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18 September 2019 / Michael Zander KC
Categories: Features , Brexit , Constitutional law
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Prorogation 2019: the government’s case

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Michael Zander QC on the government’s argument that proroguing Parliament was lawful

The government argues that the Inner House of the Court of Session was wrong in holding ([2019] CSIH 49) that the prorogation of Parliament was unlawful and that the Divisional Court was correct in holding ([2019] EWHC 2381 (QB), [2019] All ER (D) 24 (Sep)) that it was lawful. The government’s oral argument is being divided between Lord Keen QC, the Advocate General for Scotland, and Sir James Eadie QC for the Attorney General. However, they presented a joint written case.

The government’s written case advances several different propositions.

Not justiciable

The authorities established that the exercise of some powers, both statutory and prerogative, were non-justiciable. Whether the exercise of a power was reviewable by the courts depended on its subject matter (‘the paradigmatic examples are decisions of high policy in defence and foreign affairs and domestic politics’ (para 56)). The reason in some contexts was the inability of the courts ‘to apply judicial or manageable standards to determine the lawfulness of the exercise of prerogative power’,

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