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.
