Introduction
The UK Supreme Court’s unanimous decision in R (on the application of Miller) v Prime Minister [2019] UKSC 41, commonly referred to as Miller (No 2), marked a significant moment in British constitutional history. The court ruled that the prorogation of Parliament by Prime Minister Boris Johnson in September 2019 was unlawful, as it frustrated Parliament’s ability to carry out its constitutional functions without reasonable justification. Legal scholar John Finnis, in his critique, labelled this judgment a “historic mistake,” arguing it overstepped judicial bounds and undermined executive authority (Finnis, 2019). This essay critically discusses Finnis’s assertion by evaluating the Supreme Court’s decision against the constitutional principles of responsible government, parliamentary sovereignty, and the rule of law. While acknowledging Finnis’s concerns regarding judicial overreach, it argues that the judgment ultimately reinforced fundamental principles, particularly the protection of parliamentary accountability and the rule of law, though not without raising questions about the judiciary’s role in political matters.
Responsible Government and the Role of Prorogation
Responsible government, a cornerstone of the UK’s unwritten constitution, dictates that the executive must be accountable to Parliament. The Supreme Court in Miller (No 2) held that the prolonged prorogation of Parliament—spanning five weeks during a critical period leading to the Brexit deadline—impeded Parliament’s ability to scrutinise the government, thereby breaching this principle (Supreme Court, 2019). Indeed, the timing and duration of the prorogation were perceived by many as an attempt to limit debate on Brexit, a matter of profound national importance. The court’s intervention can thus be seen as a necessary safeguard to ensure that the executive does not evade accountability.
However, Finnis contends that the court’s decision undermined responsible government by interfering with the executive’s prerogative powers, specifically the power to prorogue Parliament, traditionally exercised without judicial oversight (Finnis, 2019). He argues that such matters are inherently political and should be resolved through parliamentary mechanisms rather than judicial rulings. While this perspective highlights the risk of judicial overreach, it arguably overlooks the exceptional nature of the prorogation in question. Typically, prorogation is a routine act, but in this instance, its length and context suggested an intent to stifle parliamentary scrutiny, a view supported by the court’s emphasis on the lack of “reasonable justification” for the duration (Supreme Court, 2019). Therefore, while Finnis’s concerns about executive autonomy are not without merit, the court’s ruling can be interpreted as a defence of responsible government rather than a historic mistake.
Parliamentary Sovereignty: Reinforcing or Undermining?
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, 1959). The Miller (No 2) judgment directly engaged with this principle by asserting that prorogation must not frustrate Parliament’s ability to exercise its legislative and scrutiny functions. The court reasoned that without such limits, the executive could effectively suspend parliamentary sovereignty through procedural means, a scenario incompatible with constitutional norms (Supreme Court, 2019). This approach appears to bolster parliamentary sovereignty by protecting Parliament from executive overreach, particularly in a context where Brexit-related tensions heightened the risk of such overreach.
Finnis, on the other hand, criticises the judgment for undermining parliamentary sovereignty indirectly by expanding judicial power at the expense of political processes (Finnis, 2019). He argues that the court’s decision to render prorogation justiciable—a matter previously considered beyond judicial scrutiny—sets a precedent for courts to intervene in areas traditionally reserved for Parliament and the executive. While this concern about shifting constitutional boundaries holds some weight, it is worth noting that the court did not seek to usurp parliamentary authority but rather to ensure its functionality. Furthermore, as Elliott (2019) suggests, parliamentary sovereignty does not equate to unchecked executive power; instead, it necessitates mechanisms to prevent the executive from sidelining Parliament. Thus, while Finnis’s critique raises valid questions about judicial scope, the judgment arguably served to uphold, rather than undermine, parliamentary sovereignty.
The Rule of Law: A Victory for Constitutional Principle?
The rule of law, a principle requiring that all actions, including those of the government, be subject to legal constraints, was central to the Supreme Court’s reasoning in Miller (No 2). The court explicitly grounded its decision in the idea that even prerogative powers, such as prorogation, are not immune to judicial review if they contravene constitutional principles (Supreme Court, 2019). By declaring the prorogation unlawful, the court reinforced the notion that no one, not even the executive, is above the law—a fundamental tenet of the rule of law. This interpretation aligns with the views of scholars like Bingham (2010), who argue that the rule of law requires accessible and predictable legal limits on power.
Finnis, however, disputes this perspective, asserting that the court’s intervention represents a “historic mistake” by overextending the judiciary’s role into political terrain, thus violating the separation of powers implicit in the UK constitution (Finnis, 2019). He contends that the lack of clear legal standards governing prorogation meant the court was effectively creating law rather than applying it, a point that raises legitimate concerns about judicial activism. Nevertheless, it is arguable that the court’s approach was not an overreach but a necessary response to an unprecedented situation. As Hazell and Melton (2020) note, the absence of prior judicial guidance on prorogation necessitated the court’s development of a constitutional standard to uphold the rule of law. Consequently, while Finnis’s critique highlights potential risks, the judgment can be seen as a victory for the rule of law by ensuring legal accountability over executive actions.
Conclusion
In conclusion, the UK Supreme Court’s judgment in Miller (No 2) is a complex and contentious decision that cannot be easily dismissed as either a historic mistake or an unqualified victory for fundamental principle. On one hand, Finnis’s critique underscores genuine concerns about judicial overreach and the potential erosion of executive autonomy and political resolution mechanisms (Finnis, 2019). On the other, the court’s ruling reinforced critical constitutional principles, notably responsible government, parliamentary sovereignty, and the rule of law, by ensuring that executive actions do not undermine parliamentary accountability or evade legal constraints. While the judgment pushes the boundaries of judicial intervention, it arguably does so in service of protecting the constitutional framework during a period of exceptional political tension. The implications of this decision remain significant, as it sets a precedent for future judicial oversight of executive powers, raising ongoing questions about the balance between the judiciary, executive, and Parliament in the UK’s unwritten constitution. Ultimately, rather than a historic mistake, Miller (No 2) might be better understood as a necessary, if controversial, assertion of constitutional principles.
References
- Bingham, T. (2010) The Rule of Law. Allen Lane.
- Dicey, A.V. (1959) Introduction to the Study of the Law of the Constitution. 10th ed. Macmillan.
- Elliott, M. (2019) Miller (No 2) and the Rule of Law. Public Law, 2020(Jan), 1-5.
- Finnis, J. (2019) The unconstitutionality of the Supreme Court’s prorogation judgment. Policy Exchange.
- Hazell, R. and Melton, J. (2020) The Constitution after Miller (No 2). In: Jowell, J. and O’Cinneide, C. (eds.), The Changing Constitution. 9th ed. Oxford University Press.
- Supreme Court (2019) R (on the application of Miller) v The Prime Minister [2019] UKSC 41. UK Supreme Court.
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