Category: European Union
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Michael Detmold: The Unconstitutional Brexit Letter
1. Responsible Government Parliament is an institution of responsible government. The essence of the common law principle of responsible government is the constitution of a regime of confidence: a government is required to carry the confidence of Parliament. This is the fundamental connexion of the executive (the Government) to the Parliament. The European Union (Withdrawal)…
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Alexandra Sinclair and Joe Tomlinson: Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments (Part 2)
Last week, we posted an analysis of the position vis-à-vis Brexit legislation, both primary and delegated, in view of the Government’s prorogation decision. In that post, we set out a range of likely consequences, which are now beginning to come to fruition. As regards primary legislation, only three carry over motions were passed for eligible…
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Yossi Nehushtan: Prorogation and Justiciability
The question of justiciability lies at the heart of the judicial response to the legal challenges that were brought against the Prime Minister’s administrative decision to advise the Queen to prorogue Parliament in Miller 2 and Cherry. The judicial reluctance to exercise judicial review regarding the administrative decision to advise the Queen to prorogue Parliament…
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Dean Knight: Reasoning Through Challenges to Prorogation: Cherry and Miller (No 2)
The challenges to the prime minister’s request to the Queen to prorogue Parliament in the face of the fast approaching Brexit deadline have many fascinating dimensions (Cherry v Advocate General [2019] CSIH 49 and R (Miller) v Prime Minister [2019] EWHC 2381 (Miller (No 2)). The question of justiciability has been at the forefront. And…
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Hasan Dindjer: Prorogation as a Breach of Parliamentary Sovereignty
Does proroguing Parliament under the present circumstances breach the principle of parliamentary sovereignty? The Divisional Court in Miller v Prime Minister (‘Miller (No 2)’) thought not. It held that the principle is not wide enough to be threatened by prorogation ([63]-[64]). I argue here that this conclusion rests on too narrow a view of parliamentary…
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Hayley J. Hooper: Keeping the Lights On: Contrasting Miller v Prime Minister and Cherry v The Advocate General
If the phrase “may you live in interesting times” actually has its roots in a curse, then, we constitutional lawyers are indeed cursed. The specific nature of the curse is the malleable nature of constitutional controls designed to protect our institutions from the whims of executive action. At the time of writing, Britain is set…
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Ewan McGaughey: Is There a ‘Legal Measure’ to Judge Parliament’s Prorogration?
A central theme of the High Court judgment in Miller v Prime Minister is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court…
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Timothy Endicott: Don’t Panic
The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is…
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Alan Greene: Miller 2, Non-justiciability and the Danger of Legal Black Holes
In R (Miller) and Others v The Prime Minister (hereinafter Miller No.2), the High Court of England and Wales found that the decision of the Prime Minister to advise the Queen to prorogue parliament was non-justiciable. In doing so, the judgment reveals the propensity of the judiciary to be much more protective of its own…
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Oliver Garner: The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?
Introduction: extension and the Rule of Law On 9 September, the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Extension Act’) received Royal Assent. The Benn-Burt Extension Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period under Article 50(3) TEU. …