Introduction
The UK Supreme Court’s judgment in R (on the application of Miller) v The Prime Minister (2019), commonly referred to as Miller (No 2), stands as a landmark decision in British constitutional law. The case arose from the decision by Prime Minister Boris Johnson to prorogue Parliament for five weeks in September 2019, amid intense Brexit negotiations. The Court unanimously ruled that the prorogation was unlawful, as it prevented Parliament from carrying out its constitutional functions without reasonable justification. This essay critically evaluates the contention that Miller (No 2) represents a ‘historic mistake’ rather than a ‘victory for fundamental principle.’ It examines the judgment through the lens of key constitutional principles: responsible government, parliamentary sovereignty, and the rule of law. The analysis will argue that while the decision can be seen as a principled defence of parliamentary accountability, it also raises significant concerns about judicial overreach and the delicate balance of power in the UK’s unwritten constitution.
Responsible Government and the Miller (No 2) Judgment
Responsible government, a cornerstone of the UK’s constitutional framework, demands that the executive remains accountable to Parliament. In Miller (No 2), the Supreme Court found that the prorogation of Parliament for an extended period frustrated this accountability, as it curtailed Parliament’s ability to scrutinise the government at a critical juncture in Brexit negotiations (UKSC, 2019). Lady Hale and Lord Reed, in their joint judgment, emphasised that the executive must provide a reasonable justification for such an action, which the government failed to do. From this perspective, the decision appears to reinforce the principle of responsible government by ensuring that the executive cannot evade parliamentary oversight through procedural tactics.
However, critics argue that the judgment disrupts the traditional balance inherent in responsible government. Historically, the relationship between the executive and Parliament has been governed by constitutional conventions rather than justiciable rules (Dicey, 1885). By intervening in what some view as a political matter—namely, the timing and duration of prorogation—the Court arguably overstepped its role. As Elliott (2019) notes, such judicial involvement risks transforming political conventions into legal constraints, potentially undermining the flexibility of the UK’s uncodified constitution. Thus, while the decision may protect accountability in the short term, it could be seen as a mistake if it disrupts the long-standing dynamic of executive-parliamentary relations.
Parliamentary Sovereignty: A Victory or a Misstep?
Parliamentary sovereignty, often described as the bedrock of the UK constitution, asserts that Parliament is the supreme legal authority, capable of making or unmaking any law (Dicey, 1885). The Miller (No 2) judgment can be interpreted as a victory for this principle, as it safeguarded Parliament’s ability to function without undue interference from the executive. The Court’s ruling ensured that MPs could debate and legislate on pressing matters, particularly Brexit, thereby upholding Parliament’s central role in the constitutional order.
Nevertheless, the judgment has been criticised for paradoxically undermining parliamentary sovereignty by expanding judicial power at the expense of political actors. Some scholars argue that the Supreme Court, in determining the lawfulness of prorogation, encroached upon matters traditionally left to parliamentary and executive discretion (Finnis, 2019). This raises the question of whether the judiciary, in seeking to protect sovereignty, inadvertently shifted power towards itself—a development that could be seen as a historic mistake if it sets a precedent for greater judicial involvement in political processes. Therefore, while the decision ostensibly defends parliamentary sovereignty, it also highlights unresolved tensions in the separation of powers.
The Rule of Law: Reinforcing Principle or Overreaching Authority?
The rule of law, as articulated by Lord Bingham (2010), requires that all actions of the state, including those of the executive, must be lawful and subject to scrutiny. In Miller (No 2), the Supreme Court positioned itself as a guardian of this principle by declaring the prorogation unlawful and void. The Court reasoned that the executive’s action had the effect of frustrating Parliament’s constitutional role without a valid legal basis, thereby breaching the rule of law (UKSC, 2019). From this viewpoint, the judgment represents a victory for fundamental principle, ensuring that even the highest offices are not above legal accountability.
On the other hand, the decision has been critiqued for extending the rule of law into areas previously considered non-justiciable. Critics, including Finnis (2019), argue that the Court’s reasoning relied on vague and novel principles, such as the undefined limits of executive power during prorogation. This lack of clarity could be seen as a mistake, as it risks creating uncertainty in constitutional practice. Furthermore, by delving into what many regard as a political rather than legal issue, the judiciary may have stretched the boundaries of the rule of law in a manner that threatens its neutrality. Indeed, this aspect of the judgment fuels the debate over whether Miller (No 2) represents a misjudgement rather than a principled stand.
Balancing Principle and Precedent: A Historic Mistake?
At the heart of the debate surrounding Miller (No 2) lies the question of whether the judgment prioritises constitutional principle over practical governance. Supporters of the decision argue that it upholds vital democratic norms by ensuring executive accountability and protecting parliamentary function at a time of national crisis. The ruling, in this light, aligns with the evolving nature of the UK constitution, which must adapt to modern challenges such as Brexit (Barber, 2020).
Conversely, detractors contend that the judgment risks destabilising the constitutional balance by elevating judicial authority over political processes. If future courts follow this precedent, there is a danger that inherently political disputes—such as the timing of parliamentary sessions—could become subject to judicial review, thus eroding the flexibility and pragmatism of the UK system (Elliott, 2019). Arguably, this potential long-term consequence supports the view that Miller (No 2) may be a historic mistake, even if its intentions were grounded in principle.
Conclusion
In conclusion, the UK Supreme Court’s judgment in Miller (No 2) presents a complex interplay of constitutional principles and practical implications. On one hand, it can be seen as a victory for responsible government, parliamentary sovereignty, and the rule of law, as it ensured that the executive could not sidestep parliamentary scrutiny without justification. On the other hand, the decision raises legitimate concerns about judicial overreach and the risk of undermining the political nature of the UK’s unwritten constitution. While the ruling addressed an immediate constitutional crisis, its broader impact on the balance of power remains uncertain. Ultimately, whether Miller (No 2) is deemed a historic mistake or a triumph of principle depends on one’s perspective on the proper role of the judiciary in a system historically defined by parliamentary dominance. Further reflection and debate are necessary to fully assess the long-term ramifications of this landmark case.
References
- Barber, N.W. (2020) ‘The Supreme Court and Brexit: A Constitutional Crisis?’, Public Law, 2020, pp. 1-15.
- Bingham, T. (2010) The Rule of Law. London: Penguin Books.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. London: Macmillan.
- Elliott, M. (2019) ‘The Supreme Court’s Prorogation Judgment: A Storm in a Teacup?’, Public Law, 2019, pp. 654-670.
- Finnis, J. (2019) ‘The Unconstitutionality of the Supreme Court’s Prorogation Judgment’, Policy Exchange Judicial Power Project, 2019.
- UKSC (2019) R (on the application of Miller) v The Prime Minister [2019] UKSC 41. UK Supreme Court.
