A Critical Analysis of the Case of Prorogations

(2021) Canadian Journal of Comparative and Contemporary Law (Forthcoming)

Ottawa Faculty of Law Working Paper No. 2021-08

22 Pages Posted: 24 Mar 2021

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: February 17, 2021

Abstract

R (Miller) v Prime Minister is a landmark case about the scope of prerogative power and judicial review in common law systems.

In this article, I critically analyze the seminal decision of the UK Supreme Court in what will no doubt come to be known as the Case of Prorogations, focusing on its likely importance, its reasoning, its doctrinal and historical coherence.

In Part II, “Prorogation”, I set the scene for the Supreme Court’s decision, describing the run-up to Prime Minister Boris Johnson’s ill-fated prorogation of Parliament as a ‘Hard Brexit’ beckoned.

Part III, “The UKSC Decision” is devoted to detailing the Supreme Court’s analysis, setting out in a few dozen crisp and clear paragraphs penned by Lady Hale and Lord Reed.

In Part IV, “The Case of Prorogations”, I move to consider the decision in a broader historical setting, noting that it is broadly consonant with trends in relation to the prerogative and judicial review.

Part V — “Critical Analysis” — contains an assessment of the Supreme Court’s reasoning: tackling justiciability, doctrinal coherence, historical coherence, and remedy; in turn, I raise a number of concerns about the decision which, in a nutshell, turned doctrine and history on their heads. Although the Case of Prorogations will take its place in the pantheon of great common law decisions, Lady Hale and Lord Reed’s analysis is problematic.

Lastly, in Part VI, I conclude by offering some observations on “democratic decay”, further the mission of this volume, arguing that the UK Supreme Court’s decision was unnecessary and liable to provoke a political backlash.

Suggested Citation

Daly, Paul, A Critical Analysis of the Case of Prorogations (February 17, 2021). (2021) Canadian Journal of Comparative and Contemporary Law (Forthcoming), Ottawa Faculty of Law Working Paper No. 2021-08, Available at SSRN: https://ssrn.com/abstract=3787470

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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