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01 September 2019 / Michael Zander KC
Categories: Features , Brexit , Constitutional law
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Is proroguing of Parliament foul play? (Pt 2)

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Could a legal challenge to the proroguing of Parliament succeed? Michael Zander considers the arguments

In June, Lord Pannick QC wrote a column under the heading: ‘If Johnson tries to use Queen [sic] as Brexit pawn he will be thwarted’ (The Times, June 27 2019). He quickly dismissed any suggestion that a court would annul the Queen’s decision to prorogue parliament. (‘The courts would not entertain a challenge to a personal decision by the Queen, because she, the head of the UK’s constitutional structure, is immune from legal process.’)  A successful challenge, he suggested, however, could be brought on the legality of the advice on prorogation given to the Queen by the prime minister.

There were three matters that could lead a court to hold that a fundamental legal principle justifying judicial review had been breached.

  • First, ‘the prime minister would be seeking to prorogue parliament for the purpose of avoiding parliamentary sovereignty, on an issue of significant constitutional importance’. The trouble with that point
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