What legal measures can be used to prevent the Prime Minister proroguing Parliament?

Both Gina Miller and John Major have threatened to use legal means to block proroguing, but have not elaborated on the arguments or mechanisms they plan to use.

Note: Not a duplicate of this question, which is asking if the PM has the power to do it.


2 Answers 2


A definitive answer to this question can only be given if and when a case is put before a court, and the court has given a judgement.

Regarding the nature of any legal action, according to the BBC:

Sir John Major has said he will seek a judicial review should Boris Johnson become Tory leader and suspend Parliament in order to deliver a no-deal Brexit.

It adds:

Only the Queen can decide to suspend Parliament, but it's highly unlikely there would be a legal challenge against any decision Her Majesty made because [...] the head of the UK's constitutional structure is "immune" from the process.

[...] any judicial review would probably revolve around the legality of the advice to suspend Parliament offered to the Queen by Mr Johnson.

And that could turn on whether such advice is "irrational".


In the absence of legal precedent in the UK, we can look to other countries with similar systems. In 2009, the Federal Court of Canada heard Conacher v. Canada, which was brought by a citizen-advocacy group after Prime Minister Harper asked the Governor General to dissolve Parliament in advance of the date specified by the Canada Elections Act. The court found that this question was basically non-justiciable; while Crown prerogatives can be reviewed, they must violate an individual's rights to be justiciable:

The case of Black v. Chrétien, above, shows that the Federal Court has jurisdiction over direct exercises of Crown prerogative because they emanate from a federal source. Although some prerogatives are reviewable, the Court must still determine whether a particular prerogative is justiciable. The hallmark of justiciability is whether the exercise of prerogative affects the rights or legitimate expectations of an individual. In the present case, no legal rights or legitimate expectations were affected, other than a claim having been made under the Charter, thus, the Prime Minister’s advice is not reviewable.

(Styling was present in the original, though the bold text was underlined there.)

Prorogation and dissolution of parliament are both Crown prerogatives under the Canadian (and UK) systems, and it is difficult to see how a prorogation would violate the legal rights of an individual any more than an early dissolution would.

The important difference between the UK and Canada, however, is that Canada has an explicit written Constitution and a Charter of Rights and Freedoms, while the UK constitution is largely (entirely?) unwritten. The legal reasoning applied by the Federal Court rested heavily on the Canadian Constitution Acts.

It is important to examine the constitutional context because Canada has a system of constitutional supremacy that lays out the boundaries of Parliament’s power. In this case, the constitutional context is that the Governor General has discretion to dissolve Parliament pursuant to Crown prerogative and Section 50 of the Constitution Act, 1867. Any tampering with this discretion may not be done via an ordinary statute, but requires a constitutional amendment under Section 41 of the Constitution Act, 1982, which requires unanimous consent of all provincial governments as well as the federal government before a change can be made to the “office of the Governor General”.

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