How is the UK Supreme Court able to void the prorogation of the UK Parliament? In the UK, in practice, the government has power, but in theory the power lies in the hands of the Monarch, who acts on the advice of her Ministers. The Prime Minister advised the Queen to prorogue Parliament, and she duly did so. The Supreme Court has since found that that advice was unlawful. Therefore, they say, Parliament has not been prorogued. “This court has already concluded that the prime minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.” How, though, does this jibe with the legal fiction that Her Majesty has the power to prorogue Parliament whenever she so wishes, and that the Prime Minister merely advised her to do so, having no power to order her? If his advice was unlawful, surely her action in response to that advice was nonetheless lawful, as the fiction is that she acts in her own right, not merely as an automaton controlled by her Prime Minister.
The sovereign has the power to prorogue parliament at will, but actually exercises the power only on the advice of the PM (actually, according to paragraph three of the decision, it is exercised on the advice of the privy council). Other of the sovereign's powers are delegated to the courts. The court is not unfamiliar with exercising the sovereign's power to void her own acts, as acts of parliament and acts of government ministers are also nominally acts of the sovereign. While the courts cannot void acts of parliament, they can indeed void executive acts. Two relevant quotes follow. From paragraph 30, relating to the sovereign's lack of discretion in exercising the prerogative to prorogue parliament: It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament. From paragraph 32, on the justiciability of questions concerning prerogative powers: ... political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful. The court concluded at p 76 that “the King hath no prerogative, but that which the law of the land allows him”, indicating that the limits of prerogative powers were set by law and were determined by the courts.
Here's a 2002 law review article by MP Henderson that does a rundown of ineffective assistance of counsel standards and precedents in both the UK and US (and also details shortcomings and inconsistencies in both, which is the true focus of the article, though not particularly relevant to this Q&amp;A). The short of the matter is that bdb484's summary of the basic standard for the US is essentially the same in the UK: both focus on the practical impact of the counsel, rather than the actual efficacy and skill of the counsel. Meaning that if the court concludes that the result of the trial would have been the same with an effective counsel, then the results of that trial will stand. This is usually phrased in legal parlance as a &quot;miscarriage of justice&quot; issue. This results in a few seemingly glaring absurdities being ignored when the evidence against the defendant is seen as too strong to defend against, like sleeping through trials. The specific case detailing the standard test in the UK is R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368, and is essentially the same 2-part test as the Strickland test detailed in bdb484's answer: was the conduct outside the range of that of a reasonable counsel/advocate, and if so was it materially relevant enough to alter the verdict? The article I linked at the start states (with several citations, for the quotes in particular, here omitted): Courts in the United Kingdom are highly deferential to counsel's decisions. Also, there is a strong presumption that counsel's conduct will fall within the wide range of reasonable effective assistance. Additionally, courts in the United Kingdom will make allowances for the &quot;distorting effect of hindsight&quot;. As the result of such discretion, &quot;[c]onducting the trial without, or even contrary to, the instructions of the client, mere errors of judgment or even negligence, may not be sufficient to set up an inference of an unfair trial.&quot; And it's that last bit that's relevant to your question: simply defying the instructions of the client as concerns which evidence to present is not necessarily (and is unlikely to be) a basis for a successful claim of ineffective assistance of counsel. What constitutes a &quot;fair&quot; trial is a fairly broad umbrella; it doesn't require perfect counsel, nor that all conceivable avenues of defense be explored. Both UK and US lawyers are expected to both abide by the instructions of their client, while also being granted the leeway to present the case in the manner they deem best. This is spelled out quite clearly in the Scottish case Anderson v HM Advocate, where the High Court spelled out four points for what constitutes (in)effective assistance of counsel. To quote Henderson's summary again (which again has many citations here omitted) First, the accused has the right to a fair trial and to have his or her defense presented to the court. If counsel's conduct deprived the accused of those rights, a miscarriage of justice could result. Second, counsel must abide by the client's instructions, and not disregard those instructions. However, counsel must conduct the case as he or she thinks best. Third, counsel determines how the defense is presented, and the accused is bound by counsel's decision. Finally, counsel, not the accused, decides whether or not to attack the character of a Crown witness. Again, it's the third point that largely crushes your hypothetical's chances of success on grounds of ineffective assistance of counsel. For it is the counsel that ultimately decides how to present the defense, which includes what evidence and testimony to seek to include, and this is a binding decision upon the accused. The counsel in your hypothetical may have decided that the value of the evidence was significantly weaker than the client thought, and this generally falls under the umbrella of reasonable discretion for the advocate. Only if you can show the act to not present the evidence was outside the behaviors of a reasonable (generic) advocate, and also that it materially impacted the verdict, could you expect to prevail. As a bit of aside, there is something of an issue on whether or not there is a right to effective assistance of counsel in the UK. The right to a fair trial was really only expressly codified in The Human Rights Act of 1988, but that does not specify a right to effective counsel, only the right to a fair trial. A trial can be fair with no counsel at all. By contrast, in the US the 6th ammendment has been held to grant a right to both a fair trial and effective counsel in criminal matters, and the government must foot the bill to provide the accused with an attorney if requested/needed (the accused can waive this right, and there is a certain reasonableness where courts will eventually tell a defendant &quot;oh well, figure it out yourself&quot; if they keep rejecting their court appointed attorneys and demanding a new one). In the UK access to legal counsel is largely considered only available to those who can afford to pay for it, with the government fronting the bill only in exceptional cases (e.g. the courts deems it desirable to do so in the interests of justice). This right to a fair trial rather than a right to legal counsel seems to be why the UK currently places the emphasis on the practical impacts of the alleged ineffectiveness, rather than the alleged ineffectiveness itself. My understanding of US jurisprudence suggests it's rather more practical in justification: the courts don't want to do do-overs over procedural issues when the result is a fait accompli, as it consumes lots of time and resources and risks the general ravages of time on evidence, will, and memory.
Historically, this was true in the Icelandic Commonwealth in the Middle Ages, and in some democratic Greek city-states in the classical era. Similarly, in non-democratic feudal regimes, the lord or monarch was both the law giver and sitting in court was also the arbiter of all disputes arising under the lord's own laws. In places like Saudi Arabia where the monarchy's power is more than symbolic, the system still works this way to a significant extent. The practical reality in most one party Communist states is similar. In the United Kingdom, historically, the Appellate committee of the House of Lords (staffed by a subset of aristocrats usually appointed for life by the Prime Minister to the post) was the highest court of appeal of other courts in the British Commonwealth (with the Judicial committee of the Privy Council handling final appeals from outside Britain), and it was also a court of original jurisdiction for certain criminal cases against other aristocrats to satisfy the Magna Carta's notion that one is entitled to a jury of one's peers. Top level general purpose legislatures rarely serve as courts at the highest level, except in very isolated political matters. A good example of narrow quasi-judicial legislative power is the power of the Congress in the U.S., to be the ultimate judge for Congressional election disputes and of some Presidential election disputes. Congress also has quasi-judicial jurisdiction over impeachments of government employees whether or not they are elected, and over expulsions for cause of its own members and over other ethical sanctions of its own members. Many other legislatures have some sort of quansi-judicial impeachment and/or explusion power exercised as a whole by by some committee within it. It is common in the United States for administrative agencies, within their narrow area of competence to exercise both quasi-legislative power to enact regulations with a broad mandate in a subject area, and also to have quasi-judicial power in that same subject area. The Securities and Exchange Commission, the National Labor Relations Board, the Internal Revenue Service, the Environmental Protection Agency, and the Merit System Protection Board, for example, all operate in this fashion to some extent. Likewise, it is very common at the local government level for a city council and its planning board to carry out both legislative roles and quasi-judicial role when disputes come up regarding its land use regulations. Similarly, school boards routinely both establish employment regulations and other school rules, and serve in a quasi-judicial role with respect employee discipline or termination, and with respect to student discipline. This dual role is also common for the boards of other public institutions like hospitals and state colleges, and for private non-profit organizations. A recent example in that kind of situation is Colorado's State School Board which both exercises legislative power over when charter schools (i.e. public schools not under the direct supervision of any elected local school board) may be formed, and has the ultimate and final judicial review role over decisions by local school boards to grant or deny school charters.
I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality.
The Commander-in-chief powers are quite broad. The War Powers Resolution limits his ability to engage unilaterally in military action, by requiring him to report to Congress within 48 hours, and if Congress disapproves, troops must be removed after 60 days. However, this law pertains to armed forces, and would not apply to remotely-launched missiles. Additionally, it is unknown if the resolution is unconstitutional (presidents say it is). No law at all requires POTUS to obtain permission from someone else, in order to engage in a military action. Article 90 of the UCMJ states that it is a punishable offense to "willfully disobeys a lawful command of his superior commissioned officer". The manual also states that An order requir­ing the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. Murder of a civilian is an example. It also says The lawful­ness of an order is a question of law to be deter­mined by the military judge. "Shocking the conscience" is not a grounds allowing disobedience. One can only conjecture how a military judge would evaluate the lawfulness of a presidential order, when there is not a shred of legal evidence that such an order is in fact illegal: I conjecture that the order would be found to be lawful.
The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress.
This is an appeal from the decision in A Local Authority v JB [2020] EWCA Civ 735. In the part of the hearing to which you refer, Lord Stephens is asking the appellant’s counsel about the following principle, quoted at [31] of the judgment under appeal: When considering capacity to marry, the question is whether X has capacity to marry, not whether she has capacity to marry Y rather than Z. The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse: Re E (and Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam). In Re E, Munby J said at [91]: The point is suggested by Miss Waddicor's very pertinent rhetorical question: Can it seriously be suggested that the court has the right to vet E's suitors, to decide that X is suitable but that Y is unsuitable, to select who E is to marry? The answer to that question, in my judgment, is that the court quite clearly has no such role. The ‘father of the bride test’ is the proposition rejected here: that the Court of Protection could play the traditional role of the father of the bride, by granting permission to marry a particular person, rather than determining the person’s capacity to marry in a more general sense.
They still have the power They generally don’t because: Most activities of a criminal nature no matter how novel can be shoehorned as a new instance of an existing crime. Parliament is much more pro-active in its legislative agenda. The judicial system moves much more slowly.