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Comment by Kaibeezy | Hacker News Reader

Why this verdict is so important:

It would open the door ... to a form of judicial review that is widely accepted in the United States, which has a codified Constitution and a Supreme Court that actively interprets it.

Britain, by contrast, relies on an unwritten set of traditions and conventions that have treated a sovereign Parliament as the supreme law of the land. Once the courts venture into the political sphere and begin passing judgment on Parliament’s actions, legal analysts say, there is no going back.

https://www.nytimes.com/2019/09/24/world/europe/uk-supreme-c...

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> Once the courts venture into the political sphere and begin passing judgment on Parliament’s actions, legal analysts say, there is no going back.

The court explicitly did not pass judgement on an action of Parliament.

From page 3 of the summary (https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summar...)

> But it is quite clear that the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.

Instead it passed judgement on an action of the government which it has done for centuries.

From page 2 of the summary:

> The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”.

Do you not find it ironic that you're comment says the court acted to ensure the government respects the sovereignty of parliament? Your own or quoted words say sovereign Parliament as the supreme law of the land which btw has always been subject to the courts and latterly the ECJ.

Government is not parliament. The UK supreme Court upheld the sovereignty of parliament over government within narrow limits: prorogation must be consensual and justified.

We already have judicial review applying to governmental actions and ministerial decisions. This is not an application of judicial review to acts of Parliament. The prorogation was an act of the government, not Parliament.

Good point. WUWT NYT? Investigating...

OK, best I can figure is NYT is trying to make the point that if the UK Supreme Court is becoming willing to get involved with such highly political matters, there's no reason they wouldn't seek to extend that to Parliamentary matters. Does that comport with the facts and opinions here?

Oh, they did the usual thing of finding a quote from the other side to put in the article. That quote was of course wrong, but they probably felt the need to put it in for balance.

Technically, they've upheld the Scottish court's ruling. I'm sort of seeing the Scottish courts focused on it being illegal for Parliament not to be able to do its job. Two sides of a 2-dimensional object.

I think that since this is the English case the Scottish case now evaporates and doesn't get appealed separately, so we don't get to find out how that would have worked out.

They upheld the Scottish judgement, and overturned the English one. It was both cases.

They reached the same conclusion as the Scottish case, but with somewhat different reasons. They avoided the issue about the PM’s motivations/purpose that the Scottish judgement focused on. Instead, they said the impact of the prorogation on Parliament’s ability to do its job made it unlawful, so they didn’t have to consider the PM’s motivations.

As noted in the ruling, they are prohibited from ruling on exclusively Parliamentary matters, both by the Bill of Rights 1688 (Parliament of England and Wales):

> That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

And Claim of Right 1689 (Parliament of Scotland):

> That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members.

Whilst the Court determines the scope of Parliamentary privilege (i.e. determining what constitutes a proceeding of Parliament), there is a very clear reason they would not extend their purview to Parliamentary matters, and clearly they have no power to overrule Acts of Parliament.

Yes this was an important part of the ruling, that the prorogation was considered to be an act imposed from outside upon parliament and not of parliament itself.

That was never in doubt, surely? It's a "royal prerogative" power. Technically the prerogative is unreviewable but "Minister's advice" is.

Well there was some doubt. The High Court ruled it not judiciable because it considered it was an action of parliament.

The High Court ruled it non-justiciable as inherently political (a similar approach to the 'political question' doctrine in US federal courts).

The question the Supreme Court grappled with was whether the actual act of prorogation was a "proceeding in Parliament" or not. If it was, then the court can't overturn its effect despite the illegality they found in the earlier parts of the process (advice and Order-in-Council) as proceedings in Parliament are exempt from judicial scrutiny by the Act of Settlement 1688. They ruled that it wasn't (despite happening in Parliament) as prorogation is inherently an executive imposition from outside and therefore not a Parliamentary proceeding. Consequently they could rule the prorogation "void and of no effect" rather than merely making a declaration of unlawfulness or instructing the PM to have Parliament recalled.

They haven't passed judgement on Parliament's actions, just the executive's.

This wasn't an action taken by Parliament, it was an action taken by a private citizen and his assistants. It's just that the private citizen happened to be the Prime Minister. Individual members of parliament can still be subject to the law, without threatening the supremacy of parliament. After all, the laws these judges are adjudicating on are made by parliament.

Their ruling is that it wasn’t a parliamentary decision so they haven’t overruled parliament.

First, prorogation was an act of the executive, not parliament.

Second, the courts have previously acted to bring acts of parliament under judicial review, with the Investigatory Powers Act https://www.libertyhumanrights.org.uk/news/press-releases-an...

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