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ARTICLE · 08 OCTOBER 2019

Carts And Horses: The Key Differences Between The Decisions On Prorogation

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Over the course of six days in this past two weeks, the Divisional Court of England and Wales and the Inner House of the Court of Session

United KingdomGovernment, Public Sector

Over the course of six days in this past two weeks, the Divisional Court of England and Wales and the Inner House of the Court of Session of Scotland considered two very similar cases.

The cases concerned the same set of facts, in relation to the same exercise of prerogative power, with similar arguments from both sides and the same authorities cited.

Ultimately, however, the decisions differed over the simple but crucial question of whether the decision to advise Her Majesty the Queen to prorogue Parliament was one which the courts could review or not.

Indeed this issue as to the 'justiciability' of the claim was as far as the Divisional Court went, and it did not provide an opinion on whether the decision itself was lawful - contrary to the headlines and press coverage that subsequently reported it.

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