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19 September 2019 / Michael Zander KC
Categories: Features , Brexit , Constitutional law
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What can Sir John Major add to the Supreme Court?

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Michael Zander QC on the former prime minister’s written case

The written case submitted by Lord Garnier QC on behalf of Sir John Major argues first as to why the Divisional Court was wrong in its decision ([2019] EWHC 2381 QB) that the issue was not justiciable.

Why the Divisional Court was wrong

The Divisional Court decided (at [41]) that it was unnecessary to explore the facts. ‘If that conclusion were correct,’ Sir John argues, ‘the consequence would be that there is nothing in law to prevent a Prime Minister from proroguing Parliament in any circumstances or for any reason’ (para 4).

The Divisional Court said (at [66]) that it was unhelpful to consider extreme hypothetical examples. To dismiss hypothetical scenarios simply on the ground that they are extreme was not a safe ground on which to lay down legal principles of general application. ‘That is particularly so in the present context, where many developments which until recently might have been thought to be extreme hypothetical examples have actually occurred’ (para 6.3).

It

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