Judicial Power Project
  • Home
  • About
    • About the Project
    • People
  • Posts
    • In the Media
    • Series
      • Judicial Review and Judicial Independence
      • Human Rights and Political Wrongs
      • Constitutional Rights and Constitutional Design
      • Legislated Rights
  • Debates
    • Debating the Supreme Court’s prorogation judgment
    • Commentary on Lord Sumption’s Reith Lectures
    • Finnis on Judicial Power
    • Ekins and Forsyth on Evans
    • Varuhas on Judicial Review and Political Accountability
    • Brexit and Judicial Power
    • ALBA Papers on Judicial Activism
  • Lawfare
    • Protecting Those Who Serve | Richard Ekins, Patrick Hennessey and Julie Marionneau
    • Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat
    • The Fog of Law: An introduction to the legal erosion of British fighting power
  • Publications
  • Events
Select Page
Philippe Lagassé: Taming the Crown in Court: Waning Executive Dominance in the United Kingdom

Philippe Lagassé: Taming the Crown in Court: Waning Executive Dominance in the United Kingdom

10 Oct 2019 | Debating the Supreme Court’s prorogation judgment

The Supreme Court’s prorogation judgement is the latest episode in a larger parliamentary and judicial effort to dampen the strength of the executive in constitution. This is not to deny the constitutional significance (or novelty) of the judgement, but it does raise...
John Larkin: The Supreme Court on prorogation and its justiciability

John Larkin: The Supreme Court on prorogation and its justiciability

4 Oct 2019 | Debating the Supreme Court’s prorogation judgment

The prorogation of Parliament or the advice on which such prorogation was based has not, historically, been thought to have been justiciable. The Supreme Court has decided that it is justiciable but determines that question not separately or as a preliminary issue but...
Stephen Laws: The Supreme Court’s unjustified lawmaking

Stephen Laws: The Supreme Court’s unjustified lawmaking

4 Oct 2019 | Debating the Supreme Court’s prorogation judgment

In Cherry/Miller, the Supreme Court chose to change the law by creating a new legal limitation on the prerogative to prorogue Parliament.  Whether one thinks the Court was within its rights to change the law, the judgment was, from a practical point of view, clearly...
Emmett Macfarlane: Prorogation, politics and the courts: a Canadian perspective

Emmett Macfarlane: Prorogation, politics and the courts: a Canadian perspective

4 Oct 2019 | Debating the Supreme Court’s prorogation judgment

The UK Supreme Court’s decision last week that Prime Minister Boris Johnson’s prorogation of Parliament was unlawful is an unprecedented judicial interference in matters concerning prerogative and will undoubtedly be subject to debate for some time. While any analysis...
Catherine Barnard: The unanimity in Cherry/Miller

Catherine Barnard: The unanimity in Cherry/Miller

3 Oct 2019 | Debating the Supreme Court’s prorogation judgment

Prior to the Supreme Court’s judgment, there was much speculation as to exactly how the Supreme Court would divide – 8:3, 7:4 or even 6:5 – and considerable speculation as to who would be on which side in the light of the questions posed and previous decisions made by...
Michael Sexton: Judicialising politics

Michael Sexton: Judicialising politics

3 Oct 2019 | Debating the Supreme Court’s prorogation judgment

The Supreme Court’s decision in Miller/Cherry that suspending Parliament was unlawful is an extraordinary contribution to a long term trend in Western countries: the judicialisation of politics, that is, the transfer of political, social and economic issues form...
Jack Simson Caird: The politics of constitutional interpretation in the UK

Jack Simson Caird: The politics of constitutional interpretation in the UK

1 Oct 2019 | Debating the Supreme Court’s prorogation judgment

The core of the task facing the Supreme Court in Cherry/Miller was to interpret and apply constitutional and legal principles. One of the striking things about the judgment is the forthrightness with which the justices set out their collective view about how the...
Paul Yowell: Miller (No 2) and political questions

Paul Yowell: Miller (No 2) and political questions

30 Sep 2019 | Debating the Supreme Court’s prorogation judgment

In Bush v Gore (2004) the US Supreme Court stopped Florida’s recount of votes in the presidential election, sealing George Bush’s slim lead. After time for reflection, influential US scholars argued that the case should have been treated as a political question, since...
Dr David Tomkins: The Anisminic of justiciability?

Dr David Tomkins: The Anisminic of justiciability?

30 Sep 2019 | Debating the Supreme Court’s prorogation judgment

Some cases end up deciding much more in retrospect than they did at the time they were decided. The case of Anisminic [1969] 2 AC 147 (HL) comes to mind as one of the clearest examples of such a case in public law, with later courts taking the judgment to be grounds...
Stephen Tierney: Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision

Stephen Tierney: Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision

30 Sep 2019 | Debating the Supreme Court’s prorogation judgment

The Government’s decision to use the prorogation power for questionable political purposes was a provocation to the courts. Unfortunately, the Supreme Court’s understandable discomfort with the Government’s move led it to search for, and ultimately create, a legal...
Aileen McHarg: The Art of Judicial Disguise

Aileen McHarg: The Art of Judicial Disguise

30 Sep 2019 | Debating the Supreme Court’s prorogation judgment

The prorogation case is undoubtedly the most challenging that the Supreme Court has had to deal with so far in its relatively short history, involving a high-stakes dispute in extremely politicised territory in which there was a real risk to the court’s authority.  It...
Alison Young: Deftly guarding the constitution

Alison Young: Deftly guarding the constitution

29 Sep 2019 | Debating the Supreme Court’s prorogation judgment

The Supreme Court’s decision in Miller v Prime Ministerand Cherry v The Advocate Generalis to be welcomed. It demonstrates a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the  UK’s constitution. The Supreme Court...
Anne Twomey: Article 9, parliamentary proceedings and the consequences of Miller (No 2)

Anne Twomey: Article 9, parliamentary proceedings and the consequences of Miller (No 2)

29 Sep 2019 | Debating the Supreme Court’s prorogation judgment

In Miller (No 2), the Supreme Court held that article 9 is intended to protect freedom of speech and debate in the Houses and their committees and the right of the Houses to manage their own affairs without external interference.  While prorogation may take place...
Jane Smith: The demise of non-justiciability

Jane Smith: The demise of non-justiciability

29 Sep 2019 | Debating the Supreme Court’s prorogation judgment

North and south of the Border, the courts at first instance dismissed the Miller/Cherry claims in short order as non-justiciable. Miller proceeded directly to the Supreme Court by virtue of the “leapfrog” procedure. Cherry, however, was appealed to the Inner House of...
Nick Barber: Constitutional hardball and justified development of the law

Nick Barber: Constitutional hardball and justified development of the law

29 Sep 2019 | Debating the Supreme Court’s prorogation judgment

Did the Supreme Court get Miller right?  The case was certainly one in which the judges developed, as opposed to merely applied, the law.  Even the very best lawyer could not have known for sure whether the judges would conclude that the abuse of the prerogative – and...
Debating the Supreme Court’s prorogation judgment

Debating the Supreme Court’s prorogation judgment

29 Sep 2019 | Debating the Supreme Court’s prorogation judgment

The Supreme Court’s judgment in Miller/Cherry[2019] 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,...

The Judicial Power Project is brought to you by Policy Exchange

Contact Us
info@policyexchange.org.uk | 0207 340 2650 | Policy Exchange, 8 - 10 Great George St, Westminster, London, SW1P 3AE

  • Twitter
  • RSS

Designed by Elegant Themes | Powered by WordPress