Justiciability and the 'Political Question' Doctrine

[2010] Public Law 160

23 Pages Posted: 23 Sep 2019

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: September 11, 2010

Abstract

In this paper, published in 2010 but relevant again as the UK courts consider the lawfulness of Boris Johnson's 2019 prorogation of Parliament, I examine the place of the "Political Question" doctrine in the common law of judicial review.

I argue that executive decisions, even on matters of high policy, should be presumptively reviewable. Indeed, there is an obvious trend in judicial decisions towards reviewability. I allow for two exceptions, where matters have been clearly committed to the discretion of the executive, but note that the same concerns which militate in favour of a presumption of reviewability operate to circumscribe the scope of these exceptions.

I also argue that judicial conclusions of "nonjusticiability" are generally based not on the fact that a particular matter is "political" or of "high policy" but on the inability of a claimant to make out a persuasive ground of judicial review.

Note that this is a pre-publication version of the article which appeared in Public Law.

Keywords: prorogation, justiciability, political questions, judicial review, Boris Johnson

Suggested Citation

Daly, Paul, Justiciability and the 'Political Question' Doctrine (September 11, 2010). [2010] Public Law 160, Available at SSRN: https://ssrn.com/abstract=3451971

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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