The case of Gina Miller v the Prime Minister and Others (‘Miller 2’) is presently being heard by the Supreme Court and the issue of justiciability is central. Some commentators have sought to defend the claimant’s submission that no exercise of a prerogative power is completely immune from judicial review. But the Supreme Court, like the Divisional Court, may not be ready to accept that this general proposition accurately reflects the current state of the law. In this post, I put forward an interpretation that salvages the general doctrine of non-justiciability, while departing from the conclusion that the High Court reached. Even if the Supreme Court is minded to accept the traditional doctrine of non-justiciability, it would still not follow that the specific prorogation before the Court is non-justiciable.
Justiciability as a threshold issue
The High Court treated justiciability as a threshold issue: if prorogation, as a subject-matter of executive…
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