Debating the Supreme Court’s prorogation judgment
The Supreme Court’s judgment in Miller/Cherry UKSC 41, holding that Parliament was not prorogued on 10 September, is by any measure a momentous judgment. Policy Exchange’s Judicial Power Project commented on the litigation before this judgment was handed down, including by outlining our understanding of the legal issues in question and how the Supreme Court should resolve them: see especially Parliamentary Sovereignty and the Politics of Prorogation. We have had much to say about the judgment itself, including yesterday publishing a major critique by Professor John Finnis, entitled The unconstitutionality of the Supreme Court’s prorogation judgment.
The judgment’s significance for our law and constitution will turn partly on how it is received, not only by parliamentarians who may in future exercise Parliament’s authority to reverse some of the judgment’s consequences, but also by lawyers, judges, scholars and the general public. The way in which the judgment is taken up and remembered – as a vindication of fundamental principle, or a heroic development of constitutional law, or as a historic mistake – will help shape the common law, in this country but perhaps also in other common law systems.
The judgment’s reception clearly matters and there is plainly a wide range of opinion within the legal academy and legal profession about the judgment’s merits, which makes it all the more important that the judgment’s merits and implications be examined closely and debated freely.
With this in mind, we are pleased to be able to publish a series of short comments on the judgment, which will examine, inter alia, the Supreme Court’s reasoning, the judgment’s implications for the constitutional role of the courts more generally, comparative perspectives on and evaluations of the judgment and its broader consequences. We are grateful to the many colleagues who have agreed to participate, especially to those who take a different view to us about the merits of the Supreme Court’s judgment.
The series begins today with Alison Young’s full-throated defence of the judgment, Nick Barber’s argument that the judgment was a justified development of the law in response to unconstitutional action, Anne Twomey’s analysis of the extent to which the judgment invites legal challenges to dissolution and royal assent and Jane Smith’s exploration of the judgment’s implications for the idea of non-justiciability. Further comments coming soon.
- Alison Young (University of Cambridge): Deftly guarding the constitution
- Nick Barber (University of Oxford): Constitutional hardball and justified development of the law
- Anne Twomey (University of Sydney): Article 9, parliamentary proceedings and the consequences of Miller (No 2)
- Jane Smith (formerly University of Edinburgh and advocate in practice in Scotland): The demise of non-justiciability
- Aileen McHarg (University of Durham): The Art of Judicial Disguise
- Stephen Tierney (University of Edinburgh): Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision
- David Tomkins (University of Newcastle, Australia): The Anisminic of justiciability?
- Paul Yowell (University of Oxford): Miller (No 2) and political questions
- Jack Simson Caird (Bingham Centre for the Rule of Law): The politics of constitutional interpretation in the UK
- Michael Sexton: Judicialising politics
- Catherine Barnard (University of Cambridge):: The unanimity in Cherry/Miller
- Emmett Macfarlane: Prorogation, politics and the courts: a Canadian perspective
- John Larkin: The Supreme Court on prorogation and its justiciability
- Stephen Laws: The Supreme Court’s unjustified lawmaking
- Philippe Lagassé (Carleton University, Ottawa): Taming the Crown in Court: Waning Executive Dominance in the United Kingdom