But why are we even here? Boiling the whole thing down, the political fundamentals against which the Miller-Cherry case fell to be decided are as follows: (1) a majority of those voting in the EU referendum voted to leave; (2) a parliament was subsequently elected in which 85 per cent of MPs won their seats on the promise to respect the referendum result; and (3) in the event most of those MPs reneged on that promise and obstructed the country’s departure from the EU both with a deal (31 March) and now without one (31 October).
That departure was set in law by MPs themselves.
Remainer MPs in Parliament then set themseleves on a collision course by seeking to frustrate the will of the Parliament itself and the will of the people as expressed in two votes, the Referendum and the General Election. So, the government decided it wanted to implement the will of the people and one way of doing that would be to prorogue on the basis that it would allow what people had voted for twice and parliament itself had brought into law would actually happen. Enter the Remain establishment and the lawyers.
As Andrew Newcombe QC argues, the power-grab of the Court concentrates on the advice allegedly given to Her Majesty. This is a neat tactic to get around Article 9 of the Bill of Rights 1688 (and the equivalent provision in the Claim of Right 1689). As Newcombe points out: “That Article precludes the questioning of proceedings in Parliament, and the court held, wrongly in my view, that the act of prorogation is not such a proceeding.”
This, he argues, ignores the concept of the monarch in Parliament. “In proroguing Parliament, the Queen is acting as part of that Parliament and the prorogation is unavoidably a proceeding therein. If this be right, the proceedings before the Supreme Court were themselves unlawful.”
Which rather puts a different slant on things if the court itself was breaking the law.
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