The British Case of Prorogation as an instance of constitutional fracture

This paper argues that the Supreme Court’s Miller II decision, quashing Boris Johnson’s prorogation of Parliament, is best seen as the dramatic culmination of a constitutional struggle triggered by the powerful but incomplete mandate of the Brexit referendum. This struggle between Executive and Legislature that started with the Miller I Article 50 case was overtly for control over Brexit and the parliamentary proceedings by which its terms and timing were determined; but also between two competing models – often dubbed ‘Westminster’ and ‘Whitehall’ – of the UK constitution. Miller II was the capstone of a series of aggressive moves, made by both sides, that instantiated in concrete ways the conflict between these two models that, in ordinary times, are often opposed only in abstract. Propelled by the extraordinary stakes and circumstances of Brexit, the repeated collisions of these competing visions saw the constitutional fabric fracturing to expose its fragile normative architecture.