Writing in a number of dispatches on proceedings in NLJ this week, Michael Zander QC, Emeritus Professor, LSE, said he had initially agreed with retired Justice Lord Sumption that the court would rule the case not justiciable. After reading Lord Pannick’s Written Case for Gina Miller, the lead appellant in the English High Court appeal, however, he said: ‘I have changed my mind.
‘I now think there is a fair chance that the decision will go the other way.’
In his written case, Lord Pannick argues the Divisional Court was wrong to hold that the first question was whether the matter was justiciable and only if so, whether there had been a public law error. He highlights the fact the Prime Minister did not make a witness statement explaining the decision. Lord Pannick further argues that the legal principle of parliamentary sovereignty was engaged and the advice given to the monarch was an abuse of power because of the length of prorogation and because of evidence that the Prime Minister was, Lord Pannick says, ‘acting by reference to improper considerations which are inconsistent with the very notion of Parliamentary sovereignty’.
After looking at the Advocate General Lord Keen’s arguments on behalf of the government, Zander said the government also had ‘a strong case’.
Outlining the main points put forward by the government’s legal team, Zander writes that the government’s arguments include that the power to prorogue Parliament has historically been ‘used for political purposes including the purpose of restricting the time available to debate legislation and for long periods including at moments of political importance. In the First World War, Parliament was prorogued for a period of 53 calendar days. In August 1930 after the Wall Street Crash, it was prorogued for 87 days’.
Moreover, ‘advice about prorogation involved the weighing up of political considerations, including how most effectively to secure the government’s political and legislative objectives and agenda,’ Zander writes.
The case continues, at the time of going to press.
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