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Thursday, August 15, 2019

Judicial Review in Britain

The latest chapter of the Brexit saga could lead end up strengthening Britain's Supreme Court. The new Prime Minister, Boris Johnson, says that the UK will leave the European Union on October 31st. Opponents of Brexit (or opponents of a Brexit without a withdrawal agreement) are threatening to bring a no-confidence motion in the Government and trigger a general election if the Prime Minister does not back down.

There is, though, a problem. Who is the Prime Minister during the ensuing election campaign? By tradition, the answer is the incumbent Prime Minister (unless he or she resigns). This means that Johnson could make Brexit happen even after no confidence is voted in his Government. It takes time to vote for no confidence and hold the election. Odds are that process will not be complete until after October 31st. Fait accompli.

Consider a comparable problem. Suppose President Trump is defeated for reelection. After his defeat but before the inauguration of his successor, he makes an important and irrevocable decision (for example, pardoning a zillion people). No one doubts that he would have the legal authority to do this. At some point there might be a crisis of legitimacy, though, for a defeated President taking an important decision.

What might happen in Britain? One extraordinary suggestion is that the Queen could dismiss Johnson as Prime Minister if his Government loses a confidence motion. This hasn't happened in forever, but the Crown retains some undefined powers that might include this. The more likely answer, though, is that someone will sue in the courts to have Johnson dismissed. The governing law is the Fixed Term Parliament Act, enacted in 2011. The Court would be asked to interpret this statute, which is silent about who serves as a caretaker Prime Minister after a no-confidence motion passes. Did the statute codify prior practice or change that practice?

This would not be judicial review in the American sense, as an Act of Parliament would be be construed rather than invalidated. The closest analogy would be the Court's ruling after the Brexit referendum, which said that the Government could not withdraw from the EU without some consent from Parliament (based on prior laws about Britain's relationship with the EU). Would the Court, though, actually says that Johnson could not be the Prime Minister and must leave office? That seems pretty far-out. Or would the mere prospect of that cause him to back down from Brexit until after a general election is held?  

Posted by Gerard Magliocca on August 15, 2019 at 09:00 AM | Permalink


By the way, the recent Supreme court decision of the UK, rejecting the suspension, can be reached here:


Posted by: El roam | Sep 25, 2019 9:54:46 AM

One may read the decision of the Scottish court given today, rejecting the motion for temporary injunction against the suspension of the Parliament, here:



Posted by: El roam | Aug 30, 2019 11:48:31 AM

Just the same ruling, from the site of the Israeli Supreme court, in that address:


While the search obtained from that page in the site( of the supreme court):


One needs to insert the case number ( 5167 ) and the year ( 00 , means: 2000 ) and cross to the " search" choice.

Posted by: El roam | Aug 16, 2019 7:42:18 AM

Just a very recommended ruling of the Israeli supreme court( translated to English) concerning that issue, here:


Posted by: El roam | Aug 15, 2019 2:30:42 PM

Important post indeed. Quite well known phenomenon. Here we have good illustration, why courts that are " always on top " are so crucial. Here also, we face the importance of " reasonableness ". For, even if formally, legally, one transitional government can do what ever it wishes, it is clear that it is not reasonable, to leave crazy " fait accompli " to the next one.

By the way, there is central known article in this regard, here:

C. Klein “The Powers of the Caretaker Government: Are They Really Unlimited?” ; J. Boston, S. Levine, E. McLeay, N.S. Roberts, H. Schmidt “Caretaker Government and the Evolution of Caretaker Conventions in New Zealand” )

I shall try to trace it online, and put it here.


Posted by: El roam | Aug 15, 2019 1:21:37 PM

If it did not say anything explicitly, it seems a safe assumption it continued previous practice. Especially since there need not be a readily available alternative prime minister. That Johnson loses a vote of confidence does not mean Corbyn has majority support.

Posted by: Jr | Aug 15, 2019 9:22:59 AM

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