Boris Johnson to "Test Legal Limits", Amber Rudd Resigns, Javid Interview

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Amber Rudd, pensions secretary, quit Johnson's cabinet. Chancellor Sajid Javid had an impressive interview on policy.

Tory Remainer Purge Continues

The BBC reports Amber Rudd Quits Cabinet Blaming Brexit Inaction.

The ex-work and pensions secretary said the government was having no "formal negotiations" with the EU about a new deal, only "conversations".

Instead, 80-90% of Brexit work was spent preparing for an "inferior" no-deal option, she said.

Ms Rudd told the Sunday Times she would be considering whether to stand as an independent Conservative should there be an general election.

In her resignation letter to the prime minister, Ms Rudd said: "I joined your cabinet in good faith: accepting that 'No Deal' had to be on the table, because it was the means by which we would have the best chance of achieving a new deal to leave on 31 October.

What's the Resignation Mean?

  1. Abmber Rudd is a Remainer at heart.
  2. She never belonged in Johnson's cabinet.

Did Johnson Make a Mistake?

Arguably, Johnson made a mistake appointing Rudd.

However, Rudd mitigated the error. The end result is a spectacular success: Another high ranking Remainer bit the dust.

How bad can that be?

Boris Johnson to Test Legal Limits

Please consider Brexit Extension: PM to 'Test Law to limit'

The government will "test to the limit" a new law designed to force it to seek an extension to the Brexit deadline if a deal is not reached by 19 October.

Foreign Secretary Dominic Raab said the government would abide by the law but would "look very carefully" at its "interpretation" of the legislation.

"That legislation is lousy, it envisages multiple delays, it would effectively force us to accept conditions from the EU however vindictive, punitive and harsh they may be," he told Sky News' Sophy Ridge on Sunday programme.

He added: "We will adhere to the law but we will also - because this is such a bad piece of legislation - want to test to the limit what it actually lawfully requires."

Andrew Marr Show - Sajid Javid Interview

Select Javid Quotes

  • "We will leave on Oct 31"
  • "The Prime Minister will go to the October [European] Council on October 17 and 18 and he will try to strike a deal. He absolutely will not ask for an extension in that meeting".
  • "The law talks about October 19 ... should we get to that position we will look at our options."
  • "Of, course the government will obey the law."
  • "The prime minister will not be resigning. He will keep his promise to leave on October 31"

Careful Answers

Note that Javid did not state Johnson would refuse to seek an extension. He only ruled out seeking an extension "in that meeting".

When pressured by Marr about how it is possible to obey the law yet not seek an extension, Javid responsed "We will be consistent with obeying the law but also sticking to our policy. You have to wait and see that happen."

Marr further pressured "The government's position is that we will obey the law but we won't do what the law tells us to do."

Javid, carefully replied "Those are your words, not my words". ... "We will obey all laws because all governments should obey laws, but you have to wait and see what happens then."

Marr then tried to move on but Javid interrupted. "This issue has divided our country for far too long. I am in a government that wants to heal society, to bring people together. This issue of the EU, Remain or Leave, we can't let it continue. It's been three years since we had that referendum. And I talk to people all the time like I did this weekend. People, whether they voted leave, whether they voted Rermain, they want this over. They want us to exit. They see no reason for another pointless delay."

Javid then carefully ducked repeated questions about an alliance with Nigel Farage. He would not rule out an alliance with Farage. Instead he repeated three times they did not need such an alliance.

Love This Interview

I love this interview.

Javid was confident and calm. He would not be bullied and did not get flustered by Marr's attempts to pen him in.

Javid was impressive. Make that very impressive.

I believe I know the October 19 tactic, but I will not post it. Nor will comment on other alternatives that I think are likely. There is no need to do so.

The tactics are likely to come up anyway, but if not, I certainly do not want to be the one tipping off Labour.

UK Constitution

Several times my readers have commented "The UK does not have a constitution."

That is at best misleading and arguably flat out wrong.

It's more accurate to state the UK does not have a "codified" constitution but rather an Unwritten Constitution.

Wikipedia has this to say about the Constitution of the United Kingdom.

The constitution of the United Kingdom is the system of rules that determine the political governance of the United Kingdom of Great Britain and Northern Ireland. The UK constitution is not contained in a single code but principles have emerged over the centuries from statute, case law, political conventions and social consensus.

UK Constitutional Law Association

Please note there is a "UK Constitutional Law Association".

A system of courts interprets the law.

Codified or not the UK effectively has a constitution.

Proper Denial of Royal Assent

Please consider the Proper Denial of Royal Assent by Michael Detmold of the UK Constitutional Law Association.

Twenty-one eminent constitutional lawyers expressed this view in a letter to the Times (3 4 19): ‘Any attempt to advise refusal of Royal Assent to a Bill passed by Parliament would stand constitutional principle on its head. It would presume a governmental power to override Parliament, yet it is in Parliament, not the Executive, that sovereignty resides’.

Let's stop right there for an observation. To have constitutional lawyers implies a constitution.

Detmold makes a second reference to the constitution in this paragraph.

In R (Miller) v Secretary of State for Exiting the EU, [2017] UKSC 5, the majority judges said (at 82): ‘we cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation’.

The court itself used the words "constitutional arrangements". Can there be constitutional arrangements without a constitution?

The debate about the UK constitution is dismissed. Let's move on to the important issue.

Emphasis mine.

Queen's Constitutional Duty

A distinctive aspect of the Queen’s constitutional duty is for her to act only on advice. In that way she avoids compromising her constitutional status by the possession of a personal opinion. There is no sense ever in which the legislature advises the Queen. The advice of the executive is the foundation of her constitutional status.

She is a constitutional monarch with no opinion of her own on Brexit, and if advised by her Prime Minister to refuse assent, she must do so.

Will the Supreme Court stick with the demotion of the executive power evidenced by Miller and enjoin the Prime Minister from giving advice against assenting to the bill? No court, we may take it, would enjoin the Queen as to her assent to a bill. But enjoining the Prime Minister would have the same effect. This is because if you take away the Prime Ministerial power of advice, you take away the power of the Queen to act as a constitutional monarch: she has no interest or view of her own, and therefore can only act on advice. What would the enjoining of the Prime Minister against this achieve? It would turn the real Constitution on its head.

Royal Assent

Before a bill becomes law, it needs Royal Assent.

The Constitution Act, 1867, states that the approval of the Crown, signified by Royal Assent, is required for any bill to become law after passage by both the Senate and the House of Commons.”

Hmm, there's word "constitution" again.

Royal Assent Ceremonial Pomp

At the appointed time, the Usher of the Black Rod knocks on the main doors of the Commons Chamber, and the Speaker interrupts debate to welcome the Usher of the Black Rod, who informs the House that the Governor General or his or her deputy has asked them to proceed to the Senate. The Usher of the Black Rod then leads the House to the Senate, followed, in order, by the Sergeant-at-Arms bearing the Mace, and then the Speaker, the Clerk, the Table Officers, and the Members. The Speaker and the Members then gather at the Bar of the Senate.

The bills are printed on parchment and are tied with red ribbons, except for tax or supply bills, which are tied with green ribbons.

Johnson's Best Course of Action

The bill cannot become law unless Johnson advises the Queen accordingly.

Johnson's best course of action may be to do nothing at all.

How about not involving the Queen directly but rather issuing a statement that he will delay giving the Queen advice because he needs time to study the constitutional legality?

If Johnson advises the Queen the bill is unconstitutional, there will be an immediate court challenge.

A third possibility is to advise the Queen he needs until October 14 to study the constitutional merits of the bill. The Queen will have abide by that request according to the UK Constitutional Law Association.

That tactic has the advantage of getting the Queen's approval, perhaps making a legal challenge far more difficult.

Poll: When will the Benn Bill Become Law?

The bill is clearly illegal. I doubt Johnson will request Royal Assent given Javid's "test to the limit" statement.

If Johnson requests Royal Assent on Monday, it will be for a specific reason, most likely a legal "test the limit" action later.

We find out more tomorrow.

Meanwhile, please note that a Parliamentary recess starts at the end of the session on Monday, September 9.

The recess will last until October 14.

Mike "Mish" Shedlock

Comments (20)
No. 1-12
ksdude69
ksdude69

And I thought the **** was getting deep months ago.

JKintheUSA
JKintheUSA

Love the analysis in your post. Hoping a legal challenge on Queen's Consent is made and bill ruled illegal.

goldendase
goldendase

"He would not rule out an alliance with Farage. Instead he repeated three times they did not need such an alliance." Assuming that whatever Johnson's tactic is, that it works and the bill is effectively ignored. Does that suggest to you that perhaps he plans on pulling some opposition MPs into voting on a deal (TM withdrawal, minus the backstop) that he secures with the EU? The EU would have to yield on - at minimum - the backstop, (I believe they said they are not opposed to negotiation "in principle" before the bill happened). Since Johnson has shown willingness and ability to secure no-deal (coupled with removing the whip from the rebels), the threat would we credible.

He could, at that point, claim "victory" on all counts and label himself a unifier (consider the "I am in a government that wants to heal society" comment from Javid). Farage would not be happy, but Johnson could present the new deal as a conservative victory in delivering Brexit to conservatives, eliminating most of the Brexit faction while at the same time doing a "I brought people from all parties together!" shtick for the public.

blue peacock
blue peacock

Fascinating that 3 years after the people voted in a referendum to exit the EU, the UK parliament continues to thwart the will of the people.

2banana
2banana

And that is the problem right there.

It was well understood and historically accurate that the common British citizen could arm themselves, every house is a castle and could be defended with deadly force.

Those "rights" were taken away by the socialists that occupied modern power.

And why the socialists in America hate the 2nd Amendment.

"It's more accurate to state the UK does not have a "codified" constitution but rather an Unwritten Constitution."