Thread by @Raphael_Hogarth

This is a thread summarising what the prorogation case at the Supreme Court tomorrow is all about, explaining how we have got here, and drawing together some of the commentary on which side is right.
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On 28 August, the Prime Minister advised the Queen to prorogue (that is, suspend) Parliament from a date between 9 and 12 September until 14 October. The Queen made an order doing so. Parliament was prorogued on 10 September. It is still prorogued now.
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The Supreme Court will be hearing argument on whether it was lawful for the Prime Minister to advise the Queen to prorogue Parliament. It is deciding two cases on appeal: one from England and one from Scotland.
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The claimants in England argued before the High Court that the PM abused his powers. In particular, they said, the PM undermined the principle of parliamentary sovereignty by proroguing in order to get round parliamentary opposition to his policies. Their argument in sum:
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However, the High Court found that the prorogation was not justiciable, meaning that there were no legal standards against which the court could judge its legitimacy. The decision was “inherently political in nature”.
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In Scotland, the challenge was initially dismissed by the Outer House of the Court of Session, for very similar reasons. That court held that prorogation was “a matter involving high policy and political judgment”.
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However, the challenge succeeded on appeal to the Inner House of the Court of Session, Scotland’s highest civil court. Lord Carloway said the true purpose of the prorogation was to stymie parliamentary scrutiny, and therefore that it undermined democracy and the rule of law.
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If the Supreme Court decides that the prorogation was unlawful, then Parliament will not return until 14 October, or until the PM advises the Queen otherwise. If the Supreme Court decides that the prorogation was unlawful, MPs will probably return in very short order.
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The result matters for Brexit. Though MPs have already passed legislation to avert no deal on Oct 31,
i) they cannot currently scrutinise no-deal prep or the renegotiation, and
ii) if the government tries to evade the effect of the Act, MPs may have no time to pass another.
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So which court got it right? Lawyers disagree. Here are just a few of the many interesting arguments floating around on the constitutional blogosphere. Apologies to any authors who feel that my 280-character summaries fail to do justice to their arguments.
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Timothy Endicott: against justiciability. It is in the *nature* of the PM’s power “to regulate a Parliament […] to which he is accountable, and on which he is utterly dependent” that its exercise is for control by Parliament, not the courts.
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ukconstitutionallaw.org/2019/09/13/tim…

Robert Craig: also against justiciability. The courts have previously declined to control exercises of prerogative power for matters of “high policy”, unless the exercise of power frustrates a particular statute.
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ukconstitutionallaw.org/2019/07/12/rob…

Paul Craig: for justiciability, and unlawfulness: if the courts control executive power when it's used to frustrate a statute, it follows that they must do so where it is used to frustrate Parliament’s ability to enact statute.
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ukconstitutionallaw.org/2019/09/10/pau…
ukconstitutionallaw.org/2019/09/02/pau…

Likewise @ProfMarkElliott: for justiciability. The High Court worried that the court has no way of answering the question: is this prorogation too long? Elliott says: just don’t ask that question. Instead ask “was it for a proper purpose?”
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publiclawforeveryone.com/2019/09/12/pro…

Hasan Dindjer: for justiciability and unlawfulness. Parliamentary sovereignty demands meaningful opportunities to legislate. This prorogation deprives Parliament of such opportunities, and so is unlawful.
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ukconstitutionallaw.org/2019/09/16/has…

Alison Young: for justiciability, and for unlawfulness. The court should restrict the scope of all prerogative powers so that they do not extend to undermining fundamental constitutional principles, like democracy and the separation of powers.
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ukconstitutionallaw.org/2019/09/13/ali…

Thrillingly, we can all watch the hearing on the livestream. It's going to be one to remember. 🍿.

/ends
supremecourt.uk/live/court-01.…