Scribd Logo
Upload

Welcome to Scribd!

  • 7 views

    LSI - Cherry Miller Background and Issues

    Uploaded by

    adrianleonewong
    The UK Supreme Court took a different view on the justiciability of the prorogation decision compared to the Divisional Court for three key reasons: 1. The UKSC found that the prorogation impacted on two important constitutional principles - parliamentary sovereignty and accountability. Prorogation reduced parliamentary scrutiny time which threatened these principles. 2. The UKSC relied on these principles to establish legal standards to assess the lawfulness of the prorogation decision, unlike the Divisional Court. 3. On remedies, the UKSC interpreted Article 9 of the Bill of Rights narrowly as not prohibiting courts from quashing unlawful decisions to prorogue parliament, seeing the prorogation as

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd

    LSI - Cherry Miller Background and Issues

    Uploaded by

    adrianleonewong
    7 views10 pages
    The UK Supreme Court took a different view on the justiciability of the prorogation decision compared to the Divisional Court for three key reasons: 1. The UKSC found that the prorogation impacted on two important constitutional principles - parliamentary sovereignty and accountability. Prorogation reduced parliamentary scrutiny time which threatened these principles. 2. The UKSC relied on these principles to establish legal standards to assess the lawfulness of the prorogation decision, unlike the Divisional Court. 3. On remedies, the UKSC interpreted Article 9 of the Bill of Rights narrowly as not prohibiting courts from quashing unlawful decisions to prorogue parliament, seeing the prorogation as

    Copyright

    © © All Rights Reserved

    Available Formats

    PPTX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The UK Supreme Court took a different view on the justiciability of the prorogation decision compared to the Divisional Court for three key reasons: 1. The UKSC found that the prorogation impacted on two important constitutional principles - parliamentary sovereignty and accountability. Prorogation reduced parliamentary scrutiny time which threatened these principles. 2. The UKSC relied on these principles to establish legal standards to assess the lawfulness of the prorogation decision, unlike the Divisional Court. 3. On remedies, the UKSC interpreted Article 9 of the Bill of Rights narrowly as not prohibiting courts from quashing unlawful decisions to prorogue parliament, seeing the prorogation as

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    7 views10 pages

    LSI - Cherry Miller Background and Issues

    Uploaded by

    adrianleonewong
    The UK Supreme Court took a different view on the justiciability of the prorogation decision compared to the Divisional Court for three key reasons: 1. The UKSC found that the prorogation impacted on two important constitutional principles - parliamentary sovereignty and accountability. Prorogation reduced parliamentary scrutiny time which threatened these principles. 2. The UKSC relied on these principles to establish legal standards to assess the lawfulness of the prorogation decision, unlike the Divisional Court. 3. On remedies, the UKSC interpreted Article 9 of the Bill of Rights narrowly as not prohibiting courts from quashing unlawful decisions to prorogue parliament, seeing the prorogation as

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    of 10

    Cherry / Miller:

    Background to the UKSC


    decision
    How to approach the case
    To begin with read the judgment through from beginning to the end. And then go back
    and re-read those sections that you were not clear on. We can helpfully divide the case
    into the following sections:
    a. Paras 1-26: Background and context

    b. Para 27: The four central issues that the court had to answer

    c. Paras 28-37: Is the case justiciable?

    d. Paras 38-52: Which legal standards should apply in this situation?

    e. Paras 55-61: Application of the relevant legal standards.

    f. Paras 62-71: What remedy should the court provide?


    What is
    prorogation?
     Prorogation ends the parliamentary session. It suspends the
    operation of parliament until a new legislative agenda is introduced
    through a “King’s Speech” where the legislative agenda for the next
    session is set out.
     Bills progressing through parliament are stopped
     Parliamentarians can’t ask questions of ministers, committees
    stop functioning
     Different from recess – voted on by parliament, parliament can
    be recalled.
     Prorogation is a prerogative power
     Exercised by the Monarch on the advice of the Prime Minister
     Monarch is bound by political convention to follow this advice

     Prorogation usually last for around a week in order for the


    government to prepare for the King’s Speech and the new session
    of parliament.
    Why was this prorogation
    controversial?
    This prorogation came in the midst of the Brexit
    negotiations:
     Following numerous extensions, the deadline for
    agreeing the terms of withdrawal was set for 31st
    October 2019.
     The dates of the proposed prorogation was to be
    sometime between 9-12 September until 14 October
    2019
     This meant that 34 out of 52 calendar days before 1 st
    November (exit day), parliament would be closed.
     19 ordinary sitting days would be lost (parliament
    doesn’t usually sit on Fridays)
    Why was this prorogation
    controversial?
     Many parliamentarians were very concerned about the
    prospect of a “no deal Brexit” and wanted to force the PM
    to ask for an extension (past the 31st October) if no deal
    was reached.
     The PM, in contrast, wanted to keep “no deal” as a
    possibility in order to strengthen the government’s
    negotiating position.
     Many argued that prorogation would reduce the time for
    scrutiny of the withdrawal agreement.
     And minimize the possibility of parliament legislating for a
    second referendum
     The period of prorogation was also very long.
     Former PM Sir John Major gave evidence that preparations for
    a Queen’s Speech would normally take 4-6 days.
    Could it have been worse?
    Yes!
     The fear held by the claimants in both the English
    and the Scottish cases was that the PM would
    advise the Queen to prorogue across 1st
    November (the day the UK exits the EU).

    Why was this  The proposed prorogation still left 2.5 weeks of
    parliamentary time to debate the withdrawal
    prorogation agreement and develop alternatives.
    controversial?  Prorogation took place at a time when parliament
    is normally in recess for party conferences
     Shortly before judgment was given in the
    Divisional Court, The EU Withdrawal Act (No 2)
    2019 was passed which forced the government to
    seek an extension in the case no agreement was
    reached.
     One of the main fears about the consequences
    of prorogation was therefore removed.
    Key issues for the courts
    1. Justiciability – is prorogation something which the courts can review? Do the
    relevant legal standards exist to assess the lawfulness of the advice?
    2. Constitutional Principles – how should fundamental constitutional principles
    (parliamentary sovereignty, ministerial accountability and separation of powers)
    be interpreted by the courts? And do they provide a sufficiently strong legal basis
    to review the decision?
    3. Remedy – if the advice was unlawful, can the courts really interfere with the
    proceedings of parliament and say that the prorogation had no effect?

    Each of these questions turns on how to strike a balance between legal and political
    forms of accountability. Is the advice to prorogue parliament a legal matter or a
    political matter?
    Justiciability
    The Divisional Court (Lord Chief Justice, Master of the Rolls, President of the Queen’s Bench
    Division) held that the prorogation was non-justiciable:

    ‘The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are
    whether they involve matters of “high policy” or are “political”. In this way the courts… have marked out the
    separation of powers between the judicial and the executive branches of government, a fundamental
    feature of our unwritten constitution’. (para 42)

    ‘In the present context of non-justiciability, the essential characteristic of a “political” issue is the absence
    of judicial or legal standards by which to assess the legality of the Executive’s decision or action. (para 47)

    ‘The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration
    chosen and the advice given to Her Majesty to do so in the present case were political. They were
    inherently political in nature and there are no legal standards against which to judge their legitimacy.’ (para
    51)

    QUESTION 1: The UKSC took a different view. Why?


    Constitutional
    Principles
    Constitutional principles – Fundamental ideas / beliefs that inform the
    organization of the constitution: e.g., the rule of law or separation of
    powers.
    In this case the UKSC argues that at least two principles are at stake:
    1. Parliamentary sovereignty: Parliament can make any law it wishes,
    there is no higher law than that passed by parliament
    2. Parliamentary accountability: One of parliament’s key functions is to
    hold the government to account.

    QUESTION 2: Why were these principles at stake? And how does the
    UKSC rely on these principles in the course of the judgment?
     What would be the consequences for these principles if the court found
    that there were no legal limits on the prorogation power?
    Remedy
    The government argued that the courts could not interfere with
    parliamentary business by making the prorogation void and without effect.

    ‘That the Freedome of Speech and Debates or Proceedings in


    Parlyament ought not to be impeached or questioned in any Court or
    Place out of Parlyament’
    – Art 9 Bill of Rights (1688)

    But the UKSC ruled:


    ‘[it was] as if the Commissioners [when declaring the prorogation] had
    walked into Parliament with a blank piece of paper. It… was unlawful, null
    and of no effect’ (para 69)

    QUETSION 3: How does the court interpret Art 9? Why do they not feel
    bound by this rule?

    You might also like