It seems to me there's a fundamental problem for the real-world-effects test: The effects of prorogation on parliamentary action, including scrutiny, and so the effects on the "real world", are not knowable or perhaps even reasonably foreseeable at the time it happens.
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- Replying to @mattberkley @tarunkhaitan and
It might seem inappropriate to expect those who argue for Parliamentary sovereignty to have the burden of proof on them to show that the hypothetical and/or predicted effects would take place.
1 reply 0 retweets 0 likes - Replying to @mattberkley @tarunkhaitan and
So if there is a real-world-effects test, it might seem more appropriate for the burden of proof - that the prorogation would not have irreversible/serious effects - to be on the government.
1 reply 0 retweets 0 likes - Replying to @mattberkley @tarunkhaitan and
But even if the burden of proof is on the government, assessing reasonably foreseeable real-world effects of prorogation might well still involve a lot of speculation.
1 reply 0 retweets 0 likes - Replying to @mattberkley @tarunkhaitan and
Another "knowledge" problem is: The government may know something that it doesn't want most MPs to know, because then it would be scrutinised. That might be the hidden reason for a prorogation.
1 reply 0 retweets 0 likes - Replying to @mattberkley @tarunkhaitan and
Unless there are realistic examples where a court could be confident that a government prorogued in the actual knowledge that there would be no real-world "adverse", irreversible effects...
2 replies 0 retweets 0 likes - Replying to @mattberkley @stefan_theil and
I think the current crisis is a realistic example. Also, the original blogpost emphasises two key qualifications: 'probable' effect and 'effective' irreversibility. Judges make this kind of speculation all the time in indirect discrimination law.
1 reply 0 retweets 0 likes - Replying to @tarunkhaitan @stefan_theil and
I'm asking for examples where a court could be certain there will be no irreversible effects from an "unusual" prorogation. A week is a long time in politics! Isn't speculating on probable effects from loss of legislation and scrutiny very different from discrimination cases?
1 reply 0 retweets 0 likes - Replying to @mattberkley @tarunkhaitan and
Or at least, where a court could be certain there will be no *serious* irreversible effects. If individuals are affected by legislation not passed at the expected time, how would a court assess seriousness of effect? We can't even assume the legislation would have been passed.
2 replies 0 retweets 1 like - Replying to @mattberkley @tarunkhaitan and
So, having returned to twitter after a few hours, I think I'm going to confine myself to saying how much I liked all the tweets in this thread, including all the sub-threads and sub-sub-threads.
1 reply 0 retweets 3 likes
Replying to @aleclodativ @mattberkley and
It’s like the World Cup AND the Olympics at once for constitutional lawyers
7:08 AM - 21 Sep 2019
0 replies 0 retweets 3 likes
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