Public Law - Cluster of Two Cases

Running head: PUBLIC LAW
PUBLIC LAW
Name of the Student
Name of the University
Author Note

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PUBLIC LAW
Issues:
 Whether the recommendation given to Your Majesty by the Prime Minister
concerning prorogation is justiciable?
 What are the limitations of the power to give guidance to the Queen about the
prorogation of the Parliament?
 Whether the prorogation advice had frustrated or prevented the usual parliamentary
function?
 Whether there should exist a codified structure on constitutional authority for the
proper governance of law in the UK or the uncodified structure is satisfactory?
Rule:
The rule of justiciability or court’s power of adjudicating an issue was the main
question of conflict in this case. Further, the fundamental features of the uncodified British
Constitution and its impact on the theory of separation of power has been further discussed in
this case.
Analysis:
The main issue involved in this case was the cluster of two cases, one of which was
bought in the High Court of England and Wales1 , and another was bought in the House of the
Court of Session in Scotland. The case by the Scottish case was bought by a group of 75
parliament members reflecting their concern about a parliamentary prorogation to avoid
further debate that might occur regarding the 31st October’s exit day2. On a similar issue, a
memorandum has been sent to the Prime Minister on 15th of August in reply to his secretary’s
invitation about the beginning of prorogation from 9th to 12th of September. Further, the Prime
1 Miller v The Prime Minister Case history [2019] EWHC 2381 (QB)
2 Cherry v Advocate General for Scotland ([2019] UKSC 41

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PUBLIC LAW
Minister formally provided advice to the Queen on 27th and 28th August 2019, to prologue the
Parliament between the mentioned dates. Regarding this issue, the plaintiff bought an action
challenging the legality of the recommendation offered by the Prime Minister regarding the
prorogation. The High Court of England and Wales stated that the allegation bought by
Miller was unjust. Nonetheless, the House of the Court of Session in Scotland stated that the
prorogation was unlawful and made with the purpose of obstructing the peaceful
parliamentary function. The plaintiff then bought a plea against the English court’s verdict
and the Advocate General appealed in contradiction of the Scottish Court’s judgment before
the Supreme Court.
The first issue addressed by the court, in this case, concerned whether the
recommendation offered to Queen Elizabeth II from the Prime Minister Boris
Johnson, regarding prorogation of Parliamentary session is lawful or not. The court believed
that it has dominion to choose regarding the parameters of prerogative power. In the case of
Marbury v. Madison3, the court upheld the judicial power of the American Courts to review
and strike down laws and improper governmental actions. In the present case, the courts have
applied a supervisory authority over the legality of the conduct of the Government for
centuries4. The fairness regarding the suggestion of the Prime Minister to the Queen was
therefore concluded as justiciable.
In the English case of Proclamations5, it was held that the king has no dominant right
unless the law of the land permits him any. Therefore, the court, in the present case, found
that it has supervisory jurisdiction upon the activities of the government as decided in the
Case of Proclamations. Therefore, the Government has a limited prerogative power6. The
court further held that the practice of prerogative power is like the practice of the royal
3 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
4 Case of Proclamations [1610] EWHC KB J22
5 Case of Proclamations [1610] EWHC KB J22
6 Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508;