Abstract
On 24 September 2019, in a unanimous judgment the UK Supreme Court ([2019] UKSC 41) ruled that the Prime Minister’s action to prorogue (suspend) Parliament for 5 weeks in the run-up to the 31-10-2019 deadline of the UK leaving the European Union, was unlawful and of no effect, as it prevented Parliament from carrying out its constitutional functions without reasonable justification. Although the Court did not pronounce on the merits and demerits of Brexit, its decision delighted “Remainers” but appalled “Leavers”. The Court ruling epitomises the potency of constitutional review by an independent judiciary. The paper applies collective choice theory to analyse the ruling of the Supreme Court. This is accomplished by (a) examining the legal basis of the Court ruling; (b) reviewing arguments for judicial review and (c) exploring the effect of the Court as an additional player in the game of collective choice in a spatial decision model.
Highlights
On 24 September 2019, in a unanimous judgment of eleven Justices, the UK Supreme Court, in R v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41, ruled that the Prime Minister’s action to prorogue Parliament for 5 weeks during the period 09-09-2019–14-10-2019, while the UK was scheduled to leave the European Union on 31-10-2019, was unlawful, because in so doing Parliament was prevented from carrying out its constitutional functions without reasonable justification
The ruling of the Court to overturn a decision of the executive demonstrates the review power of an independent judiciary and demonstrates the extent of judicial activism, which critics allege as counter-majoritarian and antidemocratic
First, the issue of the lawfulness of the advice given by the Prime Minister to the Monarch is justiciable, since there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power
Summary
On 24 September 2019, in a unanimous judgment of eleven Justices, the UK Supreme Court, in R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41, ruled that the Prime Minister’s action to prorogue (suspend) Parliament for 5 weeks during the period 09-09-2019–14-10-2019, while the UK was scheduled to leave the European Union on 31-10-2019, was unlawful, because in so doing Parliament was prevented from carrying out its constitutional functions without reasonable justification. On appeal, the Inner House Court of Session, Scotland’s supreme civil court, held that the advice given to the Queen was justiciable, that it was motivated by the improper purpose of stymying parliamentary scrutiny of the executive, and that it, and the prorogation which followed, were unlawful and null and of no effect (13 September: [2019] CSIH 49). It delivered a unanimous verdict on 24 September ([2019] UKSC 41) It held that, first, the issue of the lawfulness of the advice given by the Prime Minister to the Monarch is justiciable, since there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. As our focus here is the legal case and the interactions between the executive, the legislature and the judiciary, we limit our narrative of political events at this point, even though there have been important new developments since which are still playing out (see the "Appendix")
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