01 October 2019
The Rule of Law, not the Rule of Politics
On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister, Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. Parliament was not and had never been prorogued. But this is not likely to be the end of such questioning of the fundamentals of the constitution and – in particular – the limits of executive power. Continue reading >>
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25 September 2019
A Constitutionally Momentous Judgment That Changes Practically Nothing?
The Supreme Court’s judgment in Cherry/Miller (No 2) that the prorogation of Parliament was unlawful, null and of no effect was a bold move as a matter of public law. It represents a constitutional court willing to assert its authority as guardian of the constitution. But although potentially of long-term constitutional moment, it changes very little with regard to the fundamental constitutional and political issue of Britain’s membership of the European Union. Continue reading >>
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21 September 2019
Justiciable but not Necessarily Illegal
The UK Supreme Court is about to decide the fate of the UK Government’s decision to prorogue Parliament. Two are the main issues: First, justiciability – whether the Government’s decision can be subject to judicial scrutiny or whether it lies beyond the Judiciary’s remit. Second, if judicial review is available, whether the Government’s decision is lawful. Although the two issues prima facie appear to be distinct, in this case they are intertwined. I believe that the issue of prorogation in this case is justiciable and that the Government’s decision to prorogue falls within the legal boundaries of the Constitution. Continue reading >>16 September 2019
Where Power Lies or Where Power Lied?
Tomorrow, on Tuesday 17 September, the UK Supreme Court will be asked to consider appeals from the Court of Session in Scotland, and the High Court in England on the question of whether prime minister Boris Johnson’s advice to the Queen to prorogue parliament was lawful. Such a question will oblige the court to consider foundational questions of the separation of powers and the division between law and politics. It will also have to decide whether the motives of executive decision-making can be judged against principles of parliamentary sovereignty, democracy and the rule of law. If the Supreme Court finds the advice was unlawful, an even more difficult question arises in what sort of order may be given to remedy such a legal wrong: can the court order Parliament to return to a session which has ended, or the Queen to ‘un-prorogue’? Continue reading >>
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14 September 2019
The UK Constitution and Brexit – Five Brief External Observations
As a constitutional lawyer one therefore cannot help but ask: What is happening to the British Constitution? What is going on with the political and parliamentary culture of a nation so proud of its parliamentary history? And what about the Queen? In the following, I would therefore like to share five very brief and somewhat unsystematic observations of these recent developments from a German perspective. Continue reading >>06 September 2019
A Matter of Confidence
On lying without expecting belief and other harbingers of constitutional doom. Continue reading >>
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02 September 2019
The Next Few Days Will Reveal where the Heart of Power Lies in the British Constitution
Were the UK government to ignore a Supreme Court judgment finding the advice to prorogue illegal, or even refuse to recognise an Act of Parliament directing action to prevent a no-deal Brexit, this would be a constitutional crisis. This will bring all institutions into conflict – most immediately the crown, which may be obligated (one way or another) to make an extremely polarising political choice. Continue reading >>
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31 August 2019
Boris and the Queen: Lessons from Canada
UK Prime Minister Boris Johnson’s advice to the Queen that she prorogue Parliament for several weeks has sparked vociferous controversy. The unfortunate situation, which threatens to do real damage to constitutional, political and social relationships, has some analogues in former British dominions such as Canada. Continue reading >>
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30 August 2019
Brexit as Fate
On Boris, the seven plagues of Brexit and other matters of constitutional myth-making Continue reading >>
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29 August 2019