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uk supreme court: prorogation unlawful, null and of no effect September 24, 2019

Posted by Bradley in : brexit , trackback

The Constitutional principles of Parliamentary sovereignty and parliamentary accountability mean that there are limits to the power to prorogue Parliament:

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

Prorogation had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account, and there was no “reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy.”

Four points made clear at the outset:

1. The Prime Minister has with respect to prorogation “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.”

2. “[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it….almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”

3. “The Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play.”

4. “[I]f the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.”


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