The Unconstitutionality of the Supreme Court's Prorogation Judgment, with Supplementary Notes
42 Pages Posted: 5 Mar 2020 Last revised: 8 Mar 2020
Date Written: March 4, 2020
This SSRN paper consolidates –
I. unchanged, the Comment posted on Policy Exchange’s Judicial Power Project on 28 September 2019, and
II. with very minor amendment, the Supplementary Notes posted there on 7 February 2020. These explain why the Comment’s theses are sound. The UK Supreme Court’s nullification of the Queen’s prorogation of Parliament on 9/10 September 2019 was contrary both to the Bill of Rights 1689 and to the settled law of the constitution about the non-justiciability of the conventions regulating the inter-relations of Crown and Parliament and giving effect to the principle of ministerial accountability to Parliament. Academic attempts to deny the revolutionary character of the decision in Miller/Cherry v Prime Minister misrepresent the law of the constitution, and overlook the key facts about prorogation in Erskine May’s Law and Practice of Parliamentary, in the primary 20th century textbook on the law of the constitution, and above all in the Bill of Rights considered with the history of late Stuart prorogations. The factual misjudgments and injustices at the heart of the Judgment are further explored, and confirm the wisdom of the law of non-justiciability the Judgment cast aside.
Keywords: constitutional conventions, parliamentary privileges, Bill of Rights, Dicey
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