Law According To A King

What is the rule of law? In my opinion, it does not exist. It simply cannot exist. There are too many contradictions, too many gaps, and too many criteria that even the most utopian society could not declare itself subject to the rule of law. But to disregard it, we must first understand what it claims to be. Nick Barber wrote that the rule of law “asks what it means to be governed by law, rather than men.” The first societies decided their own unofficial laws based on the ideas of their leaders, whereas the first civilisations decided their laws based on the ideas of their people, with the advent of agriculture 10,000 years ago. For a period of about 2 million years, hominid groups (primarily hunter-gatherers) appeared to have distributed justice based on the views of a council of elders, or often a simple individual Their laws were likely based on superstition, natural ideas of justice, and the hocus-pocus of the leaders themselves. When civilisations were developed, while brutalis...

Yesterday, the UK Supreme Court ruled on what is possibly the most important constitutional law case in a generation. In the case of R (Miller) v Prime Minister [2019] UKSC 41, the court handed down a judgment that we will be seeing the reverberations of for decades to come. It is an intensely political case, but the court were keen to set aside partisanship and rule simply on the law as they saw it. You may recall, a few weeks ago when Johnson announced the prorogation of Parliament, I wrote a post saying that it was a legal exercise of the prerogative powers, but evidently I was too hasty in making this judgment. Lady Hale, the President of the court, handed down a unanimous judgment that declared the prorogation was illegal, and thus, in effect, didn't happen at all. But let's look at how they came to this decision, and the key parts of their judgment... For some background: The UK decided in a referendum in 2016 to leave the EU. Whilst the result was not legally bind...

The last three years have been tense to say the least. The country is still divided on Brexit, with polls now showing a slight lean towards Remain. Since the 2016 referendum, the Liberal Democrats and Greens have campaigned furiously for a second referendum, whilst Labour and the Tories have largely rejected this. But what would a second referendum do? First of all, a second referendum is permitted by the law. Under the European Union Referendum Act 2015 the result of the Brexit vote was purely advisory. Neither Parliament nor the government is bound to deliver Brexit - it was merely an indication of public opinion. Most referendums are advisory, it is worth noting, with explicit language in legislation entitling the government to ignore the vote (though they never have). The judgment in R (Miller) v Brexit Secretary also stressed the advisory nature of the referendum, and underlined the importance of parliamentary sovereignty. One thing that is interesting is how both sides increa...

So Boris has asked the Queen to prorogue Parliament in September. Yes, he can do that. The prerogative powers (powers traditionally exercised by the Prime Minister in the name of the monarch) allow the PM to prorogue Parliament for whatever reason, and the Queen is bound by convention to consent. Some newspaper reports argue that he is doing this to force through a no-deal Brexit, but others say that he wants to hold a gun to Parliament's head to force them to approve a deal (likely a jazzed-up version of May's Chequers plan). Either way, the PM is at liberty to approve whatever prorogation of Parliament he so desires. The real question is the implications of this decision for the constitution - this is a legal blog, I don't deal with the politics. Why did the Queen consent? Well, the Queen is bound to do whatever she is advised to by her PM. Jennings set out three criteria for whether something is a constitutional convention, and we can see that the Queen is indeed...