Prorogation unlawful

The supreme court ruled that the prorogation was unlawful. It is unclear what the implications of this are, besides that Parliament will sit for more days than expected and that future prorogations will be subject to similar scrutiny as to motive.

We seem to be in an interesting situation in which Parliament is divided on other-than-party lines (it is not aligned with itself). The executive can not pass legislation (at least not Brexit-inclined legislation) because it does not hold a majority. It can not get a majority because the Fixed Term Parliament Act prevents an election. However the speaker allows the (Remain) opposition to pass legislation which appears to bind the executive into specific courses of actions.

It is a very odd situation. Either parties must split and the Great Realignment occur, or else the issue on which they are split must resolve and the parties re-join and continue as they were.

Update: Raphael Hogarth explains the court’s reasoning.

Updated: 24th September 2019 — 12:03 pm


  1. Back in late 2016, there were mutterings about Lady Hale recusing herself from the Miller case (no. 1) on account of comments that she made in a speech in Malaysia. This grew into consideration of whether or not she should recuse herself from the case.

    I will give my views on the judgment later, when time permits, but it strikes me that the arguments put forward in justification were selective and self-serving.

    The peril of a standing judiciary are far worse than a standing army. At least an army can clear up after disasters and even, if prodded, defend against external aggression.

  2. It is not in itself a huge surprise that the court that managed to find for Gina (and against constitutional precedent) in 2016 over issuing article 50 managed to find for her again in a similar fashion.

    However some are surprised. I am not surprised as regards what I have expected for the last few days – but I am surprised as regards what I expected a month ago. We must guard against a persistent feeling of “Surely, they can’t be that insolently dishonest.” We have surely had enough reason between mid-2016 and now to know they can.

    The ruling text shows the court did some work on their self-justifying phrasing – but not enough, I feel. Mentioning John Major re how long a Queen’s Speech takes to prepare, while not (apparently) even asking him about his own prorogations reveals the reality under the smooth phrases.

    Blair’s new-fangled ‘supreme court’ is a pain – or (another way of saying the same thing) is functioning as he intended.

    “the prerogative of prorogation has been used for centuries without this kind of challenge

    is Boris’ immediate response, but of course the whole point of Blair’s court was to be an activist court that actively reshaped Britain by rejecting such precedents. That’s why he created it. (On October 1st, it celebrates its 10th birthday.)

    Meanwhile I hope Boris and friends have had at least a few days to become as unsurprised as I and plan their next moves.

  3. Play the game, man! Play the game.

    As long as the UK is part of the EU, the mere English “Supreme” Court cannot be supreme. There must be some European body which has — or which can semi-plausibly be claimed to have — the authority to over-rule it. After all, we are in uncharted territory here.

    It would be beyond entertaining to see hard line No Deal Brexiteers appeal to a European court to over-rule the English Supreme Court! And it would also serve a very valuable purpose — that of pushing the countries of the EU closer to the tipping point where they unceremoniously eject the unwanted troublesome UK from the club.

  4. Gavin L,

    The European Court of Justice cannot be resorted to as it only deals with questions of European Union law, which don’t arise in this case, and in any event, it does not decide cases but answers questions referred to it by a court in an EU member state as to how the law applies, e.g. ‘if a government of an EU State provides help to holidaymakers stuck overseas when an airline collapses, is that permissible State aid under the Treaties of the Union?’, rather than ‘I lost, can you help me win?’.

    The other court is the European Court of Human Rights, which decides is actions of governments or the application of the law is compatible with Convention Rights, and here again, it is not engaged.

    So this court is the end of the road for this point.

  5. Perhaps Hale can spend her overdue (and, let us hope, brief) retirement reading up on 17th-century British history.

    I note that she was invited to give a fancy lecture at the University of Melbourne in 2015: its law school is an interventionist PC disaster zone; and that she couldn’t keep her mouth shut at a conference in Malaysia. I echo a former High Court judge in Australia (i.e. a man at the peak of the judiciary) in wondering why so many superior court judges think themselves so superior that they have a direct line to God, and discover things that aren’t there.

  6. Mr. Ed — Yes, I understand the suggestion is a non-starter from a legal perspective. But we are beyond law here (“prorogation unlawful”) and into the realm of influencing public opinion and people’s actions. No-one should be aiming for a legal victory; instead the aim is for a political victory.

    UK citizens human right to democratic representation have been infringed (Ha! ha!). Filing a case with the European Court of Human Rights will get lots of people fired up for different reasons. Waverers on the Brexit side may get annoyed that European institutions are being asked to intervene in what Brits might see as a purely local matter. Europeans might get annoyed that they are getting pulled deeper into the UK Brexit mudbath, and start actively trying to eject the UK from the EU.

    Play the game, man! Think outside the box!

  7. The UK Supreme Court would do well to remember what Robert H. Jackson wrote about the American Supreme Court, of which Jackson was an Associate Justice:

    “We are not final because we are infallible, but we are infallible only because we are final.”

    Not likely to happen. Swelled heads are a prerequisite for members of top courts.

  8. There was another Jackson who had something to say regarding the US Supreme Court.

    As I recall, it went “John Marshall has made his decision; now let him enforce it.”

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