brexit divorce supreme court

BREXIT – The Supreme Court and the Divorce Bill & Domestic Abuse Bill 

The BBC reported last week that the Divorce, Dissolution and Separation bill and Domestic Abuse Bill have been dropped because of the Prime Ministers prorogation of the Parliament.

Former Justice Secretary David Gauke said it would end the “blame game” and encourage amicable separations that were less disruptive to families. On twitter he announced that he is “ddisappointed that the suspension of Parliament means that the Divorce, Dissolution and Separation Bill has been dropped. Divorce reform is long overdue, and the Bill had overwhelming support amongst the public and in Parliament. I hope Parliament can return to this asap.”

The same happened to the Domestic Abuse Bill, which would have introduced a definition of domestic abuse to help victims and the public understand what type of behaviour it constitutes, helping more come forward. Before it was dropped, multiple charities wrote to the PM urging him to keep the Domestic Abuse Bill as part of his agenda.

Campaigns and public affairs manager Lucy Hadley said: “Survivors and domestic abuse experts have put years of work into creating this bill – it must be re-introduced in the next Queen’s Speech.”

Sir James Munby, the former president of the Family Division, expressed his “dismay and frustration”, saying: “This is a vitally important bill tackling what everyone agrees is a very great social evil.” He called for the bill to be reintroduced in Parliament as soon as the next session starts.

A government spokesperson said it is “absolutely committed to legislating to support victims of domestic abuse”.

Today is the first day of three days when the 11 The Supreme Court Judges are meeting to consider whether Boris Johnson acted lawfully in suspending Parliament.

The 11 judges are hearing two appeals relating to the PM’s decision to prorogue Parliament to mid-October and here are the conclusions from the position statement.

Prime Minister’s and Advocate General for Scotland’s conclusion

  1. The Prime Minister and Advocate General for Scotland invited the Supreme Court to dismiss the appeal and to affirm the order of the High Court (Divisional Court) and to allow the Scottish appeal and to recall the interlocutor of the Inner House and restore the interlocutor of the Lord Ordinary.
  2. The reasons they are giving on page 45 and 46 are:
  • “The issues in the appeals are non-justiciable. There are no judicial and manageable standards against which the Prime Minister’s advice to Her Majesty to prorogue Parliament can be assessed. The exercise of this prerogative power is intrinsically one of high policy and politics, not law, which for reasons of constitutional propriety is assigned to politicians in the executive and not the courts. The appeals would also involve the courts identifying and enforcing a new constitutional convention as to the length of prorogation, which the courts have no jurisdiction to do”.
  • “The advice was compatible with the principle of Parliamentary sovereignty, which requires compliance with law duly enacted by the Queen in Parliament. In circumstances where Parliament has legislated to sit in particular cases, but not generally and otherwise preserved the prorogation prerogative, it would be positively inconsistent with Parliamentary sovereignty and the separation of powers for the courts to devise further constraints on the sittings of Parliament”.
  • “The appeals are academic. Under the terms of s.3 of NIEFA and the Order in Council, Parliament was able to sit in the first two weeks of September 2019 and will be able to do so on and after 14 October 2019. Indeed, Parliament used that time to pass the new Act, which further expresses its will about the terms and process of the UK’s exit from the EU”.
  • “The advice was in any event lawful and in particular not vitiated by an impermissible purpose or regard to irrelevant considerations”.
  • “The reading of a commission for the prorogation of Parliament to both Houses by Lords Commissioner is a proceeding in Parliament for the purposes of article IX of the Bill of Rights which the courts have no jurisdiction to impeach or question”

Appellant Gina Millar’s conclusion in her written submission

  1. Mrs Millar invites the Court to allow the appeal for the following reasons:
  • “The Division Court erred in law in concluding that the legal principle of Parliamentary sovereignty is not engaged by the decision of the Prime Minister to advise her Majesty to prorogue Parliament for a period of 5 weeks”.
  • “The division Court erred in law by failing to find that the advice of the Prime Minister was an unlawful abuse of power in the circumstances of this case”.
  • “The Divisional Court erred in law in concluding at [51] of its judgment that the decision to advise Her Majesty to prorogue for a period of 5 weeks was “inherently political in nature and there are no legal standards against which to judge [its] legitimacy”.

Joanna Cherry QC MP’s case in her position statement [92 pages]

It is Joanna Cherry QC MP’s case

  • that “the First Division reached the correct decision in law and correctly drew adverse inferences of fact from the Executive’s conduct of and in this litigation”.
  • “Since, in accord with Scottish constitutional law and tradition, which may be said now to have been received into and become the common constitutional tradition of the Union, the Executive use in the circumstances of this case of its power to prorogue Parliament at this time, for this period and in these circumstances would be wholly unlawful and unconstitutional as found by the judges of the Inner House, the Appeal must be refused, and the decision of the First Division of the Court of Session upheld”.
  • This will “allow Parliament, if so advised, to decide when and whether to reconvene to sit and hold the Government to account in this period of deep political controversy and
  • profound constitutional change which would result should be the United Kingdom leave the European Union”.

She also requests that the Supreme Court “should order to release the unredacted documents to the her”.

It is speculated by CNN that this “high stake Court case could force the Queen to pick a side” and the Washington Post reminds us that the “British democracy is as old as it is iconic”.

Other international news like the Frankfurter Allgemeine contemplated that there might be even more court cases in the near future, when the Prime Minister might not comply with the latest law before the Parliament’s suspension or not writes the delay letter.

Does this mean that Court system is also full of Brexit cases and this is only the beginning?

You can find the whole position statements on


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