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Case study no.1
Was it legal for the executive to leave the EU, by invoking article 50, without parliamentary consent?
How did the UK join the EU?
Though parliament following a referendum.
Therefore, it’s argued that they must be consulted if we leave.
Constitutional issues from leaving the EU
Parliament is cut off from a source of the constitution, so they must decide whether we leave, rather than just the government
More arguements that this was illegal
We have parliamentary sovreignty, not executive
Another Act of Parliament is required, as first one only caused a referendum, didn’t say what to do afterwards.
Leaving the treaty is more significant than just changing laws due to EU laws, which executive can do
How did the supreme court vote on this issue?
Majority voted that it was illegal due to reasons above.
However, some did vote against.Why
What does this outcome show about the supreme court?
Didnt all agree, showing that there are legitimate differences of opinions on the law, as it’s up to interpretation.
Court rule against the government, so it’s an effective check on the executive.
What did Boris Johnson do? (Case study no2)
He asked the Queen to prorogue Parliament for 5 weeks just after summer recess of 2019.
Is prorogation unusual?
No, it is usually a straightforward process and has been a formality for more than a century, used for the government to prepare their policies before the Queen’s Speech.
What was controversial about Johnson’s actions?
He decided to prorogue parliament just weeks before the UK’s scheduled departure from the EU.
During the height of the Brexit Crisis, with many arguing that this was his attempt to stop Parliament from blocking a no-deal Brexit.
What was the first legal question that the Supreme Court had to resolve?
Whether the Prime Minister’s decision to use his prerogative powers to advise the Queen to prorogue parliament was justiciable.
Meaning, can the courts get involved and decide this or not, the Supreme Court judged that they could.
What’s a common misconception?
The courts scrutinised Johnson’s decision to advise the Queen, they cannot scrutinise the Queen’s decision itself to prorogue parliament.
Did the courts find Boris Johnson’s actions lawful?
No, all justices present voted unanimously that his actions were unlawful, void and of no effect as it was
How did the Supreme Court justify its decision?
They argued that this was not a normal prorogation as it prevented parliament from carrying out its constitutional role for 5 out of 8 weeks before EU exit day on 31st November, in which they would be unable to hold government to account.
It was outside of the PM’s powers to give the Queen such advice.
What was the effect of the ruling?
Parliament returned the next day.
What does this ruling show about our branches of power?
It secured the absolute supremacy of parliament over the government/ executive.
Also marks a significant moment in asserting an enhanced position for the judiciary in our constitution, as here it policed the executive, potentially a further advance in the development from supreme to constitutional court.
