A Critical Analysis of the Case of Prorogations

Paul Daly February 17, 2021

I have posted “A Critical Analysis of the Case of Prorogations” to SSRN. Here is the abstract:

R (Miller) v Prime Minister is a landmark case about the scope of prerogative power and judicial review in common law systems.

In this article, I critically analyze the seminal decision of the UK Supreme Court in what will no doubt come to be known as the Case of Prorogations, focusing on its likely importance, its reasoning, its doctrinal and historical coherence.

In Part II, “Prorogation”, I set the scene for the Supreme Court’s decision, describing the run-up to Prime Minister Boris Johnson’s ill-fated prorogation of Parliament as a ‘Hard Brexit’ beckoned.

Part III, “The UKSC Decision” is devoted to detailing the Supreme Court’s analysis, setting out in a few dozen crisp and clear paragraphs penned by Lady Hale and Lord Reed.

In Part IV, “The Case of Prorogations”, I move to consider the decision in a broader historical setting, noting that it is broadly consonant with trends in relation to the prerogative and judicial review.

Part V — “Critical Analysis” — contains an assessment of the Supreme Court’s reasoning: tackling justiciability, doctrinal coherence, historical coherence, and remedy; in turn, I raise a number of concerns about the decision which, in a nutshell, turned doctrine and history on their heads. Although the Case of Prorogations will take its place in the pantheon of great common law decisions, Lady Hale and Lord Reed’s analysis is problematic.

Lastly, in Part VI, I conclude by offering some observations on “democratic decay”, further the mission of this volume, arguing that the UK Supreme Court’s decision was unnecessary and liable to provoke a political backlash.

This piece is forthcoming in the Canadian Journal of Comparative and Contemporary Law. Before submitting it, I had not had the benefit of reading Professor Mark Elliott’s analysis, which puts the opposing, pro-Miller view with great force.

UPDATE: My former student Steven Spadijer (a doctoral candidate at Oxford) has posted a lengthy critical analysis of Miller 2 to SSRN: download it here.

This content has been updated on February 25, 2021 at 18:35.