Litigation is often predicated on certain assumptions. These may be the result of argumentation of the parties, the reasoning of the courts or an admixture of the two. The assumptions can take on an axiomatic character, and become ‘unchallengeable’. They may be regarded as expressive of uncontroversial facts, or perceived as inherent in the nature of adjudication. Such matters may be unpacked after the event, in academic discourse or subsequent litigation. Reflection after the event may be rewarding, but it does not change the prior decision. The importance of the present case therefore warrants some brief thoughts about three assumptions that are related but distinct, which have characterized the litigation thus far.
Assumption 1: Prorogation entails high policy
It is unsurprising that characterization of the case as involving high policy has featured prominently in the present litigation. It is a natural argument for government to make, the consequential contention being…
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