Thread by @RobertCPalmer13

Ahead of Cherry and Miller (No 2) in the UKSC, I should comment on the argument of whether the crucial matters are judiciable or not. IMO they are but that needs a little explaining. This thread says why I think that it's a matter for the courts to decide.

1/18

The pivotal issue is whether the advice given to the Queen by the govt concerning the prorogation of Parliament (for 5 weeks) is lawful. Prorogation needs to be split into 2: the prorogation itself (a prerogative power) & the ancillary advice tendered to the Queen.

2/18

Prerogative powers are judiciable and the normal principles of JR should apply to the govt's exercise of prerogative powers. As such the Division Court held in error. No govt powers are unrestricted, they must be used lawfully and for legitimate reasons.

3/18

The courts determine the boundaries of the use of govt power & whether they're being used legitimately. This should also apply to the ancillary authority to advise the Queen as to why extended prorogation is being used. Is it a legal question to be determined by courts?

4/18

Boundaries to the lawful use of prerogative (and ancillary) powers exist. It follows that those boundaries (and the lawfulness of the govt's use of them) are a question for the courts. The govt must operate lawfully within those boundaries.

5/18

The argument that the issues are non-justiciable because it's 'political' is both incompatible with case law over the last 30 years & misinterprets the nature of the legal question under determination by the courts.

6/18

The question is whether the prorogation power has been used within the limits of those boundaries or has it been exceeded (referring to any purposes for which the power may not lawfully be used). IOW has the power been used for a purpose for which it cannot be exercised?

7/18

This means that issues concerning evidence & legal principle need to be raised by the UKSC. The evidentiary question (based on Cherry) concerns whether the true reason for prorogation was to 'stymie' parliamentary scrutiny of the Executive. This raises 2 other questions.

8/18

Is the stymying of Parliament a lawful purpose to exercise the prorogation power? And, is dealing with this matter something the courts can legitimately do, or are the matters that arise non-justiciable? IMO neither question raises difficult legal or constitutional issues.

9/18

Essentially the govt is faced with a legal challenge of bad faith. They needed a witness statement from a minister (or a senior civil servant) to explain how & why the decision was made. This didn't happen & the Court of Session focused on this omission.

10/18

The Scottish court - in the absence of a plausible explanation - established that there was an improper motive & that the power was exercised to stop parliamentary scrutiny during a time of constitutional crisis. If it's an improper motive, then it's unlawful. Period.

11/18

The question of whether the stymying of parliamentary scrutiny of the govt forms a lawful use of the power can lawfully needs to be answered by reference to fundamental constitutional principles. 1 such principle is the representative nature of the constitution.

12/18

The UK's institutional arrangements mean the Executive is accountable to Parliament. Determining the limits of the power are hardly controversial for the courts; concluding that exercise is incompatible with the nature of UK parliamentary democracy isn't either.

13/18

With such constitutional and institutional arrangements the govt can't have a legally unrestricted power to suspend the operation of Parliament (for the purpose of shielding the govt from parliamentary scrutiny): it defies representative parliamentary democracy

14/18

The court doesn't need open arguments of non-justiciability to answer the legal questions being raised. Exercising the power is ordinarily pedestrian & not usually a matter of 'high policy' (which is non-judiciable). There's little scope for non-justiciability here

15/18

If the court were being asked 'to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure', arguments surrounding non-justiciability would arise. But that isn't the case in either Miller (No 2) or Cherry.

16/18

Remember the official version for the purpose of prorogation is that it's to prepare for a new Queen's Speech. This doesn't explain why such an unusually long period of prorogation has been selected & gives rise to an inference that it being used for an improper purpose.

17/18

The Court doesn't need to determine whether the duration is excessive, the issues require the court to determine only whether prorogation was used for a purpose that was impermissible as it lies outside the range of purposes that the power can be lawfully used.

18/18