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So the UK supreme court has just ruled the prorogation of parliament to be unlawful. This court has only existed since 2009, taking on the role as the court of final appeal from the House of Lords.

Given that the Lords was prorogued during this case, what would have happened if this had happened before the founding of the Supreme Court in 2009? Ie, is the result we're seeing today partially thanks to the Constitutional Reform Act 2005?

I believe that the house, or specifically just the Law Lords, could have been recalled by the Lord Chancellor (worth remembering this is a Tory MP), or by a senior Law Lord. But I'm not sure. Is this the case? Would a recall have been at all likely?

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There was legislation that provided for the House of Lords to hear cases during prorogation.

section 8 Appellate Jurisdiction Act 1876 http://www.legislation.gov.uk/ukpga/Vict/39-40/59/enacted

Hearing and determination of appeals during prorogation of Parliament

For preventing delay in the administration of justice, the House of Lords may sit and act for the purpose of hearing and determining appeals, and also for the purpose of Lords of Appeal in Ordinary taking their seats and the oaths, during any prorogation of Parliament, at such time and in such manner as may be appointed by order of the House of Lords made during the preceding session of Parliament; and all orders and proceedings of the said House in relation to appeals and matters connected therewith during such prorogation, shall be as valid as if Parliament had been then sitting, but no business other than the hearing and determination of appeals and the matters connected therewith, and Lords of Appeal in Ordinary taking their seats and the oaths as aforesaid, shall be transacted by such House during such prorogation. Any order of the House of Lords may for the purposes of this Act be made at any time after the passing of this Act.

credit to Joshua Rozenberg on Twitter https://twitter.com/JoshuaRozenberg/status/1172489016857546752

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    In many ways the 1876 Act was a much more significant one than the 2005 one. It effectively established a Supreme Court made up of professional judges rather than legislators. It's true that it was nominally a committee of the House of Lords and members retained voting rights there, and the separation of powers was made more explicit by the 2005 Act. It is a mistake to think that before that it behaved like e.g. the US Senate does when conducting a trial after impeachment. – richardb Sep 24 at 18:16

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