Gina Miller 2 by Keith Edkins (CC-BY-SA-4.0)

Gina Miller is bringing another court case against the government, this time to try and stop parliament being prorogued as Brexit fast approaches.


Now, unless you've been living on a desert island somewhere, you'll know that Boris Johnson has obtained a five week prorogation of parliament from Her Majesty the Queen in the run up to Brexit.

This has brought all sorts of condemnation from the usual suspects and it seems that Gina Miller is on the anti-Brexit litigious warpath again, where she is due to bring an emergency court case against Boris Johnson for advising the Queen to shut down parliament.

Speaking on the Radio 4 Today Programme, Gina Miller said:

"The courts are not there to decide politics and we're not asking or approaching them to do so. We're asking them to review a point of law and the legal advice the Queen has been given from the Prime Minister, which we believe is illegal."

Now, if you go to the official web site for the Royal Family,, you will find a section about the Queen and the law.

In this it says:

"Although civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law."

And according to the House of Commons Library:

"Prorogation being a prerogative power, there is no obvious legal mechanism by which Parliament could prevent its exercise otherwise than by passing legislation to constrain it."

And as I've pointed out before, the House of Commons briefing paper number 03861 on the Royal Prerogative states at section 2.2 that the power to prorogue parliament is recognised under the common law to still reside within the jurisdiction of the sovereign. It is one of the monarch's personal royal prerogative powers.

And the briefing paper goes on to say that:

"While these powers are recognised as in the jurisdiction of the Sovereign personally, this does not mean that the Sovereign does not act according to the advice of the Government. In all of these cases, the Government provides advice which would be expected to be followed."

Now, as I understand it, Gina Miller is bringing her case to challenge the advice given to the Queen by the Prime Minister, not her actual decision to do so. But then I think Gina Miller expects the court to strike the decision down in the same way they would squash a grant of say a planning application, if they found the advice given to be wrong.

However, in section 1.4 the House of Commons briefing paper asks the question: 'Are all prerogative powers subject to the supervision of the courts?' and it says:

"De Smith’s Judicial Review gives three areas in which the supervision of the courts may not apply."

And guess what one of those areas where the courts shouldn't interfere is? Yes, you've got it, and I quote:

"Where the power has been exercised personally by the Sovereign, who is not subject to legal process. The provisions of the Crown Proceedings Act 1947, which allows claims to be brought against the Crown (generally, meaning the Government) do not apply to the monarch personally."

So, as this personal prerogative power has already been exercised by the Queen who cannot be challenged by the court, how could MPs or judges possibly then reverse it?

And why do you think Boris organised it all nice and early?

There is another point. The Queen prorogues parliament under the advice of the Privy Council.

And when the Privy Council met at Balmoral to advise her to Prorogue parliament, Boris Johnson was not there.

No, when it met it consisted of the head of the Privy Council who is the Queen herself, the Lord President of the Council and Leader of the House of Commons, Jacob Rees-Mogg, The Leader of the House of Lords, Baroness Evans and the Government Chief Whip, Mark Spencer.

So, couldn't it be said that technically it was those three, as the attending members of the Privy Council, that advised the Queen to prorogue parliament? Not Boris Johnson personally?

So from all the above don't you think that Gina Miller's case should fail?


House of Commons Briefing Paper number 03861 on the Royal Prerogative.

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