal protocol for the opposition in this situation would be to force a vote of no confidence in the government and either form their own temporary government or call a General Election.  It isn’t as if the arithmetic in the Commons is stopping the opposition forming an alternative government.  All that is stopping the opposition parties forming an alternative government is their dislike of each other.  

The situation of Parliament telling the Government what governmental decisions to make seems to me to be questionable.  If the PM does not have the confidence of the House the House should remove him or the government should remove its self and this is what used to happen before the Fixed Term Parliaments Acts.

So there is a lot of talk about it being illegal to violate the Benn Act … but is the Benn Act its self legal?   

It is highly unusual to have a law that singles out one person (the Prime Minister) and then tells him what to do.  Okay the bill could apply to anyone who was Prime Minister but since there is only one Prime Minister at a time it’s very much personally aimed at Boris.  This raises the question could Boris himself take Parliament to Judicial Review...? claiming perhaps that a law telling him personally what to do is a human rights abuse?   

Judges are not allowed to overturn primary legislation but they could issue a Declaration of incompatibility with the European Convention of Human Rights under the Human Rights Act 1998 section 4.  Of course Boris probably wants to abolish the European Convention of Human Rights but shouldn’t we be better than Boris?

Anyway, it’s all nonsense… the only way to prevent a hard Brexit is for the opposition parties to put aside their differences and form a government…  Trying to tell the executive what to do by legislating against it is, if not unconstitutional (which it may be), … at the very least a very long winded and silly way to run a country.  Still that’s the Fixed Term Parliament Act for you…

Guest post by Lady Hale of the Supreme Court

It seems then that the Supreme Court has decided - as was anticipated - that the porogation of parliament by Boris Johnson was illegal, null and void.  Much has been made of the fact that this was a unanimous 11-0 decision.  But is this really such a suprise? Time and again during the TV coverage the Judges asked the Government why they put forward no proper witness statements and one has to ask yes ... why?  The only answers I can come up with are that the Prime Minister is just intelligent enough not to perjure himself or worse to bring further condemnation by being accused of lying to or misleading the Court.  Also the Government has been doing everything it can to avoid answering the question "how and why was this decision taken?"  In short it literally put up no defence.

Perhaps the Cabinet Office knew by the point that it reached the Supreme Court that the Government goose was already cooked but the Judges seemed offended that the Government hadn't even bothered to mount a proper defence.  In this situation then the Court could only conclude that...

No justification for taking action with such an extreme effect has been put before the court. The only evidence of why it was taken is the memorandum from Nikki da Costa of 15th August.

This explains why holding the Queen’s Speech to open a new session of Parliament on 14th October would be desirable. It does not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. It does not discuss the difference between prorogation and recess. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.

The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

Johnson simply says he profoundly disagrees with Judges, uses the need for a Queen's speech to try to justify the 5 week porogation when the Judges say there is no excuse and tries to pretend that he thought that like He-man he "had the power..."

Acutally the boundaries of executive power have been open to various forms of "Judicial Review" for centuries.  The main modern precedent by which the judiciary may over-rule the government is known as Wednesbury Reasonableness.

This is the Wednesbury Gaumont (later ODEON later Ladbrokes Bingo) picture house ...

In 1932 the Government passed the "Sunday Entertainments Acts" - this allowed for the opening of Cinemas on a Sunday.  However, the local authority were not up for Sunday Cinema so they inserted a clause into the cinema Licence that "no children under the age of fifteen years shall be admitted to any entertainments whether accompanied by adult or not"... in an attempt to allow the Cinema to open but only in such a way as to be painfully uncommercial.  This resulted in an epic legal battle which became known as

ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED
v. WEDNESBURY CORPORATION.

To cut a long story short to everyone's astonishment the Picture House won...

Other bounds on executive power were set by Council of Civil Service Unions v Minister for the Civil Service when Mrs Thatcher got into an argument with the courts about banning unions at GCHQ.  Here are some memorable quotes from the judements in these two cases...

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.  

Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority
could ever have come to it. In such a case, again, I think the court can interfere.

The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.

 In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account" 

The Case of Perry Mason's Beard

Today I was watching an old episode of Perry Mason.  So old that he didn't have a beard ... so I thought I’d google Raymond Burr to find out something about his life.   

However, Raymond had already forseen this … to the point where Wikipedia almost holds its hands up and says “Sorry, we dunno - there's too many conflicting stories”.

Raymond it seems was a homosexual at a time when this was the kiss of death to a Hollywood career so he invented stories to try and disguise the real situation of his life.   

However, he didn’t just tell a few white lies, Burr invented himself entire parallel life histories – some of which contradicted each other but fortunately the press were too dumb to pick up on this during his lifetime.  Indeed, Mr Burr it seems was a near pathological liar and the lies he invented about himself and his life in order to conceal his homosexuality included some absolute whoppers so huge you have to wonder if they were actually neccessary or his lying was simply pathological.  Such as…

Claiming he joined the US navy in 1944 when he was really in the Coast Guard

Claiming he had been widowed twice (he was briefly married once – it failed within months for obvious reasons).

Claiming one of his fake ex-wives died in the 1943 plane crash that killed Leslie Howard.  Being dead made her strangely hard for anyone to interview.

Claiming to have a son called Michael Evan who died of leukemia in 1953 at the age of ten.

Claiming to have taken a year off to take his dying son on a tour of the US when he was clearly working filming for most of the year he claimed to have taken off.  Fortunately IMDB hadn’t been invented in those days so he actually got away with that one.

Claiming to have had another wife called Laura Andrina Morgan who died of cancer in 1955.  Again this and the fact she probably never existed anyway made it difficult for the press to interview her.

Eventually Mr Burr found inventing these stories of having been married to ladies who had mysteriously died of cancer or in plane crashes and having had children who had mysteriously died of leukemia somewhat taxing.  So much so that in the late 60s he decided that it might just be simpler if he just got a beard.  So he started spending a lot of time in public places with Natalie Wood.  

Wood’s agent sent her on dates with famous closeted homosexual Hollywood stars in need of beards in order to raise her profile.  This helped disguise Burr’s real relationship with Robert Benevides while helping Wood to disguise her affair with Robert Wagner who she later married.  

It seems Mr Burr became somewhat unhappy when Ms Wood went on pretend dates with other homosexual men in search of beards…

On November 29, 1981, Wood drowned near Wagner’s yacht Splendour while it was moored near Catalina Island.  Two witnesses, who had been on a boat nearby, stated they had heard a woman scream for help during the night.  It was claimed by Dennis Davern (the captain of the yaught) in 2011 that he had lied to the PoPo to hide the fact that Wagner and Wood had an argument about the nature of her relationship with Christopher Walken who was also on the boat that night and claims he saw nothing shortly before her death but … 

Well, never mind about that – that’s another story that no one knows the answers to because neither Perry Mason nor Ironside could solve the case.  And neither could anyone else after it was re-opened in 2012.

Robert Wagner is 89.