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Supreme court hearing on suspension of parliament – key issues Supreme court hearing on suspension of parliament – key issues
(about 18 hours later)
The supreme court hearing on the suspension of parliament by Boris Johnson will test the foundations of the UK’s unwritten constitution with arguments about the respective powers of parliament, the courts and the government.The supreme court hearing on the suspension of parliament by Boris Johnson will test the foundations of the UK’s unwritten constitution with arguments about the respective powers of parliament, the courts and the government.
Should judges be able to make such politically sensitive decisions?Should judges be able to make such politically sensitive decisions?
One of the keys issues is about “justiciability”, or whether the prime minister’s use of the royal prerogative should be subject to legal scrutiny. The Judicial Power Project at the thinktank Policy Exchange has argued that judges are usurping parliament’s powers through excessive “judicial activism”. Prof Richard Ekins, the head of the project, argued this week that “proroguing parliament in no way flouts parliamentary sovereignty”.One of the keys issues is about “justiciability”, or whether the prime minister’s use of the royal prerogative should be subject to legal scrutiny. The Judicial Power Project at the thinktank Policy Exchange has argued that judges are usurping parliament’s powers through excessive “judicial activism”. Prof Richard Ekins, the head of the project, argued this week that “proroguing parliament in no way flouts parliamentary sovereignty”.
The supreme court of the United Kingdom was formally established on 1 October 2009. It is the ultimate court for hearing cases of the greatest public or constitutional importance, and is the final court of appeal in the UK, except for criminal cases heard in Scotland.
The supreme court took over the judicial functions of the House of Lords, separating the judiciary from the legislature. It brought an end to the system of appealing to the "lords of appeal in ordinary" - commonly known as the law lords.
The court comprises the president and deputy president and 10 other judges of the supreme court. Judges are appointed by the Queen on the advice of the prime minister, to whom a name is recommended by a special selection commission. The prime minister is obliged to recommend this name.
The judgments in all decided cases from the court are published on the court's website.
But many legal experts point out judicial reviews frequently involve political matters. Mark Elliott, professor of law at Cambridge University, has stated that the high court in London’s view that the “political” nature of the issue shields it from judicial review is entirely wide of the mark.But many legal experts point out judicial reviews frequently involve political matters. Mark Elliott, professor of law at Cambridge University, has stated that the high court in London’s view that the “political” nature of the issue shields it from judicial review is entirely wide of the mark.
Will the differences between Scottish and English law be significant?Will the differences between Scottish and English law be significant?
Lindsay Stirton, professor of public law at Sussex University, says the differences date back to the Glorious Revolution. The English and Welsh parliament passed the bill of rights in 1688, which merely states that “parliaments ought to be held frequently”; the 1689 Scottish claim of right goes further, requiring that “parliaments ought to be frequently called and allowed to sit”.Lindsay Stirton, professor of public law at Sussex University, says the differences date back to the Glorious Revolution. The English and Welsh parliament passed the bill of rights in 1688, which merely states that “parliaments ought to be held frequently”; the 1689 Scottish claim of right goes further, requiring that “parliaments ought to be frequently called and allowed to sit”.
“The supreme court,” Stirton argues, “should apply the most stringent standards. They should uphold the orders of the Scottish courts, while recognising that courts in other parts of the United Kingdom may have acted properly in not issuing any such orders.”“The supreme court,” Stirton argues, “should apply the most stringent standards. They should uphold the orders of the Scottish courts, while recognising that courts in other parts of the United Kingdom may have acted properly in not issuing any such orders.”
What arguments are likely to be pursued to persuade the court that Johnson acted unlawfully?What arguments are likely to be pursued to persuade the court that Johnson acted unlawfully?
The main contention will be that the prime minister’s action was an abuse of both his powers and of parliamentary sovereignty. Most landmark cases, including the supreme court article 50 case in 2016, were about politics, it will be asserted. Johnson’s decision to prorogue parliament was an act of bad faith in his exercise of power, the court will be told.The main contention will be that the prime minister’s action was an abuse of both his powers and of parliamentary sovereignty. Most landmark cases, including the supreme court article 50 case in 2016, were about politics, it will be asserted. Johnson’s decision to prorogue parliament was an act of bad faith in his exercise of power, the court will be told.
The London high court’s refusal to engage in hypothetical arguments may be attacked: lawyers are likely to argue that the UK’s fraying constitution deserves to undergo stress-testing. The idea that no human rights are involved will also be questioned by lawyers contending that it is one of the most fundamental rights to have your MP expressing your views in parliament.The London high court’s refusal to engage in hypothetical arguments may be attacked: lawyers are likely to argue that the UK’s fraying constitution deserves to undergo stress-testing. The idea that no human rights are involved will also be questioned by lawyers contending that it is one of the most fundamental rights to have your MP expressing your views in parliament.
But Timothy Endicott, professor of legal philosophy at Oxford University, has said: “The courts and politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of parliament’s proceedings.”But Timothy Endicott, professor of legal philosophy at Oxford University, has said: “The courts and politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of parliament’s proceedings.”
Is the supreme court becoming a constitutional court?Is the supreme court becoming a constitutional court?
It is, in effect, already a constitutional court. One of its established roles is to assess whether laws passed by the Welsh assembly are legal. Devolution may be creating more high-profile legal disputes. The seismic political impact of Brexit has certainly handed crucial political decisions to the judges.It is, in effect, already a constitutional court. One of its established roles is to assess whether laws passed by the Welsh assembly are legal. Devolution may be creating more high-profile legal disputes. The seismic political impact of Brexit has certainly handed crucial political decisions to the judges.
UK supreme courtUK supreme court
Boris JohnsonBoris Johnson
ScotlandScotland
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