Talk:R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland

Quality assessment

May I invite whoever did the quality assessment to review and re-rate? The article as it stands strikes me as GA standard. --John Maynard Friedman (talk) 10:25, 27 September 2019 (UTC)

'Significance' section

I feel that the second paragraph of this section is very one-sided. Sure those things happened, that's what opposition parties do - it would be more notable if thy didn't. But other things happened too. Government supporters cheered and applauded Johnson. Johnson's invitation to hold a vote of no confidence to trigger an early election was spurned, etc. For now, I've added a POV template. -- DeFacto (talk). 16:18, 27 September 2019 (UTC)

You could contribute such material to restore balance? --John Maynard Friedman (talk) 17:56, 27 September 2019 (UTC)

@John Maynard Friedman: realising it is unbalanced doesn't mean I have the ability to fix it, which is why I tagged it, hoping that someone would step up to the challenge, but perhaps I will have to have a go. -- DeFacto (talk). 21:08, 28 September 2019 (UTC)

The section was written, mostly, before Parliament recalled for Wednesday. We could insert some stuff from the AG's question session, but the bombastic tone that Parliament devolved into for the latter half of the question session might make it hard to separate the wheat from the chaff. Sceptre (talk) 22:02, 27 September 2019 (UTC)

@DeFacto:: how's the new paragraph look to you? We have three articles on current events that are very closely interlinked, and trying to ascertain what should be in each article isn't an easy question; IMO, I think the aftermath section should just focus on the aftermath of the ruling, and the Tory calls for an election are better for the article about prorogation. Sceptre (talk) 22:32, 27 September 2019 (UTC)

@Sceptre: balance is still absent. We need to mention Johnson's reaction and that of his supporters and allies. And we also need to cover criticism of the judgement. -- DeFacto (talk). 21:03, 28 September 2019 (UTC)

@DeFacto: I'm wary that if we include too much of the Conservative reaction, we may be providing false balance. Reliable sources show the opinion to the ruling to be basically split into two major groups: "we agree with the ruling and Johnson should resign" (SNP/Lab/LD/Farage(!)) and "we disagree with the ruling but we'll respect it" (Con/DUP). The opinion of the judgment as "remoaner elitism" that doesn't seem too be shared by anyone on the same level of "major party leader" (JRM is the closest, and even he got pushed back to the party line pretty quick by the law officers), and there is a paucity of coverage of those views. For the purposes of providing proper weight to opinions, I think restricting the reaction viewpoints to major party leaders (i.e., Con, Lab, LD, Brexit, SNP) is the right way to go; I'll add Johnson's reaction in short course. Sceptre (talk) 01:03, 29 September 2019 (UTC)

@Sceptre: we don't need "too much" of anybody's reaction, we need a duly weighted balance. IMHO the scales are currently leaning heavily to one side. -- DeFacto (talk). 10:20, 29 September 2019 (UTC)

@DeFacto: My contention is that the scales are properly balanced, though some leeway can be given one way or another as to the amount of coverage. RS coverage of reactions tend to cover the reactions of Johnson, Corbyn, Sturgeon (or Cherry), Swinson, and Farage; those five are also "major party" leaders, which fits nicely as a bright-line. If four out of five of those think the judgment is a resignation matter (if not for Johnson, then Cummings), then the due weight balance is four out of five, and trying to tip the scales so the one out of five is equal is the definition of "undue weight". Sceptre (talk) 14:43, 29 September 2019 (UTC)

@Sceptre: my concern is that we are not looking at a balanced cross-section of sources. There are two sides to this argument - and the coverage depends on the choice of source. I see 12 references to the Guardian in this article and 2 to the Independent - yet only 1 to the Times and none to the Telegraph. I suspect that if we moved the source balance further to the centre that we would see a more neutral article. -- DeFacto (talk). 16:36, 29 September 2019 (UTC)

@DeFacto: That's solely because the Guardian and the Independent don't have a paywall, and you've got to work with what you've got. I don't think there is a problem using the Graun or the Indy, as once you get out of the red tops, the news coverage is typically reliable and neutral. I think, as far as documenting reactions to the judgment go, the "major party leader" rule allows for a decent spectrum of opinion to be represented across the spectrum without documenting what every man and their dog feels on the issue. Sceptre (talk) 17:26, 29 September 2019 (UTC)

@Sceptre: there are two problems with that. 1: Although news sources with a clear political leaning may be reliable, they clearly cannot be relied upon to be neutral. 2: A biased article cannot be justified by the cost of accessing balancing sources. -- DeFacto (talk). 19:03, 29 September 2019 (UTC)

@DeFacto: Is there any glaring omission to the section that makes the section non-neutral, though? We include reactions to the case from five of the six major GB party leaders, from Corbyn on the left to Farage on the right. If the sources say that everyone except the government is broadly united on one point, then that's what the article should say. Sceptre (talk) 22:02, 29 September 2019 (UTC)

@Sceptre: if we accept the scope of the section to be just 'political reaction' - to which I have just changed its title - given that the current content is limited to just that, then the main gaps in coverage, I think, are lack of criticism of the judgement itself, and lack of comments from politicians who supported the prorogation and who support Johnson's objectives to secure a good Brexit deal. We also need to try to get a politically balanced range of sources. -- DeFacto (talk). 18:32, 30 September 2019 (UTC)

@DeFacto: But are those politicians who supported prorogation of sufficient seniority and prominence? We shouldn't be trying to force in the opinions of, say, AMW or Richard Braine just to satisfy some "false balance" while those parties are languishing in the polls. Farage, on the other hand, is prominent and senior enough to be included enough and not violate WEIGHT; he has been generally supportive of Johnson, and even supported the prorogation last month; him changing tack is unsurprising and does make looking for a 50:50 balance harder, but that's where we are. Sceptre (talk) 19:09, 30 September 2019 (UTC)

@Sceptre: I'm not talking about false balance, I'm talking about real balance. And it isn't seniority that matters, it is prominence of coverage in the RSes that matters - per WP:WEIGHT. It could be that a party leader holds a minority view, in which case it shouldn't be included - or minions might hold views which are widely covered, which therefore should be covered. -- DeFacto (talk). 19:53, 30 September 2019 (UTC)

But the only major party leader that holds a minority view on the judgment is... Boris Johnson. The applicability of the seniority question to WEIGHT here is to not present the views of perennial backbenchers, which might've only been picked up by one or two news sources, as having equal weight to official responses from major party leaders, which were picked up by nearly all of them. There's not much more that can be done here to have a representative overview of majorly politically held opinion, especially as public polling on the Supreme Court ruling was about 50/30 in agreement of the ruling; as a ratio, this is the same as the word count for Johnson (40) vs Corbyn/Sturgeon/Swinson (61). You could suggest removing Farage if you want, but I think that would upset the Remain vs. Leave balance at the same time. Sceptre (talk) 21:29, 3 October 2019 (UTC)

Change of section title

@DeFacto:, it seems to me that a better section title would be Aftermath since none of the items listed are significant (in the constitutional sense): I have changed it accordingly. Given that change, I wonder whether the POV tag remains valid? --John Maynard Friedman (talk) 17:48, 27 September 2019 (UTC)

A "Significance" section will be appropriate at a future date but we must wait for the most reliable constitutional expert sources to decide what it is before we leap in. --John Maynard Friedman (talk) 17:56, 27 September 2019 (UTC)

This article would be improved by noting that for at least some lawyers and constitutional experts (of which I include myself, a solicitor), this judgment has already acquired significance for its alteration to the principle of justiciability in English law. One only has to compare the High Court judgment at first instance with that of the Supreme Court on appeal. Although not explicitly stated, to quote one common legal textbook as to what many lawyers would have considered to have been the legal position also in respect of prorogation up until this judgment: "The powers mentioned by Lord Roskill as non-justiciable in the CCSU case (Council of Civil Service Unions (CCSU) v Minister for the Civil Service [1985] AC 374), relating to matters such as the dissolution of Parliament and the appointment and dismissal of ministers, are central to the democratic process and in law are the prerogative of the head of state. They are unlikely to be justiciable in the absence of a fundamental remodelling of the separation of powers." Indeed, the argument made by the Prime Minister in Parliament the day following the Supreme Court judgment, that the decision to prorogue was non-justiciable because it was political, is essentially the same as that made by Lord Keith in Gibson v Lord Advocate [1975] SC 136, as cited in the High Court's judgment: "The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State." That is the crux of why for lawyers this case is already proving controversial. I cited an article published in the Financial Times on 25 September 2019 that actually included the views of lawyers and academics on the case, and for which the second line below the headline is: "Supreme Court intervention also seen as naked judicial power grab". There is clearly a distinct possibility that this case may eventually acquire even greater significance as a landmark in the remodelling of the separation of powers in the United Kingdom. I think that it is unfair to remove reference to the views of actual lawyers that have already been published in a newspaper of record as to the constitutional significance of this case; and that without noting that the case has immediately created detractors amongst the legal profession, it is impossible for a layman to comprehend why this case is legally significant. I suspect that my edit has been deleted by Sceptre because these facts do not accord with her political views. --Sufcmad (talk) 21:45, 27 September 2019 (UTC)

The problem is that there is a massive WP:WEIGHT problem if we try to portray a Supreme Court ruling and the opinions of other legal professionals—even lower courts—as equal; it's like the difference of opinion between a thoracic surgeon and a GP when it comes to heart problems. There's also an WP:NPOV problem by only including the opinions of those who opposed the ruling; I read the FT article, and you missed out the several positive opinions of the case (such as Bogdanor, who was previously supportive of the prorogation!). We also have a WP:CRYSTAL problem by a Wikipedia article trying to assert too much significance to a ruling that came out three days ago. :I think the articles for Obergefell v. Hodges and the Insular Cases, though they deal with American cases, are good places to start; for the former, the only dissenting legal opinions we include are those of Roberts/Alito/Scalia/Thomas, with the rest of what would be a "significance" section talking about what happened in the political sphere; for the latter, we talk about how jurisprudence has evolved in the past hundred years. Admittedly, though, the case being 11–0 makes finding opinions which could pass the WP:WEIGHT test hard, but maybe that's the point? I don't think anyone before Tuesday expected a unanimous ruling (especially as Miller I was "only" 8–3;) and I think most legal commentators expected at least Reed to find prorogation lawful, so maybe the 11–0 ruling is reflective of learned and neutral views on the matter. Sceptre (talk) 22:02, 27 September 2019 (UTC)

My point is to mention the legal significance of the case. It is such a stark change from what had been the position in English law as to justiciability beforehand. It is simply because the question of the justiciability of prorogation had not been tested in this way before because its exercise had not been challenged. The CCSU case has an extensive Significance section because it is important in the UK constitution, and this case almost certainly will be as well, if it hasn't become so already (undoubtedly new constitutional law textbooks will be published in due course citing this case). The fact that it was 11-0 and so strongly against the High Court judgment (given by the next most senior judges in England and Wales: the Lord Chief Justice, the Master of the Rolls and the President of the Queen's Bench Division) demonstrates why legally and constitutionally it is important and so radical. On the one hand, the circumstances of this case are "quite exceptional" as mentioned in the Supreme Court judgment, yet at the same time it may redefine the limits of justiciability in other matters relating to the exercise of the Royal Prerogative (it having been until now the accepted legal position that political affairs and matters of "high policy" are not justiciable by the courts). The fact that the government had no written legal advice regarding the use of prorogation, which the Supreme Court criticised the government for, demonstrates perceptibly how accepted the position had been until this decision. In the main article, in fact, I could cite both of the contrasting viewpoints from the professors of law at Cambridge and Oxford mentioned in the article to really help a casual lay reader of Wikipedia understand: (“This will be seen down the years as a judgment of huge importance with major implications for our system of government,” said Catherine Barnard, professor of European Union and employment law at the University of Cambridge. “The Supreme Court has looked over the edge and pondered what our constitution might look like if we have players who don’t play by the rules and, for example try to suspend parliament for a long period. They’ve set down an important ruling to stop that happening in future.” And from another viewpoint, as I quoted: “I do think the court has overstepped the mark,” said Richard Ekins, associate professor of law at Oxford university and head of the Judicial Power Project at the Policy Exchange. “It is a startling judgment and I think it is badly mistaken. It’s a very, very bold step by the court into the territory governed by the political constitution and shows a clear loss of faith in the political process. The court has chosen to assert jurisdiction in an area I and many other lawyers didn’t think that it had.”) Professors of law at Oxbridge do not use words like "huge importance with major implications for our systems of government" or "startling" or "a very, very bold step by the court into the territory governed by the political constitution and shows a clear loss of faith in the political process" lightly. English law works on precedent, which you would understand if you were legally qualified. If this is a major change to the UK constitution, how can it not be significant?--Sufcmad (talk) 23:45, 27 September 2019 (UTC)

As I said at the beginning, it is beyond doubt that this is milestone, maybe even a thousand milestone in British jurisprudence. WP:Wikipedia is not a newspaper, so it seems to me very clear that we should not leap in with instant reactions like some 24-hour rolling news program, "give me a reaction, any reaction". The 11-0 decision and the very carefully worded judgement tells me that the Court was fully aware of the magnitude of its decision. So we certainly need to stand well back and wait for the most eminent theoreticians to evaluate the decision. Right now, there is too much factionalism to ensure a dispassionate assessment. --John Maynard Friedman (talk) 23:14, 27 September 2019 (UTC)

I'm afraid that I would interpret your final sentence as meaning that it doesn't suit your political views to have this mentioned on the main page, despite its obvious legal significance to lawyers who study and interpret English law. A decision to judicially review prorogation may not arise before the courts again for decades (and a case not having arisen before now so far as I'm aware) and so this case will almost certainly be of lasting significance in that sense. Furthermore, any future challenge to the use of the Royal Prerogative will also almost certainly cite this case because of its change to the scope of justiciability. I fail to see why even a short reference to these matters cannot reasonably be stated on the main page now, other than because certain people do not want it to be heard.--Sufcmad (talk) 00:35, 28 September 2019 (UTC)

I would argue that the continued deletion of the significance section that I published earlier today by Sceptre is attempted political censorship because this is a case that deals with the separation of powers under the British constitution. Deletion of this section means that nowhere does the article explain its major implications for the separation of powers, which are already obvious and cited by reference to a newspaper of record. Again, I would note that Sceptre is not legally qualified and does not understand the importance of this case in English law. Can this be appealed to dispute resolution?--Sufcmad (talk) 15:40, 28 September 2019 (UTC)

This is nothing to do with "political censorship" and everything to do with the fact that you are trying to turn the article into your personal essay. We aren't doubting your credentials or expertise at all, but Wikipedia is not a place for your essays; it is an encyclopedia. At the moment, the judgment is only four days old. That's a long time in politics, and we can write about the political impact until the cows come home, but we won't know what the legal impact of the ruling truly is for years, and any attempt to glean any future precedent the case has is like staring into a crystal ball.

Not only that, but your essay also violates WP:NPOV in that it only considers the viewpoint that it's a radical piece of judicial activism, and not the alternative viewpoint that it was a well-reasoned judgment that relied on a long corpus of constitutional precedent (I understand that David Allen Green has been making the media rounds with this viewpoint). You only include the opinions from the FT article that agree with the conclusion that you've pre-written. Again, that's fine for an essay—although it probably wouldn't get you a first—but not an encyclopaedia.

I suggest that you read the advice for expert editors, and possibly look at the Law WikiProject to see how they do things with law articles. But as it stands, your essay remains exactly that, and your contribution isn't really suitable for inclusion in Wikipedia without heavy work. Sceptre (talk) 14:56, 28 September 2019 (UTC)

I do not understand how many scholarly or newsworthy references are required to discuss the significance of this case but perhaps I can cite more. Take Mark Elliott, Professor of Public Law and Deputy Chair of the Faculty of Law at Cambridge on his blog: "On one analysis — including, arguably, the Court’s own — the judgment amounts to nothing more than an affirmation and application, albeit in a politically fraught context, of orthodox constitutional law. On other views, the judgment breaks new legal ground — and, depending on one’s perspective, in doing so either strikes a much-needed blow for constitutional principle or results in wholly improper judicial interference in the political arena." Or this Daily Mail article supplying the contrasting views of Professor Richard Ekins (mentioned above) and Peter Oborne. This article in Prospect magazine calls it "the most significant judicial statement on the constitution in over 200 years". It also mentions Miller I, which I note has a significance section: "Miller & Cherry is a case that will be discussed centuries from now. It is considerably more innovative, and more significant, than the first Miller case of 2017, in which the same court decided that the government could not use its foreign affairs prerogative to give notice of the UK’s withdrawal from the EU but needed first to obtain an Act of Parliament." And yet you continue to delete any reference to this case's legal or constitutional significance because some of the viewpoints expressed by constitutional experts do not agree with your political views.--Sufcmad (talk) 16:30, 28 September 2019 (UTC)

@Sufcmad:, wp:assume good faith. Your comments merely underline my point that we are far too close to the judgement to assess its significance properly. It really does worry me that you would propose WP:false balance in the article by comparing and contrasting the analysis of a Professor of Law at Cambridge with that of a journalist. --John Maynard Friedman (talk) 16:14, 28 September 2019 (UTC)

@John Maynard Friedman:, I do not agree with your point that "we are far too close to the judgement to assess its significance properly". I have cited multiple law professors of Oxford and Cambridge who have already commented publicly on its significance and stated their opinions. How long should we wait for: until new legal textbooks have been published that refer to the fact that this case has generated significant controversy, as they undoubtedly will? I feel it is crucial to note that the judgment has already produced diverging viewpoints amongst the legal community, including some strongly dissenting voices, as otherwise the article does not give due WP:WEIGHT to the views of those who are best placed to comment - the "most eminent theoreticians" as you mentioned above. Without a significance section the layman can only puzzle as to why this case is regarded as legally and constitutionally significant.--Sufcmad (talk) 17:45, 28 September 2019 (UTC)

(Restart indent) I don't suggest that it is too early for anyone to explain its significance, just too early for wp editors. I guess I could support a very sparse section that gives the assessments of the most respected legal authorities with the bare minimum of supporting text. We should definitely not include uninformed comment by journalists it politicians. The bar for wp:RS must be very high. --John Maynard Friedman (talk) 17:14, 28 September 2019 (UTC)

And, at the very least, it has to include various viewpoints, not just ones that Sufcmad agrees with. The fact that he thinks that Peter Oborne, who I don’t think has any academic reputation in either constitutional history (e.g. Bogdanor) or law (e.g. Barnard, Edkins), is on a par with those who do is making me fear that he’s using his qualifications as a method to browbeat other editors into accepting his opinionated essays instead of actually contributing encyclopaedic content to the article.

My opinion is that there probably won’t be a need to talk about the legal significance of the ruling in this article—and we won’t have the supporting sources for it anyway—until it starts appearing in textbooks or some future landmark court ruling utilises its precedent. Sceptre (talk) 19:22, 28 September 2019 (UTC)

The political significance can go in #Aftermath. I can see merit in Sufcmad's underlying point that, since serious legal experts have opined on its legal and constitutional significance, we can and should report that. But I also agree with you that it cannot be an editorial essay, it should be the minimum needed to say who said what where and what qualifies them to say so. And the medium must be impeccable, certainly not any of the tabloids (IMO,nor even any of the broadsheets - for example the Telegraph and the Guardian have such clear editorial lines as to rule them out too). --John Maynard Friedman (talk) 23:28, 28 September 2019 (UTC)

I think the best thing to do is to wait until law journals start picking it up and discussing it; I don't believe the the news cycle (and the desire for mythical balance) and reasoned legal analysis really go well together. Sceptre (talk) 01:03, 29 September 2019 (UTC)

References

Constitutional Law Association

I notice that this association has no article, which (as m'learned friends might say) is a prima facie indication that it is wp:not notable and so not deserving of inclusion. Given that such a short time has elapsed since decision and that we have a consensus view that Wikipedia should hold back from knee-jerk rushes to judgement, I really do have to question whether this material should be included. Listing it in 'Further reading' seems to me to be just a way to evade WP:BLOGS. The notability of any of its members has not been demonstrated and so I see no difference in status between these blogs and the other individual blog that I have already deleted.

I propose that we delete that subsection. --John Maynard Friedman (talk) 10:35, 1 October 2019 (UTC)

I notice that the anon IP who added the "other blogs" (which I reverted), has now deleted the whole blogs section, presumably on the very reasonable grounds of "all blogs or no blogs". If that was indeed the logic, it seems rather indisputable. --John Maynard Friedman (talk) 11:36, 1 October 2019 (UTC)

I've got no problem with it. Sceptre (talk) 19:25, 2 October 2019 (UTC)

Discussion at Talk:Self-coup#Boris Johnson

 You are invited to join the discussion at Talk:Self-coup#Boris Johnson. Has the UK suffered a coup d'etat? -- DeFacto (talk). 12:04, 1 October 2019 (UTC)

The Queen gave her consent

Do we have an article or section somewhere that says that the Queen didn't really have a choice (according to constitutional convention) but to act as advised by her Privy Council. Neither the Privy Council nor the Queen-in-Council article seems to say so explicitly (or at least not that I can find). A footnote to that effect would be useful, I think? --John Maynard Friedman (talk) 19:27, 4 October 2019 (UTC)

Flagcruft in section "Summary of Judgements"

MOS:FLAGS says essentially that flags should be used sparingly if at all. In particular, MOS:INFOBOXFLAG bars them completely in infoboxes and MOS:FLAGCRUFT says "Do not emphasize nationality without good reason". I can't see that they add anything other than decoration to the table in that section. Is there a convincing reason why I shouldn't just delete them? --John Maynard Friedman (talk) 15:08, 21 October 2021 (UTC)