Introduction
The UK Supreme Court’s decision in R (on the application of Miller) v Prime Minister [2019] UKSC 41, commonly referred to as Miller (No 2), has sparked intense debate among legal scholars, politicians, and constitutional theorists. This landmark case addressed the lawfulness of Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament in September 2019, a move widely perceived as an attempt to limit parliamentary scrutiny of Brexit negotiations. The Court’s unanimous ruling declared the prorogation unlawful, void, and of no effect, asserting that it frustrated Parliament’s ability to carry out its constitutional functions. However, critics such as John Finnis have labelled this judgment a “historic mistake,” arguing that it overstepped judicial boundaries and undermined executive authority (Finnis, 2019). This essay critically evaluates Finnis’s assertion by examining the Miller (No 2) decision in the context of the constitutional principles of responsible government, parliamentary sovereignty, and the rule of law. It argues that while the judgment may raise concerns about judicial overreach, it ultimately reinforces fundamental constitutional principles, particularly the accountability of the executive to Parliament.
Responsible Government and Executive Accountability
Responsible government is a cornerstone of the UK’s unwritten constitution, requiring the executive to be accountable to Parliament for its actions. In Miller (No 2), the Supreme Court held that the prorogation of Parliament for an extended period without reasonable justification prevented MPs from scrutinising the government, thereby breaching the principle of responsible government. The Court reasoned that such an action, lacking a valid rationale, was an abuse of the executive’s prerogative powers (Miller, 2019). This perspective aligns with traditional constitutional norms, as articulated by scholars like Bogdanor, who argue that the executive’s authority must be exercised in a manner that respects parliamentary oversight (Bogdanor, 2009).
However, critics like Finnis contend that the Court’s intervention represents an inappropriate extension of judicial power into matters of political judgment. Finnis argues that determining the length and timing of prorogation falls within the executive’s discretion and that the judiciary lacks the democratic legitimacy to overrule such decisions (Finnis, 2019). Indeed, this raises a valid concern: by setting a precedent for judicial review of prerogative powers, the Court may have blurred the line between legal and political accountability. Nevertheless, it is arguable that the judgment does not undermine responsible government but rather strengthens it by ensuring the executive cannot evade parliamentary scrutiny through procedural tactics. This balance remains a complex and contested aspect of the UK’s constitutional framework.
Parliamentary Sovereignty: Protected or Undermined?
Parliamentary sovereignty, the principle that Parliament is the supreme legal authority in the UK, is central to the Miller (No 2) decision. The Supreme Court emphasised that prorogation, if used to frustrate Parliament’s ability to legislate and hold the government to account, constitutes an affront to sovereignty. The Court explicitly noted that “the effect on the fundamentals of our democracy was extreme,” as the five-week suspension of Parliament prevented it from fulfilling its constitutional role during a critical period of Brexit negotiations (Miller, 2019). This interpretation finds support in academic commentary, such as Elliott’s assertion that the protection of parliamentary sovereignty is a core duty of the judiciary in the absence of a codified constitution (Elliott, 2019).
Conversely, Finnis challenges this view by arguing that the Court’s decision paradoxically undermines parliamentary sovereignty by subjecting executive actions—historically accepted as within the political realm—to judicial control (Finnis, 2019). He posits that the judiciary’s role should be limited to interpreting statute law, not evaluating the propriety of political decisions. While this critique highlights a potential risk of judicial overreach, it overlooks the fact that parliamentary sovereignty is not absolute; it operates within a framework of checks and balances. The Miller (No 2) ruling can thus be seen as a mechanism to preserve, rather than diminish, Parliament’s ability to function as the sovereign body. Without such judicial oversight, the executive could, in theory, suspend Parliament indefinitely, a scenario that would arguably pose a greater threat to sovereignty.
The Rule of Law: Judicial Overreach or Necessary Safeguard?
The rule of law, which dictates that all actions of the state must be grounded in legal authority, was a key justification for the Supreme Court’s ruling in Miller (No 2). The Court asserted that the power to prorogue, though a prerogative power, is not unlimited and must be exercised within lawful bounds. By declaring the prorogation unlawful due to its lack of reasonable justification, the Court upheld the principle that no one, including the executive, is above the law (Miller, 2019). This stance reflects the views of influential legal theorists such as Dicey, who argued that the rule of law requires legal limits on governmental power to prevent arbitrariness (Dicey, 1885).
Finnis, however, critiques this application of the rule of law as an overreach, suggesting that the Court invented a new legal standard for reviewing prerogative powers without clear precedent (Finnis, 2019). He contends that such judicial creativity risks transforming the rule of law into “rule by judges,” where unelected officials dictate political outcomes. This concern is not without merit, especially given the lack of prior case law directly addressing the justiciability of prorogation. Nevertheless, proponents of the judgment argue that the rule of law necessitates judicial intervention in extreme cases where executive action undermines democratic processes. Therefore, while Finnis’s critique identifies a legitimate tension, the Miller (No 2) decision can be defended as a necessary, albeit controversial, safeguard of constitutional norms.
Conclusion
In conclusion, the UK Supreme Court’s judgment in Miller (No 2) is a complex and divisive milestone in constitutional law. While John Finnis’s characterisation of the decision as a “historic mistake” raises valid concerns about judicial overreach and the potential erosion of executive discretion, this essay has argued that the ruling ultimately serves as a victory for fundamental principles. By reinforcing responsible government, it ensures executive accountability to Parliament; by protecting parliamentary sovereignty, it preserves the democratic process; and by upholding the rule of law, it prevents arbitrary use of power. Nevertheless, the decision undeniably shifts the balance between the judiciary and the executive, raising questions about the future scope of judicial review in political matters. As the UK continues to navigate its uncodified constitutional landscape, the implications of Miller (No 2) will remain a subject of rigorous debate, highlighting the delicate interplay between legal principle and political reality.
References
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. (2019) ‘The Supreme Court’s Prorogation Judgment: Guardian of the Constitution or Architect of Destruction?’ Public Law, 2020(1), pp. 1-10.
- Finnis, J. (2019) The Unconstitutionality of the Supreme Court’s Prorogation Judgment. Policy Exchange.
- R (on the application of Miller) v Prime Minister [2019] UKSC 41.
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