Boris Johnson was in breach of the British constitution

The argument

The argument turns on a distinction between holding a power and the use made of it. Parliament is a central pillar of the British legislative process, a standing the British constitution enshrines rather than merely permits. Everything else follows from taking that standing seriously. Prorogation itself is not in dispute. Boris Johnson may prorogue Parliament in order to end a parliamentary session; that is an ordinary and long-established mechanism, and its routine use raises no constitutional question at all. The power exists precisely because sessions have to be brought to a close. What the argument identifies is a change in the purpose to which the power was put. Using prorogation to end a session is one thing. Using it as a mechanism to bypass the democratic process — to remove Parliament from the field at the decisive moment, and so to push the country towards a no-deal Brexit that Parliament might otherwise have prevented — is another. The action is formally identical in each case, which is what makes the defence available; the constitutional character of the action is not, because in the second case the effect is to disable the institution the constitution treats as central. That is why proponents of this position describe it as a clear violation rather than a misjudgement. An unwritten constitution depends on powers being exercised for the purposes they exist to serve, since there is no codified text enumerating the exceptions. A power conferred to close a session, deployed instead to prevent legislative scrutiny of the most consequential decision before the country, is used against the arrangement that granted it. On this reading the move was not legal. Its legality cannot be established by pointing to the existence of the power alone, because the constitution constrains not only what a Prime Minister may do but what a Prime Minister may do it for.

Context

The prorogation of Parliament, as laid out in the laws and conventions that make up the British constitution, is designed to be used to bring an end to the parliamentary session and outline a new legislative agenda. Because Boris Johnson used the prorogation to stymy debate, it was in breach of the constitution. The primary function of the prorogation had nothing to do with outlining a new agenda and everything to do with stifling democracy.

Premises

Counter-arguments

Britain does not have a codified constitution. The government is controlled and overseen by a litany of laws and customs that dictate parliamentary behaviour and proceedings. There is no constitutional mechanism that says the prime minister cannot prorogue parliament for as long as he or she deems fit. Without a codified constitution, Johnson is well within his rights to prorogue parliament, order the Queen to veto anti-Brexit laws, or even invent new public holidays in the run-up to October 31 to prevent parliament from sitting.

Rejecting the premises

[Rejecting P3] Breaching constitutional norms is not illegal. There is no codified British constitution. Therefore, there are very few formal limits on executive power.