I think the current crisis is a realistic example. Also, the original blogpost emphasises two key qualifications: 'probable' effect and 'effective' irreversibility. Judges make this kind of speculation all the time in indirect discrimination law.
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Conversation
I'm asking for examples where a court could be certain there will be no irreversible effects from an "unusual" prorogation. A week is a long time in politics! Isn't speculating on probable effects from loss of legislation and scrutiny very different from discrimination cases?
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Or at least, where a court could be certain there will be no *serious* irreversible effects. If individuals are affected by legislation not passed at the expected time, how would a court assess seriousness of effect? We can't even assume the legislation would have been passed.
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Parliamentary scrutiny includes written questions as well as committees. A government might escape both existing and potential future questions by proroguing. It may not be clear how a court could decide which would be time-sensitive, time-critical, significant or important.
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A fundamental problem? How could courts have the power to assess real-world effects of prorogation (assessing significance, importance, time-criticality, and irreversibility) without risk of involving personal values or political judgement?
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Matt Berkley
@mattberkley
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Replying to @mattberkley @tarunkhaitan and 11 others
...it's perhaps not clear that a real-world-effects test is practical, compared to a "constitutional principles" test aiming to ensure Parliament's ability to pass the legislation it thinks fit, and scrutinise acts and statements which may occur after the decision to prorogue.
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I guess courts have to do that to some extent all the time? When deciding whether to grant an injunction, for example
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In a prorogation case, a court may not need to look at specific political effects if it emphasises a perhaps uncontroversial principle: Parliament should be free, unless there is good reason, to scrutinise and act on both what is, and whatever may arise.
Quote Tweet
Matt Berkley
@mattberkley
·
Replying to @mattberkley @tarunkhaitan and 11 others
...it's perhaps not clear that a real-world-effects test is practical, compared to a "constitutional principles" test aiming to ensure Parliament's ability to pass the legislation it thinks fit, and scrutinise acts and statements which may occur after the decision to prorogue.
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Is the Supreme Court's effects test in paragraphs 50 and 51 adequate as a guide to whether future prorogations are lawful? Hopefully it won't matter, if governments stick to prorogations that are clearly justified. A thread:
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Matt Berkley
@mattberkley
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Replying to @AileenMcHarg @StevePeers and 2 others
It is a fact - and foreseeable - that Parl is prevented from scrutinising whatever may arise during the period. Perhaps the judgement's not requiring "reasonableness" to include the unpredictability of politics is a significant defect. twitter.com/mattberkley/st @adamwagner1
10:01 AM · Sep 25, 2019Twitter Web App
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