Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 321. Oh that’s awesome!
Andrew: [Laughs] Yeah!
Thomas: 3-2-1, go!
Thomas: Here we go!
Andrew: Here we go.
Thomas: How’re you doing Andrew?
Andrew: I am fantastic. I’m super excited about today’s show, so we’re gonna revisit Brexit and I can’t wait.
Thomas: Yeah, let’s get on over to our interview about Brexit and so much more with Emma McClure.
Interview with Emma McClure
Thomas: And we are joined by Emma McClure, you got a little sneak peak via T3BE last week, everybody. It is time for our interview with Emma McClure, how’re you doing Emma?
Emma: I’m doing very well, how are you doing?
Thomas: Doin’ great, I’m still on the edge – I’ve just been permanently on the edge of my seat ever since last week’s T3BE, it’s giving me a butt cramp, but I’ve just been on the edge of my seat this whole time. Can’t wait to find out the answer. But before that, we’re going to talk about Brexit, we’re gonna talk about the recent decision that I think Andrew – correct me if I’m wrong but I’m pretty sure this surprised you, you were kind of predicting it might go differently?
Andrew was Right on Brexit
Andrew: Yeah, it absolutely surprised me. So first, I have to ask. Emma, in episode 315 I did my very best to explain prorogation and the entire Brexit situation, so tell us all [Laughing] what did I get wrong? And be kind.
Emma: [Laughs] So in terms of the substantive law I don’t think you got anything wrong, I think that was all spot on-
Andrew: Alright, well that’s it! Let’s pack up and go home, I’m done! We’re done!
Thomas: Yeah, end of the show!
Andrew: Thank you, thanks to our guest, Emma McClure, everybody!
Emma: [Laughs] The only bits that I would take issue with was first of all the idea that everyone agrees that Brexit’s a terrible, horrible, racist idea. Unfortunately quite a lot of people very sincerely believe the opposite.
Then the other thing was I thought you should maybe have steel-manned Boris Johnson or, given his full title, Alexander Boris de Pfeffel Johnson’s position that it wasn’t about Brexit, that was the argument that he made-
Andrew: Oooh, ooh! I have two follow up questions. Number one, is saying Alexander Boris de Pfeffel Johnson, is that the equivalent of us saying “Jefferson Beauregard Sessions III” over here?
Thomas: Barrack Hussein Obama? Oh, okay.
Emma: Yeah, yeah. Yes.
Andrew: Number two, harder one, what is that steel-man position on Boris Johnson? What is he saying that the proroguing was about?
Emma: Well, he said a few things afterwards that kind of negate this, but before the outcome of the case his position was that the prorogation was an entirely normal thing – and proroguing parliament is a normal and usual thing that happens – and that he was doing it for a queen’s speech which, again, is something that does happen regularly. The difficulty he has with that argument is that it was a very long prorogation at a very critical time for the U.K. constitution.
Andrew: Typically in a queen’s speech – in other words, let me ask this question in a more straightforward way. What would lead you to believe that that’s a pretextual argument?
Emma: [Laughs] So the previous, any previous prorogation of parliament has been only like a few days long usually for a queen’s speech and then there’s no – in the documents provided by the government in this case there was no justification at all for why it had to be five weeks long.
Emma: So that’s basically it, and they didn’t produce any witness statements or anything like that to explain themselves further during the proceedings.
Andrew: Got it. So with that in mind, I drew the analogy, and some folks I think disputed this analogy, that we had a ruling from a Scottish court that said that the proroguing was illegal under Scottish law, that that was binding on Scotland but not the rest of the U.K. and then we had the prior ruling from a British court and this is what sent it to the U.K. Supreme Court in what is analogous, again not a direct copying, but analogous to when our Supreme Court resolves a split between the circuits.
Prior to that, when you have a split between the circuits the law is good for the states over which that circuit sits, so, for example, as we are recording this we have a split between various circuits as to whether one of our landmark antidiscrimination laws protects discrimination on the basis of sexual orientation and gender identification or whether it just protects on the basis of sex and that split means that the law is different depending on which state of the United States that you’re in. So I guess kind of preliminarily, how do you feel about that as an analogy to the two prior court decisions before we get into what the U.K. Supreme Court actually decided?
Emma: I think it’s a reasonable analogy, the only thing I would say is that the Scottish case was decided first and the only reason that case started first is because the courts in England and Wales weren’t sitting during August, so there was a case brought in Scottish courts first of all. Otherwise, yeah, that’s a good analogy I would say. It’s not exactly mirrored, but yeah.
Andrew: Yeah, yeah. It wouldn’t be perfect. One of the things that might happen in the United States if you had multiple cases going up on multiple tracks is you might see the lawyers move to stay consideration of one court’s decision pending another court’s decision-
Andrew: So I could see an argument that says “look, we are talking about proroguing parliament in London so why don’t we stay the Scottish decision pending the decision by the English court.” Did that happen here? Would that have been an approach or is that just not the way you do that across the pond?
Emma: There are circumstances in which some decisions, some cases are stayed behind other cases if they’re vaguely similar and are going to be talking about the same arguments and things like that, but it wouldn’t be usual for Scottish cases and cases in England and Wales to – I think when you’re saying “British” you’re referring to the courts in England and Wales, just to clarify, and Scotland, they would normally run parallel to each other. They normally wouldn’t interfere with one another until they got up to the Supreme Court, which is both of their ultimate appellate courts.
Andrew: That makes sense. So let’s dig into, then, the underlying argument which I summarized as an argument that the stated basis for proroguing parliament was pretextual and therefore unlawful. First, fair summary? Anything you want to add in terms of details on that? Or tell me I’m totally wrong?
Emma: I would say that the first and the biggest part of the case and the biggest part of the judgment talks about whether or not this was a justiciable question at all, and that is-
Andrew: Yeah. I definitely wanna get to that.
Andrew: Because that’s where I think that we have what was the biggest surprise to me.
Andrew: But sort of the underlying question – and, well in fact why don’t we move to that since it’s the most interesting part. One of the things we’ve talked about at considerable length on this show is the notion of standing, which is the same across both our respective legal systems.
Andrew: In the United States one element of standing in federal court – I should say as a sidebar, typically the way in which this inquiry comes up is to say the question of standing is a question of specific injury versus abstract questions.
Andrew: This is how in law school we’re taught, look, court’s don’t issue advisory opinions, you have to actually be hurt in order to go to the court and go “hey, this thing happened to me and I want it to stop or I want redress for the bad thing that happened.” Now obviously that’s a way oversimplification, you can get proscriptive relief, future relief, if you’re likely to be injured; you can sue on behalf of individuals who share certain instances in certain cases, so it’s a gross oversimplification, but that’s generally how we think of standing. But then there’s a second element of standing, and that is, is this the kind of injury that the courts are meant to address? Or is this something that should be addressed in some other forum?
A really good illustration of that principle of standing, albeit a really terrible decision, was our Supreme Court’s recent decision in Rucho v. Common Cause which were the gerrymandering cases that went up before the Supreme Court, in which the Supreme Court said the way in which congressional districts are drawn is not a justiciable question. It might be good, it might be bad, but it’s an essentially political question and the remedy is the political process. [Laughs] To harken back to our T3BE question from last week, a reasonably bright 12 year old could probably figure out that things that corrupt the political system probably aren’t best addressed in the political system, but our Supreme Court couldn’t figure that out. Nevertheless, that was an example of our Supreme Court ruling a question nonjusticiable.
So when I, in applying that similar kind of rationale to this case, if I were to imagine how the U.S. Supreme Court would rule on this I think it would be maybe even a 9-0, at minimum a 7-2 of our Supreme Court saying “we don’t inquire as to why a public official does, what their motives are for engaging in an official act. As long as there is a minimum justification for doing an official act the remedy is political. The remedy is to elect somebody else, so if you don’t like it it’s your own fault for the bad votes you’ve cast over the years. The solution is a political remedy, not a judicial one.” I think that’s sort of how our Supreme Court would have tackled this question. Your Supreme Court came to the exact opposite conclusion. Let’s talk about the first part.
Is there kind of a longstanding political question doctrine in the U.K. or is that an area where our two countries have diverged?
Emma: No, so there has been for a long time sort of a similar thing and it was very much the government’s position all the way through that this was an entirely political question and therefore the courts shouldn’t be addressing it. Of course the High Court in England and Wales, that was their position in the Court of First Instance, and they didn’t look at the merits of the case ‘cuz they just said it’s not justiciable, go away.
The difficulty with that is that if this particular question of using the royal prerogative power to prorogue parliament is nonjusticiable that meant that there isn’t really anything to stop the Prime Minister, this Prime Minister or a future Prime Minister, proroguing parliament for any reason for any length of time. Normally what the check and balance on the executive, the Prime Minister, is parliament scrutinizing him, but if he prorogues parliament and there’s and balance on him from the court to do that then that means he can do that for any length of time for any reason which would very quickly tip into totalitarianism if you had the wrong Prime Minister. The argument that the government was making in this case was that the Prime Minister have that level of power, which is a bit of an ugly argument to be making.
Andrew: So that argument was advanced at oral arguments? In other words, the question was “okay, so you’re saying we can’t inquire into why the Prime Minister prorogues parliament, we can’t ever do that?” and the government claiming yes?
Emma: Yeah, they were asked the question like that by the justices and the government’s response to that was that we shouldn’t be making the decision based on extreme hypotheticals, was their response to that.
Emma: So essentially the answer was yes. Yes, it’s a hypothetical, but it was technically something that could happen if their argument on justiciability was correct.
Andrew: Was the argument asked in the same way – so, number one, that just seems like really terrible lawyering, right? [Laughs] Usually you come prepared for that question, the hypothetical abuse question, so rather than just saying “I’m not gonna answer a hypothetical” you would say “no, where you draw the line is here” and it is conveniently just one step past where you are, right?
Andrew: Was the opposite question put to the other side? In other words the question of “where’s the threshold for how this court should determine an entirely political motive?” So if I’m trying to steel-man the Boris Johnson side I would say, okay, look, I get that we have to have some kind of check and balance against a Prime Minister who just prorogues parliament forever. “You can reconvene after my speech which will end in 2097.”
But we can draw that line, no more than two months or whatever, but consider the other side which is now every official function that I, as the Prime Minister, want to do, now if it’s sufficiently politically unpopular they can say you’re doing this for political motive. Well, look, part of that is I’m an elected official! By definition elected officials do things for political – if we didn’t have political motives we wouldn’t be elected to political office. So, in other words, I guess the argument or the question would be where do you draw the line at being able to inquire into the motives of the Prime Minister?
Emma: The way that the Court dealt with this is they actually neatly sidestepped the whole notion of having to inquire into the motive of the Prime Minister, and so they sidestepped that sort of thorny political issue. What they said was that with the prerogative power to prorogue parliament that that would have to be limited by constitutional principles of the U.K. Now what the constitutional principles of the U.K. are, are a little bit harder to define or articulate-
Emma: -than your constitutional principles because obviously you have one document, there’s the constitution that puts out all of the rules whereas we do have a constitution, some of it’s written down and some of it isn’t and it’s been developed over a very long period of time and [Laughs]
Thomas: Whose job is it to remember that, by the way? Different people memorize different parts? Ah, who wrote down – oh, no it’s an oral history.
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Thomas: How is some of it written down and some of it isn’t? That’s very weird.
Emma: So some of it’s written down in terms of statutes and laws, the same as your own, but because of the principle of parliamentary sovereignty in the U.K., because we don’t have one constitution and the parliament can make any law it wants and then it can’t bind itself. Some of our legislation is considered sort of quasi-constitutional, but it could be removed by another act of parliament tomorrow if they wanted.
An example of that would be the Human Rights Act which makes human rights legislation from Europe directly applicable in U.K. law, that’s been going on for a long time so lots of U.K. law has reference to it, but tomorrow the parliament could pass a law and get rid of that, but it is part of our constitution. There’s also conventions around things like who the Prime Minister is. There isn’t anywhere written down, a piece of legislation, that says “this is the Prime Minister and this is his role.” A lot of that is just constitutional convention. But there are lots of well-established principles that come primarily from common law, from case law.
The two principles that the Court looked at is parliamentary sovereignty, one, and parliamentary accountability and they said that both of those two things would both impinge on the power of the royal prerogative, and that wasn’t a new idea because that goes all the way back to – so the oldest case that was referenced in this case was the case of proclamations from 1611, which was a case involving James I, so not quite 13th century Saxony, but quite some time ago.
Emma: That case was about the fact that King James I was trying to make extra laws to raise taxes outside of rules made by parliament, and the court said no, no, no. I’m gonna quote this, “The King hath no prerogative but that which the law of the land allows him.” So the Court put that together and came up with a test which had nothing to do with the Prime Minister’s motive, which is easy to read for a judgment.
Some constitutional judgments are extremely technical and difficult to read, but this one is written in a way that it’s supposed to be read by a general audience. Paragraph 50 is where they lay out their test, and it says “For the purposes of the present case the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue parliament will be unlawful if the prorogation has the effect of frustrating or preventing without reasonable justification the ability of parliament to carry out its constitutional functions as a legislator and as the body responsible for the supervision of the executive. In such a situation the court will intervene if the effect is efficiently serious to justify such an exceptional course.”
So on the first point, whether or not the act of proroguing frustrated or prevented parliament doing its job the answer to that is patently yes because they were shut down for a very long time and they weren’t able to scrutinize what the Prime Minister was doing. A number of pieces of important legislation that were going through parliament got lost because the session had ended including a bill relating to supporting victims of domestic violence and a significant change to divorce law in the U.K., which would mean that you could get divorced without – it’s called no fault divorce because at the moment if you want to get divorced in the U.K. you have to essentially badmouth your spouse in some way. All of that was lost. So the answer to the first part is patently yes. It definitely frustrates parliament working, as it should.
So then you have to move onto the second question is whether or not there is a reasonable justification to do that, because sometimes there will be a reasonable justification to do that, such as a normal queen’s speech or something like that. The difficulty for the government at that point is that they hadn’t actually given any reason and the Court said this themselves, it was impossible for them to conclude that there was any reason let alone a good reason for the prorogation at this time given the timing, given we are currently careering towards October the 31st and they had said it was for a queen’s speech when normally queen’s speeches are for a few days.
Even then, the courts may not intervene if they thought that it wasn’t sufficiently serious, but given the context and the timing it is sufficiently serious and therefore they felt that it was unlawful, but that decision, there’s no inquiry in there at all into what the actual political motives of the Prime Minister were.
Andrew: So the portion of the judgment that you’ve I think is something that U.S. lawyers and show listeners will find pretty familiar. It’s really a two-part test. So the first part is the effects prong, does it have the effect of frustrating or preventing the ability of parliament to carry out its functions? Then if it meets that test then you move on to the intent prong, which is what constitutes reasonable justification? That determination by necessity will then bet the thornier one, is the one that requires you to look into the, in this case, look into the motives of Boris Johnson. That’s where I would draw a distinction with-
Andrew: -what you might think of as a typical U.S. Supreme Court ruling because we have a pretty long line of cases that say there is a difference between justification and motivation. So one of the cases we’ve talked about a lot is the City of Hialeah, Florida v. Church of Lukumi Babalu Aye and that involved legislators basically lining up to say “we want to pass this bill to make sure that those crazy Santeria-practitioners don’t do so in our lovely city of Hialeah.” [Laughs] That stands as an exception, that’s one of those where the Supreme Court’s like, [Sighs] Fine.
Ordinarily we don’t ask why legislators do a thing, but if they’re stupid enough to tell us in black and white “we’re doing this thing to discriminate against this particular branch of people” then we’re not gonna impose a requirement that we stick our fingers in our ears and pretend like nothing happened, we’ll let you look past the justification to the motivation in those sorts of extreme cases. So that’s a long-winded way of teeing up the question. In U.K. law is there that same level of distinction between justification and motivation? Because it seems to me as an outsider that the lines are more blurred.
Emma: Yeah, I’d say that the lines are certainly more blurred here, but it is kind of developing because you need to remember and realize that – so our current Supreme Court was ten years old on Tuesday. We’ve had a Court called “The Supreme Court” for ten years. Before that, we had a highest court before that but it was within the House of Lords in the Houses of Parliament, which was, for a long time – there wasn’t any evidence of actual bias but there was kind of a bit of an issue there in terms of separation of powers when the highest court in the land is sitting in parliament with the separation of powers. So with that and the developments in terms of human rights legislation, which I already mentioned, it was felt it was more appropriate to move them all out of the House of Lords and put them in their own building and call it the Supreme Court. The other thing to remember about our courts is-
Andrew: Before you get onto the other thing, I just wanna clarify. When you say “sitting,” you mean physically present, right?
Emma: Physically sitting in the House of Lords, yeah.
Andrew: [Laughs] Because it took me a minute to parse through that. You know, I was thinking, “well, sitting, does that mean convened by parliament?” But no, you just mean in the same building. Okay, great.
Emma: So with our – as our constitution isn’t, ‘cuz none of our laws or things that form part of our constitution are higher laws than anything else. So with your constitution you can change it, because you’ve got a bunch of amendments, but it’s hard to change it. It’s harder to change that than any other laws that you have, whereas all of our laws can be changed in the same way. None of them are at a higher level in the way that your constitution is, and because of that the Supreme Court in the U.K. doesn’t have the power to strike down legislation, whereas I understand that yours can. That’s right, isn’t it?
Andrew: Yes. Yes.
Emma: Because they can compare it to the constitution and say it’s unconstitutional.
Emma: Whereas our court does not have that power because we do not have a formal constitution that’s above all the other legislation.
Thomas: Then … what’s your court doing all day, then?
Thomas: [Laughs] Are they-
Emma: Well historically they used to make much more technical legal decisions rather than – so they have been developing more of an overt constitutional role in terms of articulating the constitutional rules, and that has been developing over quite a long period of time and it’s kind of accelerated since they have become their own separate thing in their own building, the Supreme Court. I think this judgment is emblematic of them finding their feet in terms of becoming a more formal constitutional court for the U.K.
Thomas: Wow. It’s like your Marbury v. Madison over there!
Andrew: Yeah! I mean, that’s exactly where I was gonna go because I suppose I wanna pose the hypothetical. You have various U.K. statutes that protect certain civil and political and human rights.
Andrew: What happens if a subsequently enacted statute contradicts, is alleged to contradict the earlier statute? Is it just a matter of harmonizing the language? I guess it would have to be, right? Because you’d have no constitutional rights to vindicate.
Emma: Mm-hmm. So the main piece of legislation that articulates that kind of thing is the Human Rights Act, which makes the European convention on human rights part of U.K. legislation, and if the courts feel that another piece of U.K. legislation is incompatible with the Human Rights Act they can’t just strike it down. What they can do is make what’s called a “Declaration of Incompatibility” and then the government or then the parliament can then decide whether whatever the incompatible part is. There’s no way to force parliament to change a piece of legislation that is incompatible with the Human Rights Act.
The most standout, recent example of that is rules around whether or not prisoners can vote, that’s been a very long-running issue in the U.K. because there was a case that went to the European Court of Human Rights that said a total ban on prisoner voting was incompatible with human rights, but the U.K. government were for a very long time very, very against the idea of changing that rule even a little bit.
It was quite famous, David Cameron said that it made him feel physically ill, the idea of prisoners voting. So that’s a thing that he has done [Laughs] make me feel physically ill, and prisoners voting isn’t one of them. But otherwise all the pieces of legislation, if parliament passed a different piece of legislation that’s incompatible with one they’ve done previously the simple position is that the new piece of legislation takes precedence because our parliament cannot bind itself, so they can change the rules as often as they like.
Andrew: So I know we’re down a rabbit trail, which is my favorite part of these conversations, but I find this just unbelievably fascinating. This is not something I knew. If the Supreme Court finds a declaration of incompatibility, parliament has the option to do nothing? To just be like “alright you said it’s incompatible but ummmm we’re not gonna do anything about that.”
Thomas: Yeah, thanks for typing that out for us.
Andrew: Sternly worded letter!
Emma: Yeah, there’s no legal mechanism to force them to change it. Obviously there’s soft political power, pressure on them. How embarrassing is it?
Thomas: Is the idea that people will… yeah, okay.
Emma: It’s embarrassing that your laws are a breach of human rights and then you’ll be compelled to change them.
Emma: But in the current climate, coming from the same place that the desire for Brexit is coming from, there’s quite a strong group of people who would like us to remove ourselves from human rights legislation entirely, so…
Thomas: Could I try to summarize maybe back to this decision on proroguing parliament?
Thomas: It sounds to me, just to try to put it in terms I understand for myself, it sounds like what should have happened for our gerrymandering decision, which is sure there are things that are nonjusticiable, there are things that should be political questions that the court shouldn’t sound off on. However what should have happened in our recent gerrymandering decision is they should have said well when it’s something like this where the wrong that is happening is going to prevent the political process from even working then the court needs to step in and say you can’t do that. Which is to say, like you were outlining earlier, if this would mean that Boris Johnson could prorogue parliament forever there would never be a chance for anyone to be able to keep him in check, so therefore that’s why they stepped in and said no?
Emma: Yeah, yeah, and that’s underlined by what they said was the remedy in this case. So once they decided that it was unlawful they said the effect of that was that it meant the prorogation had not happened, do-over. It’s not happened, it’s as if the queen was given a blank piece of paper and parliament can reconvene, and it reconvened the day after. The importance of that is all the court said was it’s unlawful, prorogation hasn’t happened, and they then gave the power back to (and where it should be) parliament to then come back and try to rectify it. So they made their declaration and then the court stepped back and gave the power back to parliament where it should have been in the first place.
Andrew: So you got a do-over?
Andrew: That’s [Sighs] Why can’t we live in Britain? [Laughs]
Thomas: Do you get caught in an infinite loop of proroguement, then? Where you just [Laughs] … prorogation, I guess would be the word.
Thomas: Does he just do the same thing again?
Emma: Well he has announced that he’s gonna do it again next week. I think on Tuesday, actually it’s today of time of recording.
Thomas: As of the recording of the episode, yeah.
Emma: Again, he’s saying it’s for the queen’s speech. So even though they were prorogued for a little while they don’t seem to have made any progress on that queen’s speech they said they were dealing with the first time. [Laughs]
Thomas: [Laughs] She’s still hard at work!
Emma: So they’re gonna do it again. This is ridiculous on a number of levels. So first of all I’ve seen some of the reporting that one of the reasons for that is the day that we come back from the prorogation will be the 14th of October, which is the original date that the first prorogation was going to end on, because they don’t want to inconvenience the queen and that was the date she had in her diary to do the queen’s speech, and they were already embarrassed at having lied to her so they don’t want to have any more awkward conversations with her.
Thomas: Wait, was the queen’s diary entered into evidence? What other stuff’s gonna be in there? [Laughs]
Andrew: “Dear diary!” [Laughs] “Doin’ queen stuff!”
Emma: You would think at least initially that if it’s only going to be for a short period of time, so more like a standard prorogation that perhaps you will be able to avoid further litigation, but I would imagine that there may well be further challenges to that second prorogation because the purpose of a queen’s speech is to set out your legislative agenda for the next session as the government.
But you have to remember that Boris Johnson does not currently have a majority in parliament so his legislative agenda is not going to go anywhere. The next thing that’s gonna happen, he’s going to set his queen’s speech and then we’re gonna have a general election and it’s going to be a waste of time, so there’s some people saying that the queen’s speech is actually gonna be the equivalent of a conservative party manifesto, a conservative party propaganda piece where they say all of the things that they want to try and achieve and then we immediately have a general election, so it seems quite pointless to have a queen’s speech at this point from the standard reasons you would have one point of view. Bearing in mind we are continuing to career towards the cliff of Brexit.
Andrew: So obviously I want to get to what the implications are for Brexit, but I can’t let this go. Is there ever – [Laughs] What you just said, again, sounds kind of strange to a U.S. ear.
Andrew: You said ordinarily the queen’s speech is when the Prime Minister lays out his or her legislative agenda, but this is just gonna be a propaganda piece, conservative manifesto. Those would be the same thing in our country. [Laughs]
Andrew: I mean the State of the Union, it’s supposed to be constitutionally the state of … the union and we make the joke, for the past 100 years the line is always “the state of our union is strong!” and it’s just a propaganda piece by whoever the President in power is and so I’m curious how you draw the distinction here.
Emma: Well normally when you have a queen’s speech that would happen when the Prime Minister in question has a majority in parliament, normally because they’ve recently won an election, have a majority, and therefore the agenda that they’re setting out has a realistic prospect of becoming reality. They’ll be able to pass the laws because they have the majority. Boris Johnson has no majority at the moment, and if anyone who’s following parliament, I think he’s had seven votes in parliament so far since he became Prime Minister? And he’s lost every single one of them. He took that record from the previous holder of that record, Boris Johnson, [Laughs] Because he’s lost so many votes!
Emma: So that’s why I would draw that distinction there. If he had just won an election and a massive majority then I would say that the argument for his queen’s speech makes more sense, but he has no majority.
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Andrew: Everything we are being told internationally is that October 31st is the hard deadline for Brexit, and again that the strategic reason to prorogue parliament was to prevent them from coming up with some kind of reasonable transition alternative and really put everybody over the barrel and allow Boris Johnson to cram down, you know, while this plan is terrible it’s not as terrible as just Brexit with no plan so if you have any sense of patriotism you’ll vote for the lesser of two evils, vote for us. So, number one, is that a fair assessment of the situation? If so, number two, what happens now that parliament isn’t prorogued? Are they coming up with alternatives?
Emma: So I’d say that that’s almost right in terms of the underhanded reason as to why they were proroguing. To come back to what I was saying before, so initially before the case he was saying that it was about the queen’s speech but immediately after the judgment he was going, “oh I don’t agree with the judgment but we’re still gonna leave on the 31st of October,” rather suggesting that it was about Brexit all along. So the reason for proroguing parliament wasn’t necessarily to prevent negotiation of a reasonable deal, it was to prevent parliament from stopping him from using no-deal as a threat to the EU, because Boris Johnson’s position is that we need to have this threat to the EU that we’re gonna leave without a deal to strengthen our negotiation position. Now to me that makes no sense, because that sounds like I’m holding a gun to my own head and telling the EU that I’m gonna shoot myself if they don’t give me what I want.
Emma: Which doesn’t make sense to me, but anyway…
Andrew: We’ve all seen Blazing Saddles, so.
Emma: That is evidenced by – so the few days when parliament came back from its summer recess before they were prorogued what they spent that time doing was passing what’s colloquially known as the Benn Act after the member of parliament that introduced it. What that law says is that if we have no agreement by, I think it’s the 19th of October, Boris Johnson has to go to the EU – actually, not necessarily Boris Johnson, but the U.K. have to ask for an extension to the 31st of October deadline.
At the moment if nothing else happens we will automatically leave because of the current legal status on the 31st of October, so parliament passed this act that says that if we don’t have an agreement we have to ask for an extension. The reason they did that is because whilst, yes, a majority of the people who voted in the referendum voted to leave we have had a general election since then and the majority of the people who were elected in that general election were voted in either on a remain platform or a platform that they had to leave with a deal.
So the majority in parliament are against no-deal. That’s why they passed that act. Boris Johnson’s very unhappy with that act and there’s been lots of speculation about whether or not he’s gonna try and get ‘round it some way or if he has to ask for an extension then he’ll immediately send another letter that says “not really” or “takesies backsies” to try and get around it.
Emma: There’s also another court case that’s going on, I think the oral arguments happening tomorrow as of the time we are speaking, the aim of that – that started in the Scottish courts again – the aim of that is because there’s a specific power in the Scottish courts and I’m not 100% up on my Scottish law, but my understanding is that power would allow the Scottish courts to ask for that extension if Boris Johnson fails to do so. That has a fantastic Latin title of Nobile Officium, I think it is. The great thing about that is that can be shortened to “nob off” and has been in the reporting I’ve seen.
Andrew: [Laughs] Even I get that joke!
Andrew: So does that – because this was another issue that I had a hard time getting my arms around. To what extend is the original 2016 Brexit referendum binding, then? It sounds like not at all.
Emma: [Sighs] Oh dear, Andrew.
Andrew: [Laughs] Sorry! We ask the tough questions here!
Emma: 2016 was a hard year. So the 2016 referendum was not legally binding. It was an advisory referendum. Actually, I think this might be – I have no idea what the political leanings of the justices are in our Supreme Court because ours aren’t elected on partisan lines which, [Laughing] I don’t understand your system at all!
Thomas: Imagine! That would be so nice.
Andrew: [Sighs] Oh man. I know, you live in a magical happy land where unicorns run the fields but… [Sighs]
Emma: Yeah, so they say this in paragraph 7 of the judgment. They say, “technically the result was not legally binding,” which I choose to interpret as shade, but-
Emma: Actually on this point – so after the referendum result the electoral commission, which is a body that governs the rules of elections in the U.K., found that the Leave Campaign committed a number of technical breaches of funding in relation to that referendum, and they fined them the maximum amount that they’re allowed to which is around £70,000, which is not much but anyway. If that referendum had been legally binding that would have nullified the result. If it was a legally binding referendum and one side had been shown to have breached the rules that referendum would have been null and void.
Andrew: Wait, you’re kidding me!
Andrew: Does that apply if you’re elected to parliament as well if you’ve committed a campaign finance violation you get kicked out of office?
Emma: Yeah, if it’s a legally binding decision, so yeah.
Andrew: [Exacerbated sighs and laughs]
Emma: So I’ve been feeling that for three years, so anyway… Because it wasn’t legally binding and because the government-
Andrew: We could use that rule here. Go on, I’m sorry.
Emma: Because the government and parliament have treated it as politically and democratically binding since then we’re continuing to treat it as binding even though, as I’ve said, an election has happened since then where there was a clear majority support for either staying or getting a deal.
Significant proportions of the people who voted in that election have died. The only person that I know personally who voted to leave, or rather the only person that I – obviously this makes me one of the liberal elite people, but the only person that I know who told me, who I know – I may know people who did who didn’t tell me – was my father-in-law, who was 87 and he died last year. His vote is counting for more now than my very much alive one and all the millions of 15, 16, 17 year olds who are now old enough to vote who weren’t at the time. It’s all extremely frustrating.
It’s a decision that never should have been put to the public, and I include myself in that. It was too simplistic, ridiculous decision to put that to the people.
Emma: But it wasn’t ever about the people, it was about Tory Party infighting, that’s the reason that referendum happened in the first place. [Sighs]
Andrew: I’ve said it before and I’ll say it again. [Laughing] Democracy just doesn’t work. So what happens now? Parliament is back, they’re probably gonna be prorogued for three days for a queen’s speech, but not for five weeks. What are the potential paths between now and the end of the month, the end of October? If you wanna throw some probabilities on that we would love to get some predictions, but just knowing what the potential outcomes are would be really, really useful.
Emma: I’m not going to predict anything anymore.
Emma: I mean, before-
Andrew: Oh, come on! This is a prediction show!
Emma: So for example, on the judgment – we mentioned earlier that this was a surprising judgment to you. Before the judgment no one here could really call it. If we thought it possibly they were gonna find the Prime Minister to have acted unlawfully, but it would’ve been a split decision. Some of the justices on that case had heard the first Brexit case and they had dissented in that one so we expected it to be a split decision, so for it to be that unanimous was a surprise.
But in hindsight when you actually read the judgment it’s really sensible to me and quite politically conservative. I don’t wanna make any predictions in relation to that. In terms of ways it could go, if the opposition could get its act together, which is a big ask, they could bring a vote of no confidence against Boris Johnson. What they would then have to do is if they won that vote, and it’s a bare majority, they could then form what’s called an emergency parliament with a temporary Prime Minister to either – if they really had the power of their convictions, revoke Article 50, which is the article that we triggered to start this ridiculous stop-clock. Because that’s the thing. We could, if we wanted, just pull that. We could unilaterally tell EU “actually we’ve changed our mind,” we could do that.
Andrew: Yeah. My understanding is that the “revoke Article 50” is essentially just remain.
Andrew: It says nope. Yeah, okay.
Emma: Let’s forget this ridiculous thing, this has been a disaster, let’s just forget about it. Unfortunately there’s quite significant opposition to that position.
Andrew: Right. So that’s door number one.
Emma: One of the main political parties, the Liberal Democrats, have come out as the “pro-revoke” party, which I’m hoping might shift everyone slightly closer that way. Whilst there’s not a majority for it the fact they’ve come out strongly in that position might shift the rest of them slightly closer that way.
Emma: It’s like an Overton Window type way. So if they could get their act together-
Andrew: Our Overton Windows here only move to the right, they never move to the left so…
Emma: [Laughs] So that’s door number one, but that’s contingent on the opposition successfully having a no confidence vote and agreeing on who should be the emergency leader, because that is a sticking point at the moment. They can’t all agree amongst themselves who would be the leader.
Obviously the Labor Party says it should be Jeremy Corbyn because that’s the biggest opposition party, but other people are saying no, it shouldn’t be Jeremy Corbyn ‘cuz he’s too divisive. That’s the reason that the no confidence vote hasn’t happened, and the reason they need to be sure who’s gonna be the leader is if they can’t agree in emergency parliament then a situation similar to the proroguing would occur. Because if there’s a no confidence vote and then there’s no emergency parliament there has to be a general election and then there would be a long period of time which would go way past the 31st of October where there’s no parliament sitting and they can’t do anything about no deal.
Andrew: So what happens in that circumstance?
Emma: Well in that circumstance we would leave by automatic operation of the current law and we would crash out of the EU with no deal.
Andrew: Even though parliament has passed the law basically saying you can’t leave no deal?
Emma: Well that’ll probably be determined by the current litigation that’s going on about whether or not someone other than Boris Johnson can ask for an extension.
Andrew: Got it, got it. Okay, so door number one is revoke, go back pre-2016 and remain.
Andrew: Door number two is everything falls apart and no deal Brexit, you just leave without any kind of transition. Are there other doors?
Emma: Yeah, so the third door is that we agree a deal with the EU and leave on those terms. Now that doesn’t mean the end of it because when we say “deal” it doesn’t mean that we’ve agreed everything at that point, that is a sort of starter agreement which would follow by years and years of further negotiation. So that’s door number three, if you like, but obviously the deal that they spent several years negotiating originally got voted down quite a few times and the government are now arguing against parts of that deal that they negotiated themselves, which just [Sighs] nonsense on nonsense.
Boris Johnson has, today, come out with some of his exciting new plans for the withdrawal agreement. The biggest sticking point with the old agreement was something called the “Irish backstop” which is – so obviously Northern Ireland is part of the United Kingdom and it has a land border with the Republic of Ireland, that is our only land border with the EU should we leave. So if we were to leave, if we didn’t do anything else about it there would then be a hard border there. Now the idea of having a hard border between the Republic of Ireland and Northern Ireland – [Laughs] There was some issue-
Thomas: Someone’s tried that before, I’m blanking on who.
Emma: There’s been some issues there historically with that sort of thing, and there was lots of very difficult, hard won agreements there to get to the peace that’s currently enjoyed there and we obviously don’t want that to collapse. That whole issue was something of an afterthought for most people in relation to Brexit, they might be affected in that way. So the original withdrawal agreement had arrangements where Northern Ireland would retain a lot of elements of EU law to make sure that border didn’t become a hard border, but the hard Brexiteers don’t like that because they say that would secretly keep the U.K. locked into the rules of the European Union, the terrible awful rules of the European Union like employment rights and things like that. [Sighs] It’s ridiculous.
Anyway, so Boris Johnson has come out today with new plans, so people don’t like the idea of one hard border – I’ve not read it in full detail, but from what I have seen of the proposals, the proposals are now rather than one border we’ve got three different borders and like a DMZ style zone in the middle?
Andrew: Yeah that also hasn’t worked so well historically.
Thomas: Is there a moat involved? ‘Cuz uh…
Emma: So instead of having just one hard border he’s proposing sort of three weird different borders. It’s almost as if he’s like “well, you said you didn’t want one hard border so I’m gonna go for several hard borders,” and he’s gonna go to the EU with that to negotiate with them. But, uh…
Thomas: You know, my new conspiracy theory is that you guys caused Trump to distract from how stupid this is.
Thomas: I don’t think you’re getting enough credit for just how stupid this whole thing is. You’re lucky that Trump happened shortly after this.
Emma: I think you’re still managing to be sufficiently ridiculous to take all the attention. I saw him today, today he was committing impeachable offenses-
Thomas: No, you’re right!
Emma: -to try and distract from the impeachable offenses that he [Laughing] on live TV!
Thomas: All over the place. But that has been, I think, a good distraction from just how stupid this Brexit thing really is. When you dig down into it, the bottom line sounds to me – correct me if I’m wrong – it sounds like there could be a few sensible people who are like “okay, clearly this was a mistake, let’s not do this” and then everybody else is like “yeah, but we started doing it, so let’s just keep doing the dumbest impossible thing that’s not going to work and cause all these problems.” Okay!
Emma: Yeah, but there are also a lot of people who strongly believe that the EU is the devil incarnate and we need to break free of the control.
Emma: A lot of the blame for that rests with Alexander Boris de Pfeffel Johnson, ‘cuz he used to be a reporter at the Telegraph, based in the EU, and he used to write all of these scare stories about the terrible control about the EU.
Thomas: Just make up stories about it, yeah. [Laughs]
Emma: Yeah. The hysterical thing here is-
Thomas: This is just [Sighs]
Emma: The people who are very much in favor of Brexit are like, “well, we should still crash out with no deal and we’ll be fine ‘cuz we’re the greatest country in the world,” etcetera, etcetera. So it’s all about taking back control. They’re all absolutely fuming that the Supreme Court decided that their parliament is sovereign! [Laughs]
Emma: It’s ridiculous!
Thomas: Well, we’re out of time but I think we need to get to the real controversy in this whole thing which is that Andrew, in the last episode said you’re Scottish and yet I understood nearly every word you said so explain yourself.
Emma: So, here we go. I am Scottish – I lived in Scotland for the first two years of my life and then I lived in England for the rest of it so I have this strange sort of – it’s not bilingual, I don’t know what the term would be-
Thomas: No, no, it kind of is, though. [Laughs]
Emma: -so I’m able to do this thing which is [Scottish Accent] switch my accents quite significantly. But the only reason I’m able to do that at will with you guys is because you have American accents. If I was speaking to someone with an English accent I’d find it very difficult to speak like this.
Emma: I usually have no conscious control over it, but there you go.
Thomas: Huh. There you go. Because of a mirroring thing? You subconsciously mirror-
Emma: Yeah, I think that’s what it is. But also it applies to my dog, that doesn’t make sense. Apparently, yeah.
Thomas: Your dog is Scottish. Oh no! [Laughs] I’m just teasing, okay, but that explains it, because every time I’ve heard Scottish people talk I don’t get 94% of the words and it’s very difficult, but that’s just me. [Laughing] Alright, well this was fascinating! A window into, it turns out not just our – we don’t have a monopoly on stupid over here!
Emma: No, we’re having a competition.
Thomas: Oh, yeah. [Laughs] It’s a race to the bottom! We’ll see who wins, can’t wait!
Thomas: Thanks so much for that explainer, I’m certainly not any – I’m both less and more confused [Laughs] I think is the answer. I know more about what’s happening but still confused as to why it’s happening, but we’ll keep an eye on that and thanks so much for joining us. I think we will have to – I’m still on the edge of my seat over T3BE in a few minutes here, so we’ll have to find out the thrilling conclusion, but that’ll wrap up the main segment here so thank you very much for that explainer!
Emma: No problem, you’re welcome.
Thomas: Okay, it is time for Top Patron Tuesday! I’ll start us off, I wanna give a giant thanks to the patrons over at patreon.com/law, hope you’re enjoying the marathon episodes we’ve been giving you lately and all the bonus goodies, the Q&A question thread, all that stuff! And Law’d Awful Movies coming up within a few weeks, here.
Thomas: Awesome, alright thanks you fine, fine top patrons, you’re the best! Okay, now it’s time for T3BE.
T3BE – Answer
Thomas: Alright, here it is! T3BE, let’s find out who wins! Is it you, is it me, or is the bar exam? And I think it might be the bar exam. We’ll see.
Andrew: [Laughs] You know, they say some days you get the bar exam and some days the bar exam gets you. Alright, Thomas, Emma, this was a question about a bright 12 year old child who is nevertheless at a daycare center after school and sneaks out of the daycare center, the problem specifies that the daycare center had a reasonable number of qualified employees and the employees were exercising reasonable care to ensure the children in their charge did not leave the premises. Child sneaks off the premises onto the premises of a nearby corporation which has a manmade pond. There are signs posted that say “thin ice, keep off,” nevertheless this child sneaks onto the pond, falls through the thin ice into the cold water, suffers from shock, would have died if not rescued by a nearby passerby and then sues the corporation for negligence. Who is likely to prevail? I love this question because not only Thomas and Emma did you pick separate answers, but I would’ve picked a different answer as well.
Andrew: So we’re gonna go through each of those three answers and then talk about the right one.
Andrew: So, answer A.
Andrew: Emma, this was your answer. You said the child because the corporation owes a duty to keep its premises free from dangerous conditions. Turns out that’s an incorrect answer. Although a corporation does have a duty to keep premises free from dangerous conditions at common law, dangerous conditions exist where the landowner has reason to know that trespassers are in dangerous proximity to the condition and they’re unlikely to appreciate that risk. Even then, your duty is a duty to exercise reasonable care.
Thomas: Hmm. It’s gonna be C, isn’t it? Ah man, I almost chose that.
Andrew: To warn trespassers of the danger, which they did! They posted a lot of signs that said “thin ice, keep off” so not an unreasonably dangerous condition. Answer B, this is the answer I would’ve gone for, which you guys described as – I think both of you described as an “attractive distractor” because it had the phrase “attractive nuisance” in it. Because tort law is not my wheelhouse, but I know that for example when you have a swimming pool in your backyard that is an attractive nuisance and if the neighborhood kids come by and sneak over the fence and play in your pool and suffer some sort of injury that under common law you are liable under the doctrine of an attractive nuisance. Here, you know, look it’s a pond, it’s used for ice skating, it was described as kind of this neighborhood hangout, but the bar exam would’ve come down on me like a ton of bricks there, and here I’m gonna have to read because I can’t even – I’m not sure I agree with this.
Andrew: [Laughs] It says for a condition on land to be considered an attractive nuisance there must be evidence that the landowner had reason to know that children are likely to trespass as well as evidence that the injured party did not appreciate the risk involved. No such evidence is mentioned in these facts, there’s no suggestion children often stray from the daycare center, the corporation should prevail because the obviousness of the risk buttressed by the warning signs should have been appreciated by a (quote) “bright 12 year old child.”
Thomas: [Groans] I almost did it, too! [Sighs]
Andrew: So that leaves us between C and D, Thomas you went with D, you are correctly judging that the right answer is in fact C.
Thomas: That would’ve been the greatest accomplishment of my life if I had stuck with that one! [Sighs]
Andrew: Yeah, and I would’ve called you out-
Thomas: How much do I have to pay Brian to change history for me? No, I can’t.
Andrew: I would’ve said you beat two lawyers!
Thomas: Sanctity of the game.
Andrew: [Laughs] Go back in time!
Andrew: Correct answer C, it is not that – there was no negligence by the daycare center ‘cuz the fact pattern specifies they had the right number of employees, children didn’t typically get out, they exercised the proper reasonable duty of care. The whole bit about pure comparative negligence 100% red herring, attractive distractor in the question, has nothing to do with the question. It’s only a question of did the corporation have a sufficient duty that they breach by erecting an attractive nuisance or did the corporation abide by its duty of care and the bar exam is saying it’s C, trespasser failed to appreciate the risk. It was obvious, there were warning signs up, come on you’re 12. You were so close! You went through, you were like “yeah, they’re 12, they’re not 8”
Thomas: Augh, so close!
Andrew: Oh you were right there. This would’ve been-
Thomas: I would’ve retired! I would’ve been like, I beat not one lawyer but two lawyers! But no, I didn’t.
Andrew: Yeah, you have two children but I would daresay this would be one of the three best moments of your life had you been able to best-
Thomas: One of the one. Yeah, one best moment.
Andrew: [Laughs] There you go! Right.
Thomas: So close.
Andrew: So there we go, we’re all losers.
Thomas: Well that really is what, you know, that’s the best outcome actually. We’re all wrong.
Andrew: That is, I think, the theme of this show. We’re all wrong. [Laughs]
Thomas: And we’re all wrong in a different way. That’s awesome. [Laughs] We’re all wrong in a different way, what are the odds? Well Emma, thanks for playing along. I feel like nobody should really be embarrassed about this one, this was a tough question. A really difficult one.
Andrew: Yeah, it’s a mulligan. We’ll do a Donald Trump do-over until we get a hole in one.
Thomas: [Laughs] Alright. Well let’s leave a space here for Andrew to hop in his time machine and declare the winner of this week’s T3BE.
Andrew: Well Thomas, as predicted a lot of folks had trouble with this question. We had answers all over the map, I think the most common were B and D, but a handful of people got it right including our old buddy Psychopomp Gecko, who says “Answer C. The kid snuck out past people who were exercising reasonable care, and past warning signs about thin ice. At least they didn’t get a troupe of Oompa Loompas singing about the mistake they made.” Well, congratulations on getting the question right. Very, very difficult one and congratulations on being this week’s winner of T3BE. Everyone give Psychopomp Gecko a follow on Twitter if you haven’t already, that is @PsychopompGecko, spelled the way it sounds, and congratulations on being a hard question winner!
Thomas: Alright what an action packed week.
Thomas: How we keepin’ up with this? There’s so much week in week out, but we’ll see everybody on Rapid Response Friday and then we’ll see everybody at the live show!
Andrew: Yes we will.
Thomas: It’s this weeeeek! Buy tickets, there’s still a couple left.
Andrew: Yeah, a couple.
Thomas: Alright, we’ll see everybody then!