Introduction
The relationship between Parliament and the courts in the United Kingdom has long been a cornerstone of constitutional law, rooted in the principle of separation of powers. Parliament, as the supreme law-making authority, traditionally holds a position of dominance under the doctrine of parliamentary sovereignty. However, the courts, tasked with interpreting and upholding the rule of law, have increasingly asserted their role in checking executive and legislative actions. The landmark Supreme Court decision in R (Miller) v The Prime Minister [2019] UKSC 41, commonly referred to as Miller II, represents a significant moment in this evolving dynamic. This case addressed the lawfulness of Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament, raising profound questions about the balance of power between these institutions. This essay will assess whether this decision marks a shift towards equality in the relationship between Parliament and the courts. It will first contextualise parliamentary sovereignty and judicial review, then analyse the implications of the Miller II ruling, and finally evaluate the extent to which this case suggests parity or continued imbalance. The central argument is that while Miller II strengthens the judiciary’s role in holding the executive to account, the relationship remains unequal due to Parliament’s enduring legislative supremacy.
Parliamentary Sovereignty and the Role of the Courts
Parliamentary sovereignty, a principle famously articulated by A.V. Dicey, posits that Parliament can make or unmake any law, and no other body, including the courts, can override its legislation (Dicey, 1885). This doctrine has historically positioned Parliament as the dominant constitutional actor, with the courts confined to interpreting statutes without challenging their validity. Indeed, as Bradley and Ewing note, the courts have traditionally deferred to Parliament’s will, limiting their role to ensuring procedural compliance rather than substantive review (Bradley and Ewing, 2011). However, the growth of judicial review since the mid-20th century has seen the judiciary increasingly scrutinise executive actions, often on behalf of parliamentary interests, especially in cases where statutory interpretation or constitutional principles are at stake.
The Human Rights Act 1998 further complicated this dynamic by empowering courts to issue declarations of incompatibility when legislation conflicts with the European Convention on Human Rights, though they cannot strike down statutes (Loveland, 2018). This framework illustrates a relationship that, while not equal, allows the judiciary a significant supervisory role. Nevertheless, Parliament retains the final word, as it can choose to ignore or amend legislation following such judicial declarations. The question, therefore, is whether landmark rulings like Miller II represent a departure from this traditional imbalance or merely reinforce the courts’ limited, albeit growing, influence.
The Miller II Decision: A Judicial Assertion of Power
The Miller II case arose from the controversial decision by Prime Minister Boris Johnson to advise the Queen to prorogue Parliament for five weeks in 2019, amid intense Brexit negotiations. Opponents argued this was an attempt to stifle parliamentary debate on Brexit, prompting legal challenges on the grounds that it frustrated Parliament’s constitutional functions. In a unanimous decision, the Supreme Court held that the prorogation was unlawful because it prevented Parliament from carrying out its duties without reasonable justification, thereby rendering the advice to the Queen void (R (Miller) v The Prime Minister [2019] UKSC 41).
This ruling was groundbreaking for several reasons. First, it established that the scope of prerogative powers, such as prorogation, is justiciable when it impacts constitutional principles like parliamentary accountability. As Lady Hale and Lord Reed stated in their judgment, the court’s role was to protect the rule of law by ensuring that executive actions do not undermine Parliament’s ability to function. This marked a bold assertion of judicial authority over matters traditionally considered political. Secondly, the decision reinforced the principle that Parliament, not the executive, holds a central role in the UK constitution, with the judiciary acting as its guardian against overreach (Elliott, 2019). Arguably, this suggests a closer alignment between the courts and Parliament, as the former directly upheld the latter’s constitutional significance.
However, it is critical to note that the court’s intervention did not challenge parliamentary sovereignty itself. The judiciary did not question Parliament’s legislative authority but rather protected its procedural rights from executive interference. Thus, while Miller II demonstrates a willingness by the courts to engage with politically sensitive issues, it does not fundamentally alter the hierarchical relationship where Parliament remains supreme.
Does Miller II Indicate an Equal Relationship?
Evaluating whether Miller II signals equality between Parliament and the courts requires consideration of both practical and theoretical implications. On one hand, the decision enhances the judiciary’s role as a check on executive power, aligning with the broader trend of judicial activism seen in cases like R (Jackson) v Attorney General [2005] UKHL 56, where the House of Lords questioned the limits of parliamentary sovereignty in extreme circumstances (Loveland, 2018). By ruling on prorogation, the Supreme Court effectively positioned itself as a defender of constitutional balance, suggesting a partnership with Parliament against executive overreach. Furthermore, as Elliott argues, Miller II reflects a judicial willingness to define constitutional boundaries in the absence of a codified constitution, a role that could be interpreted as equating the courts’ importance to that of Parliament in upholding democratic principles (Elliott, 2019).
On the other hand, this partnership is not synonymous with equality. Parliament retains its legislative supremacy, as the courts cannot annul statutes or compel Parliament to act in a particular way. Even in Miller II, the judiciary’s role was reactive, responding to a specific executive action rather than asserting proactive control over parliamentary functions. Moreover, Parliament could, in theory, legislate to limit judicial review or redefine prerogative powers, as it did with the Dissolution and Calling of Parliament Act 2022, which reasserted political control over dissolution following earlier judicial scrutiny in cases like Miller I (Bradley and Ewing, 2022). This capacity to override or counteract judicial decisions underscores the enduring imbalance. Generally, while the courts have grown more assertive, their authority remains contingent on parliamentary acquiescence.
Conclusion
In conclusion, the Supreme Court’s decision in R (Miller) v The Prime Minister [2019] UKSC 41 represents a significant moment in the evolving relationship between Parliament and the courts. The ruling highlights the judiciary’s increasing role in safeguarding constitutional principles, particularly by protecting parliamentary processes from executive interference. However, this does not equate to an equal relationship. Parliamentary sovereignty continues to position Parliament as the ultimate authority, with the courts confined to interpretive and supervisory functions. While Miller II demonstrates judicial willingness to engage with politically charged issues, it does not fundamentally alter the constitutional hierarchy. The broader implication is that the UK constitution remains a dynamic framework where tensions between these institutions persist, reflecting an ongoing negotiation of power rather than a settled equality. Future developments, whether through legislation or further judicial rulings, will likely continue to shape this delicate balance, underscoring the importance of vigilance in maintaining democratic accountability.
References
- Bradley, A.W. and Ewing, K.D. (2011) Constitutional and Administrative Law. 15th edn. Pearson Education.
- Bradley, A.W. and Ewing, K.D. (2022) Constitutional and Administrative Law. 17th edn. Pearson Education.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. (2019) ‘The Supreme Court’s Judgment in Miller II: An Assessment’, Public Law, 2020(1), pp. 1-15.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 8th edn. Oxford University Press.
- R (Miller) v The Prime Minister [2019] UKSC 41.
