header-logo header-logo

Prorogation 2019: the government’s case

18 September 2019 / Michael Zander KC
Categories: Features , Brexit , Constitutional law
printer mail-detail
Michael Zander QC on the government’s argument that proroguing Parliament was lawful

The government argues that the Inner House of the Court of Session was wrong in holding ([2019] CSIH 49) that the prorogation of Parliament was unlawful and that the Divisional Court was correct in holding ([2019] EWHC 2381 (QB), [2019] All ER (D) 24 (Sep)) that it was lawful. The government’s oral argument is being divided between Lord Keen QC, the Advocate General for Scotland, and Sir James Eadie QC for the Attorney General. However, they presented a joint written case.

The government’s written case advances several different propositions.

Not justiciable

The authorities established that the exercise of some powers, both statutory and prerogative, were non-justiciable. Whether the exercise of a power was reviewable by the courts depended on its subject matter (‘the paradigmatic examples are decisions of high policy in defence and foreign affairs and domestic politics’ (para 56)). The reason in some contexts was the inability of the courts ‘to apply judicial or manageable standards

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Hugh James—Phil Edwards

Hugh James—Phil Edwards

Serious injury teambolstered by high-profile partner hire

Freeths—Melanie Stancliffe

Freeths—Melanie Stancliffe

Firm strengthens employment team with partner hire

DAC Beachcroft—Tim Barr

DAC Beachcroft—Tim Barr

Lawyers’ liability practice strengthened with partner appointment in London

NEWS
Ceri Morgan, knowledge counsel at Herbert Smith Freehills Kramer LLP, analyses the Supreme Court’s landmark decision in Johnson v FirstRand Bank Ltd, which reshapes the law of fiduciary relationships and common law bribery
The boundaries of media access in family law are scrutinised by Nicholas Dobson in NLJ this week
Reflecting on personal experience, Professor Graham Zellick KC, Senior Master of the Bench and former Reader of the Middle Temple, questions the unchecked power of parliamentary privilege
Geoff Dover, managing director at Heirloom Fair Legal, sets out a blueprint for ethical litigation funding in the wake of high-profile law firm collapses
James Grice, head of innovation and AI at Lawfront, explores how artificial intelligence is transforming the legal sector
back-to-top-scroll