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Was the 2019 UK Supreme Court Judgement 2019 UKSC 41 Flawed?

The UK Supreme Court Judgement [2019] UKSC 41, made on 24 September 2019, rules that the prorogation of Parliament by the Prime Minister was unlawful, and that no reason had been given for the extra 4 days' prorogation. The judgement that the prorogation was unlawful was made, I understand, largely on the basis in that it prevented Parliament carrying out its proper duties.

However, the Judgement does not take into account the duty of Parliament to represent the people.

The word "represent" and its ilk occurs only four times in the text of the Judgement.

Only three are about Parliament representing the people and all three are merely descriptive and there is no substantive argument about the nature or duties of that representation. Only on the right of Parliament to "have a voice on how" the people's decision comes about.

Instead, the Justices were Parliament-centred, focusing on the rights of Parliament to be free of dictates from the Prime Minister. The meaningfulness, role and responsibility of Parliament - the nature of its very existence - was nowhere discussed. The entire judgement seems to have been circumscribed by a presupposition that Parliament is sovereign effectively regardless of the people (except in name).

Thus the Justices, while maintaining a comprehensive view of the activities within and relating to Parliament, did not maintain a comprehensive view of the role and being and functioning and responsibility of Parliament within the wider world and reality.

It might be argued that this is reasonable, given that the Justices make juridical considerations. I might agree in the case of the English High Courts and Appeal Courts, and their equivalents in Scotland.

However, should not the Supreme Court, which exists to take a wider view on judgements made by these courts, and set them in wider context of society and reality, take the entirety of reality into account as it relates to the point at issue? The point at issues is Parliament. The entirety of reality that relates to Parliament must include the very meaning, role and responsibility of Parliament, namely to represent the people? After all, that Members of Parliament are called "representatives of the people" should have some effective meaning and not be just a label. The Judgement however, concerns itself mainly with the processes of Parliament; mention of Parliament's nature, role and responsibility is meagre, and only in very general terms (such as the pieces quoted above).

One example of the wider reality that is relevant to the case is the fear of many is that Parliament will find a way to frustrate the decision of the people, rather than ensure that "that change comes about". I am not talking about whether it was this fear that was the motive of the Prime Minister in seeking a longer than usual prorogation since, as the Justices note, they are not concerned with his motive. I am talking about the prevalence within wider society, in which Parliament operates, of this fear. Given that the fear is part of that wider reality that is relevant to this case, should not the Supreme Court have at least discussed it in their judgements?

It is on the basis that the Justices did not take this part of wider reality, and others, into account, that I hold the Supreme Court Judgement UKSC 41 to be flawed as a Supreme Court judgement.



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Created: 26 September 2019. Last updated: