Constitutional Law Group September 17, 2019 Judicial review, Scotland, UK government, UK Parliament

Stephen Tierney: Prorogation and the Courts: A Question of Sovereignty

The request made by the Privy Council that the Queen prorogue Parliament was a clumsy and inappropriate attempt to shorten the time available for parliamentary scrutiny of the Brexit process. That much seems clear from papers submitted to the Court of Session in Cherry. It is therefore no surprise that the Inner House was receptive to the petitioners’ argument that the advice given to Her Majesty violated the conventional purposes for which prorogation ought to be used and was therefore unconstitutional (Cherry, [1]; see also Lord Sumption). Where the court erred was in concluding that the act of prorogation was itself unlawful. The intimate relationship between the prerogative power to prorogue and the supremacy of Parliament precludes such a conclusion. If, as seems correct, a response to this breach of convention is warranted, it is one that can, constitutionally, only come from Parliament itself.

In this blog I argue that the juxtaposition of justiciability/‘high policy’ which is typically used to justify judicial restraint in relation to prerogative powers, as others have observed, is of little help. Although the English Divisional Court in Miller II arrived at a more constitutionally-convincing conclusion than did the Court of Session, the reasoning behind its decision, which is largely based upon this juxtaposition, is incomplete. Instead, to understand the case for judicial restraint – more accurately, the drawing of constitutionally appropriate jurisdictional roles – which the constitution demands, we need to categorise certain prerogative powers (including the prorogation power) as the ‘prerogatives of sovereignty’ which capture the legal dimension of sovereignty within our constitution. These prerogatives of sovereignty are fundamental to the relationship between Crown and Parliament, and to the doctrine of supremacy which flows from it.

The concept of justiciability should in the first place be sharpened by distinguishing the inherent jurisdiction of the common law courts from the boundaries of that jurisdiction. The former contains the authority to police the legal limits of the Crown’s authority. The common law courts have long resisted endeavours by Parliament to curtail this immanent jurisdiction. In this fundamental sense no matter is non-justiciable; the courts assert the right to police the boundaries of their own jurisdiction, a point forcefully made by Lord Drummond Young in Cherry [102]. It is also long settled (Council of Civil Service Unions v Minister for the Civil Service) that the prerogative power is in principle subject to review, as are Orders in Council pursuant to such power (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)). In this over-arching sense prerogative powers are always justiciable. The courts can articulate the limits of their jurisdiction; there are no black or grey zones of executive power where the rule of law does not run.

That said, our constitution prescribes appropriate jurisdictional limits with which the courts ought to delineate the proper scope of their supervisory function. It is a truism that they cannot strike down statutes enacted by Parliament, nor can they extinguish prerogative powers, although they can adjudicate upon the way in which the latter are exercised. The courts, in light of their inherent jurisdiction have taken on the role, quite properly, of articulating the limits of specific prerogative powers. In recognising that parliamentary supremacy prevails legally and practically over the prerogative there are two areas where they legitimately do so. The first concerns situations where the prerogative has been circumscribed by statute (beginning with the dispensing power as curtailed by the Bill of Rights itself). We see this in a well-established line of cases, e.g. Attorney General v De Keyser’s Royal Hotel Ltd, R v Secretary of State for the Home Department ex parte Fire Brigades Union; R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) etc. The courts police the prerogative because the Crown in Parliament has, through legislation, warranted their engagement; ergo, if the Crown acts for a purpose that conflicts with parliamentary intention it does so improperly (Padfield v Ministry of Agriculture, Fisheries and Food). The second area where the courts rightfully regulate the exercise of particular prerogative powers is in protecting legal rights recognised by the common law (Miller II [44]); here the inherent authority of the common law courts can challenge the exercise of certain prerogative powers in recognition that Parliament, through the Bill of Rights, recognised the former in the process of curtailing the latter. Certain prerogative powers are directly concerned with relationships between the Crown and individuals, such as the prerogative of mercy or the issuing of passports; the courts correctly police these because they are matters squarely within the area of common law rights; they have also in many ways been circumscribed directly or indirectly by statute.

The prerogative power to prorogue Parliament does not however fall into either of these two categories. It was recognised in Cherry that it has not been circumscribed by statute (per Lord Brodie [68]). Indeed, Parliament itself made this clear in the Fixed Term Parliaments Act 2011(FTPA), s.6(1): ‘This Act does not affect Her Majesty’s power to prorogue Parliament’. It was also recognised in Cherry that the exercise of the prerogative power to prorogue does not implicate common law rights (per Lord Carloway [59]).

In trying to distinguish when it is appropriate to review the exercise of certain prerogative powers in certain situations the courts have tended to fall back upon the rather vague conceptions of ‘political’ or ‘high policy’ matters. This is confusing and unhelpful because, in attempting to understand when a prerogative is used in a political way, it invites the courts to consider the motive behind the exercise of all prerogative powers when in fact, as I will argue, the need for constitutional self-abnegation by the courts is far more fundamental, concerning the nature of certain prerogative powers, not their exercise. It has been correctly pointed out by Paul Craig that the reasons to prorogue may not involve high policy or matters of political importance. Indeed Parliament tends to be prorogued for the routine business of facilitating a new parliamentary session. The decision to prorogue is therefore rarely, and indeed constitutionally ought not to be (hence the current proceedings!), a matter of intense political dispute. It can therefore be argued that there is in the present case no issue of high policy from which the courts ought to recuse themselves.

It is here that we need to eschew the notion of politics and high policy in favour of a far more fundamental constitutional reason for judicial restraint in this case; distinguishing the reasons behind a decision to prorogue from the legal act of prorogation. The act of prorogation is nothing less than the expression of sovereign authority by the Crown in Parliament. It is one of a category of prerogative powers that does so. These include the power to grant Royal Assent to legislation, to form a government, to appoint and dismiss ministers and to dissolve Parliament. These prerogative powers are not concerned with the relationship between the Crown and individuals but rather with the central relationship of governing which gives our constitution its meaning and in which we locate supremacy. It is in recognising the category distinctiveness of these powers (the ‘prerogatives of sovereignty’) that we also see the limits of the judicial role. We are also reminded of these limits by Article 9 of the Bill of Rights which expressly excludes from the purview of the courts the internal workings of Parliament, including speech and debate.

The relationship between the Crown in Parliament as one, unified organ of rule is the political fact that denotes supremacy within the UK constitution. In this conception of supremacy Parliament is not distinct from government. Parliament’s role transformed in the 18^th century from being a check upon the Crown to working with it as ‘the key instrument of British government’. As Dicey put it: ‘that… the Crown, the Peers, and the Commons acting together – is absolutely supreme, has never been doubted’. (A.V. Dicey, England’s Case Against Home Rule 1886) This symbiotic and tense relationship of supremacy can only be managed by the institutions that constitute it. Lord Browne-Wilkinson stated in the Fire Brigades Union case: ‘The constitutional history of this country is a history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature of the sovereign body. The prerogative powers of the court remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’ As the FTPA makes clear, the power of prorogation has not been extinguished; nor has it been statutorily circumscribed. While as a matter of jurisdiction, courts have a general review function in relation to prerogative powers, ‘prerogatives of sovereignty’ as a category are uninhibited by statute because they are vehicles through which the supremacy of the Crown-in-Parliament functions. Simply because a matter is in principle justiciable, it does not follow that adjudication is always appropriate; courts should not seek to regulate the prerogatives of sovereignty where Parliament has chosen not to do so.

But what of the argument, skilfully put by the petitioners in Cherry, that this relationship of supremacy cannot operate if Parliament is in fact prorogued? Lord Drummond Young was attracted to this contention: ‘The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so.’ [106] (see also Lord Carloway [29] and [35]).

I submit that if prorogation had been granted in an open-ended way, with no time limit, the relationship between Crown and Parliament would be at risk of a fundamental breakdown, even to the point where we would enter another 1688-89 moment. But this would be the collapse of the constitutional order as we understand it; it could not be remedied by the courts. In any event, this is not where we are. Parliament did sit in the period before prorogation took effect and in this period demonstrated its power in relation to the executive by passing a major statute quickly. In this period it could have sought to constrain the prorogation power as it has constrained the prerogative power to dissolve Parliament (FTPA). Other powers in relation to confidence or even contempt were at its disposal. That it did not pursue these options perhaps reflects a recognition that the period of prorogation, although politically controversial, was subject to a clear time limitation and did not entirely preclude meaningful parliamentary deliberation. The constitutional relationship of supremacy between Crown and Parliament has been strained but it has not been broken.

If the Supreme Court upholds the decision of the Inner House it will be deeply ironic that a Prime Minister who has sought, for political advantage, to rely upon an inherent ‘sovereign’ prerogative power of the Crown-in-Parliament to control its own proceedings will have rendered this power subject to an unprecedented level of judicial control; thereby removing a fundamental pillar of that very sovereignty. The Court however should not take this road. It is for Parliament alone to demarcate its sovereign relationship with the Crown. In due course it may decide to subject the prorogation power to legislative control as it has the dissolution power. This remains to be seen. What is vital is that an abuse of convention does not lead the Supreme Court in a direction that could fundamentally alter the nature of supremacy within the constitution. The oversight role of the courts is vital to ensuring legality within the constitution, but this does not extend to policing the fundamental relationship of supremacy that binds the Crown to Parliament. For the rule of recognition within our constitution to continue to make sense, only the supreme body can determine matters of supreme rule.

I am grateful to Ailsa Henderson, Jeff King, Harshan Kumarasingham, Martin Loughlin, Asanga Welikala and Alison Young for very helpful comments.

Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh. The author serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a personal capacity.

(Suggested citation: S. Tierney, ‘Prorogation and the Courts: A Question of Sovereignty’, U.K. Const. L. Blog (17th Sept. 2019) (available at https://ukconstitutionallaw.org/))

17Comments

Add yours

1

Jim W on September 17, 2019 at 2:01 pm
Reply

Paragraph 7 seems to me fundamentally flawed. There is no judicial review of the ‘legal act of prorogation’; only of the Government’s *advice to prorogue*, which you correctly distinguish in places but conflate in others. There is therefore no threat to the fabled ‘sovereign authority’. There is, indeed, no mechanism by which the legal act of prorogation can itself be reviewed by the Courts.

This distinction can be seen more easily on the question of remedy. It is taken for granted that a ruling that the *advice* was unlawful would lead to an appropriate remedy in the Crown’s exercise of the prerogative, and Parliament would therefore be ‘unprorogued’. But the mechanism for such a remedy is unclear. Supposing the advice were ruled unlawful, the Crown, having exercised the prerogative in choosing to follow the advice to prorogue, would again be expected to exercise the prerogative by choosing to invalidate the Order in Council. Indeed, the alternative to such a voluntary revocation of the Order in Council would be for the Queen *herself* (in the retrospective absence of ministerial advice) to have chosen to prorogue Parliament. The Crown is highly unlikely to leave itself in such a position, but the residual prerogative power would technically allow it. The discretionary aspect of the prerogative, therefore, is likely (but not technically guaranteed) to be exercised with due respect towards and deference for the constitutional principles governing the legality of Executive actions.

Indeed, it is only through such a course of events that various principles of the Constitution can emerge unscathed: otherwise we must choose which to preserve. The acts of the Commissioners in proroguing Parliament, pursuant to the Order in Council, are surely ‘proceedings of Parliament’ protected from judicial remedy by Parliamentary privilege (eg in the Bill of Rights); no remedy can be ordered at this level. The Order in Council is the concrete exercise of the royal prerogative to prorogue; no remedy can be ordered at this level without compromising the prerogative power. The scope for judicial review is properly restricted to the *advice*; a review of this advice does not threaten the prerogative itself. This improper conflation is, however, common.

Besides which, and as a small concluding aside, the argument that since Parliament has neglected to specifically circumscribe the exercise of the prorogation prerogative, it is therefore unrestrained, is plainly not only inherently fallacious, but straightforwardly at odds with the common law principles of the Constitution (upon which Lord Carloway so eloquently relies).
2

solchap on September 18, 2019 at 8:12 pm
Reply

I question the assumption that prorogation of Parliament is a “proceeding” caught by Article 9 of the Bill of Rights 1688. The article is an ouster clause, and as such should be construed narrowly, with strict regard to its intended purpose. It is headed ‘Freedom of Speech’ (or at least it is so headed in the version on the Government’s website) and is surely aimed specifically at what actually occurs, or may occur, in Parliament when it is sitting. Prorogation is a merely mechanism for bringing one Parliamentary session to an end and starting the next. It would be bizarre in the extreme if a provision intended to secure freedom of speech were construed is such a way as to enable actions, taken without the consent of Parliament, that made any speech at all completely impossible for a significant and, in the present case hugely important, period.

As I understand it, nothing of significance has to be done, and can only be done, while Parliament is prorogued. Preparing the Queen’s speech can obviously be done long before prorogation, and almost certainly largely is. It would be perfectly possible to prorogue Parliament on a Friday evening, and start the new one on the following Monday morning. Hence to prorogue Parliament for a period of weeks, when it could be done overnight, inevitably raises the question why the period is so long if it is not for some ulterior purpose. So far no justification has been forthcoming from the Government, whether by way of a witness statement or at all. I cannot fault the conclusions of the Scottish Inner House.
- 3
  
  Distressed Constitutionalist on September 19, 2019 at 9:56 pm
  Reply
  
  If prorogation is not an internal mechanism of parliament, but instead an external act, then if you follow the Miller argument, by definition prorogation fundamentally undermines the constitutional position of parliament, because it defeats any bills currently in sitting. The only way of determining whether a defeated bill is of sufficient importance such that the action itself is unlawful, is a political question. The question of the bill ever passing is purely hypothetical, and the contents of the bill is purely a political question based on politician to politician.
  
  The Scottish Inner House decision was a hideous incursion upon our constitution, based on either crude political activism or extreme stupidity. At the most generous conclusion the Inner House was swindled by shrewd lawyers and smokey arguments.
- 4
  
  Le Cochon Bleu on September 20, 2019 at 12:25 pm
  Reply
  
  “It would be perfectly possible to prorogue Parliament on a Friday evening, and start the new one on the following Monday morning. Hence to prorogue Parliament for a period of weeks, when it could be done overnight, inevitably raises the question why the period is so long if it is not for some ulterior purpose.”
  
  —
  
  I understand that it has long been accepted that progrogation, while indeed merely the means of dissolving parliament at the end of a session to make way for another, does not hold any limitations upon complementary other ambits included, whether incidental, foreseen or planned, falling within the occurrence of the progrogation.
  
  In other words, firstly there can be no ulterior purpose for progrogation than the ending of the parliamentary session. Perhaps that ought to read – no ulterior primary purpose, to make things more clear. But secondly, that cannot mean (and indeed as is evidenced in usage of prorogation) that, if this definitive purpose of the procedure is met, progrogation is not allowed to fall in use within other purposes.
  
  There is nothing whatsoever in all of law to say that prorogation must abstain from admitting complementary functions once its definitive purpose is met. Hence we see now at this most important time of all, when Parliament is usually suspended for the conferences, this year also, of course, the Prime Minister has the most serious mission of trying to agree an EU Exit deal outside of the nation.
  
  The 2019 progrogation, I am told, is only four or five days longer than typical, annual conference time suspensions. So it certainly doesn’t seem unreasonable for this extension from the norm for this most serious and important of times. Neither does the reason itself seem unreasonable, when, again, the definitive purpose of the progrogation (as well as the typical, annual purpose) is met.
  - 5
    
    solchap on September 20, 2019 at 8:16 pm
    
    Certainly there may be perfectly proper reasons for extending a prorogation so it lasts longer than just a weekend. If they exist and the extension is proportionate, then fine (usually), but what are the reasons in the present case? Despite being invited to do so, the government has not deigned to provide a witness statement setting out its thoughts on why the prorogation needs to be as long as it is. Anyway, although Parliament normally goes into recess during the conference season, it is not prorogued, and Parliament must first consent to that recess. As matters stand, the Government is assuming it can prorogue for as long as it wishes, without any such consent at all. Further when Parliament is in recess all the various Parliamentary bodies such as committees can continue with their work. That is not so during a prorogation. There is no equivalence. Moreover there is talk – I do not know how reliable – that Parliament would not have agreed to any recess this autumn had it been asked for its consent, precisely because of the imminence of the UK leaving the EU if the government has its way.
    
    May I just end by repeating part of what I said earlier, which no-one has as yet responded to: “It would be bizarre in the extreme if a provision [Art. 9 of the Bill of Rights] intended to secure freedom of speech were construed is such a way as to enable actions, taken without the consent of Parliament, that made any speech at all completely impossible for a significant and, in the present case hugely important, period”.
  - 6
    
    Distressed Constitutionalist on September 21, 2019 at 12:19 am
    
    There is actually no such fetter based on the purpose for prorogation. In fact, prorogation does not necessarily mean the end of a session. That is merely what it is commonly used for. Prorogation itself is unfettered in a true sense, beyond certain acts that require parliament to be sitting to function. In which case for those periods, the sitting of parliament is preserved notwithstanding the prerogative power.
    
    It does not take a legal genius to realize that our legal system is a negative system. Everything is allowed, bar such actions as prohibited by law, be it legislative or common or any other recognized source of law.
    
    Nonetheless, the courts do struggle. Maybe its not the legal principle they are tackling, but their own conscience.
7

Michael Detmold, emeritus Professor of Law Univrsity of Adelaide on September 19, 2019 at 3:55 am
Reply

Much of the tenor of Professor Tierney’s beautifully judged piece seems to be encapsulated in Article 9 of the Bill of Rights: ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. I’m wondering why he picked out speech and debate but omitted proceedings when the latter seems rather calculated to include prorogation. What is ‘in Parliament’? It seems wrong to think of prorogation as a proceeding applied to the Parliament from outside it: the Queen is part of Parliament, as is the individual member of Parliament who happens, by virtue of his having the confidence of Parliament, to be Prime Minister. The Privy Council is perhaps outside Parliament, but the substance of the prorogation process is with the Queen and the Prime Minister. It seems that it is only the crude but common error of thinking subliminally of Parliament as just a legislature, that might suggest that prorogation is something done to it from the outside. I’m wondering what Stephen thinks of the proposition that the Bill of Rights is able largely to determine the outcome of the current case.
8

Constitutionalist in distress on September 19, 2019 at 9:39 pm
Reply

The Miller case was a joke that based on the judges reasoning that forces any treaty that grants foreign recognized rights or domestic rights as necessarily having to be pushed through parliament first. This neuters the ability of the executive.

The case should have been simple. Revoke Article 50 is a prerogative power, but the rights lasting through the 1972 treaty Act would preserve until recovation. Therefore the revocation of Article 50 itself is practically incomplete even though it is legally complete on the executive side. Therefore for the rights to be removed then the action must be taken in tandem. However, the revocation of Article 50 may remove foreign recognized rights such as EU citizenship, but this is outside of the legislature and outside of the executive, but instead something that is taken by a foreign jurisidiction in regards to our citizens.

On the Miller case if the government wanted to sign a free movement of people agreement or even relax immigration checks between itself and a foreign nation, it must pass legislation, and if it wanted to do the reverse then it must also pass legislation first.
The same might be expanded to goods or services.

In this second Miller case another attack on prerogative the argument is purely emotional and political blowing smoke up the asses of the judges saying that they are the bastions of good governance and the balance in our democratic system. This is done by an oversimplificaiton of the prerogative power and its fetters.

The court can only review the prerogative power to prorogate if there is some statute that is impinged or some statute that directly regulates this prerogative power. The argument put forth by Miller’s legal team is that only the court provides this fetter less we allow despotic rulership to prevail in our democracy. Firstly the law is not concerned about our political system and its regulation, its concerned with what laws are active in relation to the governance of our political system and its regulation. If parliament wants to pass legislation that abolishes the executive and the judiciary the judiciary cannot do anything against this. So general arguments about democracy are irrelevant. The Judiciary is merely there to give the legal meaning of the law presented to them.

The prerogative power itself if unfettered is unlimited. However, there are many fetters on this prerogative power both legally and politically. Legally, there are multiple legislative sources that regulate sitting dates for their functions to be carried out from the Ireland Act recently passed, to even the Fixed Term Parliament Act. Secondly there are political/practical restrictions such as the executive need for finance/budgeting requirements, as well as the political ramifications with the electorate. The dooms day scenario as an extreme is fallacious and the court is hoodwinking itself by even entertaining it.

The argument of scrutiny is equally a joke. By definition, prorogation impinges the ability to scrutinize because parliament is not sitting. Scrutiny hinges upon the argument of sovereignty. Sovereignty does not concern itself with the inner workings of parliament, but rather the fact that legislation once passed through the required standards and procedure, is the ultimate source of power and cannot be impinged upon. Prorogation fundamentally undermines the action of this sovereignty, because it defeats bills in the previous session unless they are explicitly carried over. Prorogation itself can only be understood as a procedure in parliament for this reasoning. The defeat of legislation is much more alarming when it comes to maintaining parliament than merely reducing its ability to ask questions of the government. This is such the case that if the judges were to find in favour of Miller even a prorogation period of 1 second, could be construed as sufficient to breach the general principles of good governance and any other principle the Judiciary and Miller have magicked out of thin air.

Our constitution is rapidly becoming a joke. The only merit to a decision in favour of Miller is political. You cannot in a court start stating which political action or which bill is more constitutionally important to any other, as these bills are not law, they have no legal effect, and the only value of importance they hold are political in nature. To the courts a bill in parliament is merely a scrap of paper, so they can have no legal weight.

So the courts cannot complain about being attacked by the media for being “enemies of the people” or whatever names are thrown at them, they are stepping into the political sphere and making political decisions, and they will rapidly decline in a political tool such as the Court in the USA. This is full scale Lawfare and politicking with little regard to our great history of non-constitution.

I am honestly excited for Lady Hale to be retiring come January, and I can only hope her replacement is less politically enthused, and less public about their political affairs. Less we forget her open statements that she wants to bring feminism into the courts (A political ideology no less), her comments about government policy unrelated to the legal system (austerity), and her analysis of Brexit prior to the hearing.

I can only hope that later judges manage to repair this rapidly leaking ship, where the Judiciary is increasingly overstepping their powers and turning themselves into the true sovereign above parliament and above the executive. A rule of lawyers some are calling it. They are not too far from the truth.

What a disgrace.
9

Distressed Constituionalist on September 19, 2019 at 10:34 pm
Reply

Well written an accurate article.

Although, there are already statutory fetters on prorogation, based on periods where by statute parliament must sit, and these are dotted around in different legislative acts, making it a much more nuanced matter than the Miller Legal team would like to suggeset.
10

Brexit Highlights 16 – 22 September 2019 – Middle Temple Library Blog on September 23, 2019 at 1:32 pm
Reply

[…] the Reserve Powers; George Letsas: Non-Justiciability of Prorogation: A Matter of Law and Logic?; Stephen Tierney: Prorogation and the Courts: A Question of Sovereignty; Jeff King: Miller/Cherry and Remedies for Ultra Vires Delegated Legislation; Alexandra Sinclair […]
11

Edward Vivian on September 25, 2019 at 7:41 pm
Reply

What is the “law” to prorogue parliament? As far as I know there is no formal “law, as a result, the statement that the government have acted “unlawfully “ is completely incorrect.
Surely the remit of the justices is to interpret written “law”. In making their decision, they seem to have exceeded their limits and have in their own right possibly acted unlawfully.
It is such a shame that it has come to this state and more of a shame that the public are unaware of the law and the facts.
12

Mike Gordon: The Prorogation Case and the Political Constitution – UK Constitutional Law Association on September 30, 2019 at 9:01 am
Reply

[…] The Supreme Court’s judgment is framed around two constitutional principles of central importance in the political constitution: parliamentary sovereignty and the accountability of government to Parliament. These principles are taken together to establish a limit on the scope of the royal prerogative power to prorogue Parliament, which cannot be used in a way which has ‘the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’ (at [50]). Yet this raises a number of questions. First, in framing the question as concerning the scope of prerogative power in this manner, the Supreme Court was able to sidestep – rather than engage with – the legal and political difficulties concerning the justiciability in principle of a decision to prorogue Parliament which had been found persuasive by the Divisional Court. And as Stephen Tierney has shown, that more restrained approach could also have been justified by reference to constitutional principle. […]
13

| Policy Exchange on September 30, 2019 at 7:55 pm
Reply

[…] within any Westminster system of government where the prerogative of prorogation, (one of the ‘prerogatives of sovereignty’) has hitherto been treated as beyond the reach of the […]
14

Stephen Tierney: Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision | Policy Exchange on September 30, 2019 at 7:55 pm
Reply

[…] within any Westminster system of government where the prerogative of prorogation, (one of the ‘prerogatives of sovereignty’) has hitherto been treated as beyond the reach of the […]
15

Stephen Tierney: Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision | Judicial Power Project on September 30, 2019 at 8:17 pm
Reply

[…] within any Westminster system of government where the prerogative of prorogation, (one of the ‘prerogatives of sovereignty’) has hitherto been treated as beyond the reach of the […]
16

Paul Yowell: Is Miller (No 2) the UK’s Bush v Gore? – UK Constitutional Law Association on October 7, 2019 at 2:11 pm
Reply

[…] whether a given prerogative power exists (para 36). This distinction is valid but misapplied. As Stephen Tierney has observed, the courts’ ‘immanent jurisdiction’ to determine whether a claimed use of a […]
17

Michael Detmold: The Supreme Court and the Executive Power of History – UK Constitutional Law Association on October 18, 2019 at 9:15 am
Reply

[…] And so the Supreme Court held in Miller (2)/Cherry that sovereign prerogative powers (Professor Tierney’s admirable term) were answerable to law. In doing this, it committed the obvious logical error of holding […]