The Court concluded that no such justification had been In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. decision to prorogue Parliament (or to advise the monarch 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 legislature and as the body responsible for the supervision of the executive. As the Court put it in a key passage of its judgment: In particular, it held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification. However, the Supreme Court reached this conclusion for different reasons. Like the Inner House of the Court of Session, the Supreme Court concluded that the advice and the prorogation were unlawful. The Supreme Court disagreed with the Divisional Court, holding that the issues raised by the case were properly justiciable. They had been used improperly so as to “stymie” Parliament from discharging its In contrast, the Inner House of theĬourt of Session considered itself to be under no such inhibition, andĬoncluded that the advice and the prorogation were unlawful on the ground that This matter was one that a court could not properly consider on the ground that As is well known, the Divisional Court had held that Following the prorogation of Parliament - a stepįormally brought about by the Queen on the advice of the Prime Minister - theĬourt was called upon to determine whether that advice, and the resulting On this view, the case amounts to a significant restatement of a range of key matters, but cannot justifiably be criticised as having cast aside established principle or as an instance of improper judicial overreach.īefore embarking on that analysis, it may be helpful to I suggest that the better view is that while the judgment develops and applies relevant elements of UK public law in sometimes novel ways - and certainly in novel circumstances - it is rooted in well-established constitutional principles. Against this background, this post considers four respects in which the judgment might be argued (in either positive or pejorative terms) to be novel. 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. 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. Reactions to the unanimous Supreme Court judgment in Cherry/ Miller (No 2) UKSC 41 have been as strong as they have been diverse. For a shorter explanation of the case, see this 1,000 words post. The following is my detailed, initial analysis of the Supreme Court’s judgment in the Cherry/Miller (No 2) case.
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