The British Case of Prorogation: Process, not Substance, Exception not Rule

Schedule

Wed Sep 28 2022 at 05:30 pm to 07:30 pm

Location

Lord Elgin Hotel | Ottawa, ON

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A talk by by Gavin Phillipson, Professor of Law, University of Bristol Law School
About this Event

Le 28 septembre à 17h30 à l'hôtel Lord Elgin à Ottawa, le Centre de droit public de l'Université d'Ottawa et la William and Jeanie Barton Chair de la Norman Paterson School of International Affairs accueilleront le professeur de droit Gavin Phillipson de la Faculté de droit de l'Université de Bristol.

L'événement se déroulera en anglais. Ci-bas, le résumé du texte que présentera le professeur Phillipson.

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On September 28, at 5:30 PM at the Lord Elgin Hotel in Ottawa, the Public Law Centre at the University of Ottawa and the William and Jeanie Barton Chair at the Norman Paterson School of International Affairs are hosting a talk by Professor of Law Gavin Phillipson from the University of Bristol School of Law.

The event will be in English. Below, the abstract of the paper that Professor Phillipson will present.

"This paper takes as its starting point the Supreme Court's decision in Miller II but uses Stephen Gardbaum’s much debated proposal of a revived political process theory (ICON, 2020) to broaden consideration of the case from the heavily doctrinal debate we have seen thus far. It argues that the decision, while bold and innovative, was sharply limited to a defence of constitutional process, as was Miller I, classic instances of the kind of procedural constitutional role suggested for the judiciary in Gardbaum's bold reworking of the basic insights in Ely’s work. Both Miller decisions saw the courts police the democratic workings of the constitution, but neither concerned substantive policy issues.

It argues that more important than the doctrinal details is analysis of the overall constitutional imperative that drove the Supreme Court: the need to provide a check upon the Executive's aggressive use of prerogative power that characterises what this paper terms the 'Whitehall Plus' model - one repeatedly seen in action throughout the Brexit crisis. This model took the ordinary descriptive ‘Whitehall’ model, which locates the reality of power in the Executive, and added to it the normative claim to be implementing a direct democratic mandate, expressed outside Parliament in the 2016 referendum. This led to, and was used to justify, the second additional element - the aggressive use of the royal prerogative to bypass Parliament (Miller I) or wholly suspend its sitting (Miller II). In both cases, the underlying normative constitutional claim was the right to put Parliament to one side in order to implement the will of the people. Thus the judgment in Miller II is best seen as an improvised judicial response to 'Whitehall Plus', protecting Parliament's role in the constitution, just as Miller I asserted that it was Parliament's role, and not that of the Executive acting alone, to bring about major constitutional change. Both decisions, while contentious, sought to ground themselves in protection of accepted, or extended accounts of parliamentary sovereignty and thus representative democracy.

The final part of the paper argues that the huge controversies around these high- profile decisions may distract us from recognising how rudimentary and unsure judicial review remains as a check upon Executive prerogative power, when protection of constitutional process is not in issue. If Miller II was a (rare) example of a court putting real limits around a prerogative power, far more typical are judgments that either do nothing to define the scope of a given prerogative (Northumbria) or actually expand understandings of its scope (Bancoult, and most recently, the 2021 Third Direction decision of the Court of Appeal on the powers of the Security Service. It therefore goes on to propose a recategorization of the whole corpus of UK case law on judicial review of the royal prerogative. It argues that the cases can be divided into those that have sought to check a substantive government policy (overwhelmingly unsuccessful) and those process-based cases that have sought to protect and preserve the role of Parliament in the constitution (overwhelmingly successful)."


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Where is it happening?

Lord Elgin Hotel, 100 Elgin Street, Ottawa, Canada

Event Location & Nearby Stays:

Tickets

CAD 0.00

uOttawa Public Law Centre

Host or Publisher uOttawa Public Law Centre

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