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Rule of Recognition

Peter Keeble

I'm a bit puzzled about the grounds on which the Scottish court ruled Johnson's proroguing of Parliament unlawful - it does smack a bit of judges interferring in politics, though if there were lying to the monarch then perhaps that is a different matter.


However, the philosopher of law, H L A Hart has a wonderful clarifying concept that perhaps helps in this situation. The basic idea is that there are almost always going to be situations in which a judge will have to use their discretion in applying the law to a particular situation. As a positivist Hart argued that there is no defineable right or wrong in such situations and we must rely on the judgement (wheresoever it comes from) of that institution that we all recognise as having the final say. That would seem to be the Supreme Court in this case. So I suppose we must let the legal process take its course and in this case, since parliament has already managed to exert its sovereignty over an out of control executive I think it will be an acceptable conclusion, whichever way it goes. But still the question is there, should the proroguing be deemed unlawful is this a case where the judges have gone too far. If so, that would seem to be a question that can be dealt with in the future through legislation making it clear that there are limitations on the executive's powers to prorogue.

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