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19 September 2019
Issue: 7856 / Categories: Legal News , Brexit , Constitutional law
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Nation transfixed by the Supreme Court

All eyes were on the Supreme Court livestream this week as eleven Justices heard argument on the matter of whether the decision to prorogue Parliament was lawful.

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.

MOVERS & SHAKERS

Thackray Williams—Lucy Zhu

Thackray Williams—Lucy Zhu

Dual-qualified partner joins as head of commercial property department

Morgan Lewis—David A. McManus

Morgan Lewis—David A. McManus

Firm announces appointment of next chair

Burges Salmon—Rebecca Wilsker

Burges Salmon—Rebecca Wilsker

Director joins corporate team from the US

NEWS
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Disputing parties are expected to take part in alternative dispute resolution (ADR), where this is suitable for their case. At what point, however, does refusing to participate cross the threshold of ‘unreasonable’ and attract adverse costs consequences?
When it comes to free legal advice, demand massively outweighs supply. 'Millions of people are excluded from access to justice as they don’t have anywhere to turn for free advice—or don’t know that they can ask for help,' Bhavini Bhatt, development director at the Access to Justice Foundation, writes in this week's NLJ
When an ex-couple is deciding who gets what in the divorce or civil partnership dissolution, when is it appropriate for a third party to intervene? David Burrows, NLJ columnist and solicitor advocate, considers this thorny issue in this week’s NLJ
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
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