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Legal Explanation Needed Please......
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OK the prorogation was deemed unlawful last week and apparently the law that it contravenes is the "Claim of Right Act (Scotland) 1689" - a Scottish law made before the UK was formed. Can some legal beagle explain how a law made in another country before the act of union can possibly apply to the whole of the UK, thanks.
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//NJ, which legal system should be applied in the UK?//
It doesn't really matter so long as it applies to the entire UK. The Scottish, the English, the NI or bits of all three.
//The Supreme Court could uphold the decisions of the Inner Court AND the High Court which would mean the Prorogation is unlawful.//
I thought those two courts came to different conclusions.
It doesn't really matter so long as it applies to the entire UK. The Scottish, the English, the NI or bits of all three.
//The Supreme Court could uphold the decisions of the Inner Court AND the High Court which would mean the Prorogation is unlawful.//
I thought those two courts came to different conclusions.
Lord Carloway
"Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be
true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying “the principles of democracy and the rule of law” (Moohan v Lord
Advocate 2015 SC (UKSC) 1, Lord Hodge at para [35]). The terms of the Claim of Right are not breached simply because Parliament does not sit for a month or so. Parliament has,
throughout the year, been allowed to sit"
Lord Brady
"Parliament the master of its own proceedings
[92] Clearly Parliament is the master of its own proceedings but, as I would see it, what the petitioners seek to achieve is to allow it to act as such.
No breach of the Claim of Right Act 1689
[93] As previously touched on, I would agree with the Lord Ordinary on this point."
Lord Drummond Young
The effect of the prorogation under
consideration, in particular its length, is that proper Parliamentary scrutiny is rendered all but impossible. As I have noted, I consider that the inference must inevitably be drawn, on a strictly objective basis, that that was the purpose of the prorogation. In my opinion that is not a proper purpose for proroguing Parliament. I accordingly conclude that the decision to
prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of
the prerogative power. It follows that the prorogation was ultra vires. In my opinion the
court should pronounce a declarator to that effect."
He also refers to the English equivalent of the Claim of Rights, the Bill of Rights.
"Since such scrutiny is a central pillar of the good governance principle which is enshrined in the constitution, the decision cannot be seen as a matter of high policy or politics. It is one which attempts to undermine that pillar. As such, if demonstrated to be
true, it would be unlawful. This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying “the principles of democracy and the rule of law” (Moohan v Lord
Advocate 2015 SC (UKSC) 1, Lord Hodge at para [35]). The terms of the Claim of Right are not breached simply because Parliament does not sit for a month or so. Parliament has,
throughout the year, been allowed to sit"
Lord Brady
"Parliament the master of its own proceedings
[92] Clearly Parliament is the master of its own proceedings but, as I would see it, what the petitioners seek to achieve is to allow it to act as such.
No breach of the Claim of Right Act 1689
[93] As previously touched on, I would agree with the Lord Ordinary on this point."
Lord Drummond Young
The effect of the prorogation under
consideration, in particular its length, is that proper Parliamentary scrutiny is rendered all but impossible. As I have noted, I consider that the inference must inevitably be drawn, on a strictly objective basis, that that was the purpose of the prorogation. In my opinion that is not a proper purpose for proroguing Parliament. I accordingly conclude that the decision to
prorogue contained in the Order in Council of 28 August 2019 was not a proper exercise of
the prerogative power. It follows that the prorogation was ultra vires. In my opinion the
court should pronounce a declarator to that effect."
He also refers to the English equivalent of the Claim of Rights, the Bill of Rights.
And I've answered that, too. Unlawful means "against the Rule of Law", not against a specific law. For example, the High Court ruling (in favour of the government) was mostly about whether the courts even could rule on such a thing, but also partly turned on whether a lengthy prorogation would violate the principle of Parliamentary Sovereignty. But there is no law that dictates that Parliament is sovereign. Indeed, there's no explicit law (in England) that states that Parliament has to sit at all. It just does, most of the time. But convention dictates that Parliament should sit at least *some* of the time, in order to pass legislation, hold the executive to account, etc.
Maybe it's also the difference between common law (ie precedent and custom) as opposed to Statute Law, which is I think what Khandro was referring to when he asked.
Maybe it's also the difference between common law (ie precedent and custom) as opposed to Statute Law, which is I think what Khandro was referring to when he asked.
A lot of UK law is "a little vague" in some sense, because the system is based on convention and precedent to perhaps an extraordinary degree. But that's part of what made the UK historically strong; in principle it allows us to meet new situations while being mindful of, but not beholden to, the past.
In the end, the difference between the English and Scottish Judgements appears to hinge at least somewhat on whether or not the Government's advice was based on a Queen's Speech. The High Court appears to have taken not very seriously the claim that it was all about Brexit; the Scottish Court disagreed and has basically accused the government of lying about its purpose.
It also hinged on whether the power to prorogue is justiciable at all. I'm nowhere near well-versed enough to understand that question, although it should be noted that even the High Court states that advice to the queen is well-established by not to be justiciable *sometimes*.
It also hinged on whether the power to prorogue is justiciable at all. I'm nowhere near well-versed enough to understand that question, although it should be noted that even the High Court states that advice to the queen is well-established by not to be justiciable *sometimes*.
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