John Major is wrong to threaten legal action over prorogation

John Major has threatened personally to bring legal action if the next prime minister were to attempt to prorogue Parliament in the autumn. On Tuesday, Dominic Grieve MP moved an amendment that might encourage legal challenge to an attempt to prorogue. It is unclear whether John Major sought to rely on the Grieve amendment or instead made his case on wider grounds, in line with a recent argument that the courts would block prorogation. It might well be politically unwise to prorogue Parliament in the autumn, making a bad situation worse. It may be difficult to imagine situations in which it would be a helpful contribution to securing UK exit from the EU. We take no view on those questions. But it would be extraordinary if the courts were to quash a prime minister’s recommendation to prorogue Parliament on legal grounds. 

Like the prerogatives to dissolve Parliament (which the Fixed-term Parliaments Act 2011 swept away) and to appoint or dismiss ministers, this is a constitutional prerogative in relation to which one would never previously have expected judicial intervention.