“No justification with taking action of such an extreme effect has been put before the Court,’ claimed Lady Hale, President of the UK Supreme Court, in delivering the Court’s recent historic judgement. This was in response to the legality of Prime Minister, Boris Johnson’s advice to the Queen to prorogue Westminster on the 28th of August, just over two months before the UK are set to depart from the EU. 

Prorogation of Parliament is not unusual, in fact it happens quite regularly, particularly before the dissolution of Parliament, the last being in 2017. However, it was the length and timeliness of this suspension which rose to controversy. Prorogation was to be in effect from the 10th of September until the 14th of October, the longest of its type in modern political history. This coupled with a fast approaching Brexit deadline outraged Johnson’s political opposition. Johnson argued that the suspension was granting Government time to refocus on domestic policy before the Queen’s speech but eyebrows were raised as his policies aren’t likely to be even settled due to lack of majority. 

The prevailing issue boiled down to the separation of powers, a difficult subject matter in the UK which has no codified Constitution. Does the Executive have the right to suspend the Legislature during such critical stages of Brexit negotiation? Businesswoman, Mrs. Gina Miller didn’t think so, challenging the lawfulness of the proceedings through the High Court of England and Wales. Her claim was soon dismissed, holding that the issue was not justiciable in a court of law. On the exact same day, the Inner House of the Court of Session in Edenborough held the opposite, claiming that Johnson’s motif was to ‘stymie parliamentary scrutiny of the Executive.’

The 17th of September then saw the beginning of a three-day hearing, considering the appeals of the two contrasting judgements in a case known as Miller II. The existence and extent of prorogative powers along with limits to challenge it were heavily scrutinised. The case was heard by eleven justices, the maximum number permitted to judge a UK SC case, reflecting its significance. All eleven justices unanimously agreed that proceedings were both justiciable and void. Lady Hale held that ‘if the prorogation has the effect or frustrating or preventing, without reasonable justification the ability of Parliament to carry out its constitutional functions’ it shall be deemed unlawful. Parliament’s role as Legislature and supervisory body to the Executive were drastically hindered and so fell within the scope of Hale’s ruling. Under John Bercow’s wishes. Westminster returned to session at 11.30AM on Wednesday the 25th of September to continue negotiations.     


Rob Ó Beacháin – Law Editor