The British Case of Prorogation: The Common Law Strikes Back

The Supreme Court’s Miller II decision, quashing Boris Johnson’s prorogation of Parliament, was a muscular judicial response to a piece of ‘constitutional hardball’ from the Executive, an example of what Alison Young terms ‘constitutional counter-balancing’: action by one arm of government to prevent another exceeding constitutional limits on its powers. The prorogation in turn was a failed attempt to counter what the Executive saw as Parliament’s ‘unconstitutional’ seizure of the parliamentary timetable, which enabled it to legislatively direct the Government’s Brexit negotiations with the EU, forcing it to seek extensions to the Article 50 deadline. Brexit revealed the ancient royal bones of the constitution – the Crown’s reserve prerogative powers – poking through its democratic veneer. Miller II was a vigorous reassertion of the political-democratic constitution as against ‘New Crown Fundamentalism’ – the aggressive use of Crown power to control Brexit and side-line Parliament.