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Monday 30 September 2019

Future Prorogation Loopholes

I have had a chance to read the Supreme Court judgement on the infamous Johnson prorogation, and found some items of interest.

  1. On whether the Queen has no choice but to accept advice (as all sides seemed to accept), the judges say:  "It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter."  That seems to leave a bit of wriggle room for the future.
  2. A second point comes to why the Johnson prorogation is indeed justicifiable.  In concluding that it is, the Court argues: "It is, however, important to understand that this argument only arises if the issue in these proceedings is properly characterised as one concerning the lawfulness of the exercise of a prerogative power within its lawful limits, rather than as one concerning the lawful limits of the power and whether they have been exceeded."  The Court is saying that the legal limits can only be decided by lawyers, and as I read their judgement, that is a crucial point.
  3. A third area where the "Supremes" make a point that may be relevant for the future if certain people wish to pursue confiscatory powers is the note that: "For example, they include the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation (Burmah Oil Co Ltd v Lord Advocate [1965] AC 75)".
I am also struck by the way the Court determines purely on the evidence in front of it.  For instance, Sir John Major's evidence is referred to as "unchallenged" and the Court proceeds on that basis.  Mr Johnson must be ruing his decision not have put a statement into the Court of Sessions regarding his motives.

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