Brexit and the waning days of the United Kingdom

[Richard Hakluyt]

Unanimous........that surprised me.

[celedhring]

So, are you guys going fully ahead with that 1640 reenactment?

[mongers]

So, are you guys going fully ahead with that 1640 reenactment?

Not quite yet there. 

[Sheilbh]

Unanimous........that surprised me.

Same. It might be unprecedented. It's very rare that you get 11 justices sitting  together, far less agreeing!

[Richard Hakluyt]

Unanimous........that surprised me.

Same. It might be unprecedented. It's very rare that you get 11 justices sitting  together, far less agreeing!

Well the Guardian was presenting the case as if the government had no case at all; which made me suspicious. But it turns out that angle must have been correct.

[garbon]

Looks like Farage and the Tories are now lining up to place all blame on Dominic Cummings.

[Sheilbh]

Yeah. I think the government had a case on justiciability, though I agreed with the Inner House's ruling on that.

There could also have been divisions on what the test is. I think the court's been quite sensible and set an objective test based on the effect of the prorogation, not the motives - so what the PM of the day thinks is irrelevant.

The lawyers I read all agree there were a few fine points especially on justiciability but expected a ruling in this direction, but probably on a majority.

[Sheilbh]

Looks like some MPs are looking at bringing an impeachment motion, which is a throwback

[Razgovory]

I didn't even know that a court could overrule a Prime Minister in the UK.

[Tamas]

I didn't even know that a court could overrule a Prime Minister in the UK.

Well who else would? He can pretty much ignore Parliament otherwise, and the monarch will just sign whatever is put in front of her.

[chipwich]

I didn't even know that a court could overrule a Prime Minister in the UK.

The uk went through a bunch of changes in the past 20 or so years.

[crazy canuck]

I didn't even know that a court could overrule a Prime Minister in the UK.

Well who else would? He can pretty much ignore Parliament otherwise, and the monarch will just sign whatever is put in front of her.

As mentioned above the issue of whether the question was justiciable ie within the court's jurisdiction to decide was a live issue.

It is an important legal development that there was unanimity on that issue.  That was a bit surprising.

[Razgovory]

I didn't even know that a court could overrule a Prime Minister in the UK.

Well who else would? He can pretty much ignore Parliament otherwise, and the monarch will just sign whatever is put in front of her.

Honestly, never gave it much too much thought.  I thought parliament was supreme.  I don't fully understand how the British system works, I think that's obvious.

[grumbler]

Parliament (which is to say, the House of Lords, House of Commons, and Crown-in-Parliament) is sovereign, but the PM is part of Parliament and so are the courts, as I understand it.  The national courts are under the crown (hence Crown Prosecutors and Queen's Justices), correct?  And I know that parliament has granted the courts judicial independence by statute, but could Parliament not change that at its own discretion?

It's a weird system to an outsider, where the only real check on the power of Parliament is Parliament's own sense of duty.

[Sheilbh]

The issue is prerogative powers are residual powers that are not directly granted by Parliament by statute. They are a ragtag of things where the executive has the powers that have been left with the Crown. But they are the powers of the Crown/executive. As the Scots QC pointed out, there's nothing special about them and they're not very coherent.

Separately Parliament is sovereign so everyone, including the Crown, is subject to laws passed by Parliament as grumbler describes. And the court goes back to the 17th and 18th century to point out that the courts will step in to protect the sovereignty of Parliament from the prerogative power of the Crown in cases American will probably recollect: the Case of Proclamations (prerogative cannot be used to change the law of the land) or other limits on prerogative (Entick v Carringyon the executive/Crown cannot search private property without valid parliamentary authorisation).

In this case they've said the Crown cannot use its prerogative power to prorogue Parliament if it would have the effect is to frustrate or prevent Parliament from playing its constitutional role. Or as Lord Pannick put it in his argument: the executive is the junior partner and it can't use its powers to frustrate oversight by Parliament, the senior partner.

Baroness Hale sets it out very clearly:

Two fundamental principles of our constitutional law are relevant to the present case. The first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply. However, the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples, in the Case of Proclamations the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in the case of Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508, the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative. More recently, in the Fire Brigades Union case, the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative, and was not deflected by the fact that the Government had failed to bring the statute into effect. As Lord Browne-Wilkinson observed in that case at p 552, "the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body".

42.              The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.