Writing in a
number of dispatches on proceedings in NLJ this week, Michael Zander QC,
Emeritus Professor, LSE, said he had initially agreed with retired Justice Lord
Sumption that the court would rule the case not justiciable. After reading Lord
Pannick’s Written Case for Gina Miller, the lead appellant in the English High
Court appeal, however, he said: ‘I have changed my mind.
‘I now think there is a fair chance that the decision will go the other way.’
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’.
After looking
at the Advocate General Lord Keen’s arguments on behalf of the government,
Zander said the government also had ‘a strong case’.
Outlining the
main points put forward by the government’s legal team, Zander writes that the
government’s arguments include that the power to prorogue Parliament has
historically been ‘used for political purposes including the purpose of
restricting the time available to debate legislation and for long periods
including at moments of political importance. In the First World War,
Parliament was prorogued for a period of 53 calendar days. In August 1930 after
the Wall Street Crash, it was prorogued for 87 days’.
Moreover,
‘advice about prorogation involved the weighing up of political considerations,
including how most effectively to secure the government’s political and
legislative objectives and agenda,’ Zander writes.
The case
continues, at the time of going to press.
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