All eyes on the Supreme Court…

Michael Zander QC, Emeritus Professor at LSE, writes in NLJ online that he previously agreed with retired Justice Lord Sumption that the court would rule the case not justiciable.

‘But having read Lord Pannick’s Written Case for Gina Miller, the lead appellant, I have changed my mind,’ he says.

‘I now think there is a fair chance that the decision will go the other way and reverse the unanimous decision of the Divisional Court given on 6 September by the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division.’

Zander outlines Lord Pannick’s 25-page argument, in an NLJ article today (see 'What odds on Boris Johnson losing the Supreme Court case?'), the first of several daily dispatches from the court. 

In his written case, Lord Pannick argues the Divisional Court was wrong to hold that the first question was whether the matter was justiciable and only if so, whether there had been a public law error. He highlights the fact the prime minister did not make a witness statement explaining the decision. Lord Pannick further argues that the legal principle of parliamentary sovereignty was engaged and the advice given to the monarch was an abuse of power because of the length of prorogation and because of evidence that the prime minister was, Lord Pannick says, ‘acting by reference to improper considerations which are inconsistent with the very notion of Parliamentary sovereignty’.

Lord Pannick concludes by asking for the same remedy as that given by the Inner House of the Court of Session last week, namely that the prime minister’s advice to prorogue was unlawful and therefore null and void.

The case is one of three being heard by 11 Justices this week in a three-day hearing. A decision may be given before the end of the week, with the full judgment delivered at a later stage.

Last week, the Court of Session (Inner House) held the prime minister acted unlawfully when advising the queen to prorogue Parliament because its purpose was to ‘stymie’ Parliament. Prior to this, the High Court of England and Wales held that the matter was non-justiciable. Similarly, the High Court in Belfast held last week that the court did not have authority to decide on a claim that a no-deal Brexit and imposition of hard border would break the Good Friday peace agreement, as it was a political matter.

View Michael Zander’s article on the case here.