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UK Supreme Court emphasises the distinction between "unlawful" and "illegal".

Editorial Staff

Across the Common Law world, in recent years, there has been a failure in both legislation and more generally to distinguish between "unlawful" and "illegal." In deciding the case known as Miller II, the UK Supreme Court (the successor to the House of Lords' judicial function) has made it very clear: the two terms are different and are not interchangeable.

It would be easy to produce a long article about the history of how and why the two terms have become muddled and, often, used interchangeably, even in UK legislation.

But that would be unnecessary. All that is needed is to understand this:

1. In Miller II, the Justices (as the members of the Supreme Court are now known) found that the decision by Boris Johnson, the UK's Prime Minister to prorogue parliament for a period of five weeks was "unlawful." That means that they found it to be in breach of civil (i.e. non-criminal) law.

2. It was not alleged and there was no finding made or implied that he had acted "illegally" i.e. in breach of the criminal law.

The use of the word "unlawfully" in relation to the criminal law is therefore now discredited at the highest levels of the UK's legal system which is highly influential in all Common Law jurisdictions.

Those who draft legislation, those who practise law and those who comment or otherwise write about it should take note and avoid the misleading and confusing use of the wrong term.

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