Writing in NLJ this week, barrister and fellow of St John’s College, Cambridge, Dr Michael Arnheim opines that the 11 Justices should, in his view, have upheld the Divisional Court’s decision that the case was not justiciable. He writes that the Justices placed considerable reliance on The Case of Proclamations (1611), in which Sir Edward Coke held that ‘the King hath no prerogative, but that which the law of the land allows him’. Arnheim points out that, while this meant the King could not legislate on his own without Parliament, there was no suggestion that the judges could do so either. His argument ranges across common law, Donoghue v Stevenson and the 1985 GCHQ case.
Also in this week’s NLJ, Simon Parsons, a former associate professor of law at Solent University, asks if the constitutional role of the Supreme Court has changed. While noting the prime minister’s five-week prorogation was ‘outrageous’, given prorogation typically lasts six days, Parsons writes that the court’s decision ‘represents another move towards a legal constitution as prorogation is, in extreme cases, subject to supervision by the courts and not just subject to constitutional convention'.
More court drama is anticipated as the prime minister and his team scramble to push Brexit over the 31 October line, deal or no deal, amid rising furore over their attitude to the rule of law. The case requesting the Court of Session to use its nobile officium powers to sign a letter requesting an Art 50 extension in accordance with the Benn Act, in the event the prime minister refuses, is scheduled in the Outer House this week, with judgment expected on Monday and Inner House appeal on Tuesday. Under the Benn Act, the prime minister is legally required to ask the EU for an Art 50 extension until 31 January 2020 if he hasn’t agreed a deal by 19 October.
Jolyon Maugham QC, one of the lawyers working on the case, has said he expects it to be appealed to the Supreme Court.
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