Introduction
The UK Supreme Court’s judgment in R (on the application of Miller) v Prime Minister [2019] UKSC 41, often referred to as Miller (No 2), marked a pivotal moment in British constitutional law. This case addressed the legality of Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament for five weeks in 2019, a decision the Court unanimously deemed unlawful due to its effect on parliamentary accountability. John Finnis, in his critique, labels the judgment a “historic mistake,” arguing it oversteps judicial bounds and undermines constitutional norms (Finnis, 2019). This essay critically evaluates Finnis’s assertion by examining the decision through the lens of key constitutional principles: responsible government, parliamentary sovereignty, and the rule of law. It argues that while the judgment can be seen as a robust defence of fundamental principles, particularly parliamentary sovereignty and accountability, there are valid concerns regarding judicial overreach and the broader implications for the separation of powers. The discussion will consider both perspectives, ultimately suggesting that the decision, while principled, may have long-term constitutional ramifications.
Responsible Government and the Role of Prorogation
Responsible government is a foundational principle of the UK constitution, ensuring that the executive remains accountable to Parliament. The prorogation of Parliament in 2019, advised by the Prime Minister, was perceived by many as a tactic to limit parliamentary scrutiny during a critical period of Brexit negotiations. The Supreme Court in Miller (No 2) ruled that this action frustrated Parliament’s ability to hold the government to account, thereby breaching the principle of responsible government. Lady Hale and Lord Reed, delivering the judgment, noted that the effect of the prorogation was to prevent Parliament from carrying out its constitutional functions without reasonable justification ([2019] UKSC 41, para 50). This reasoning underscores a commitment to ensuring that executive actions do not undermine democratic accountability.
However, Finnis argues that the Court’s intervention was unwarranted, as prorogation is a political tool within the Prime Minister’s prerogative powers, traditionally beyond judicial review (Finnis, 2019). He contends that the judiciary’s decision to scrutinise the motives behind the advice to the Queen represents an encroachment into political territory, thus disrupting the balance of responsible government. Indeed, critics might argue that the Court’s ruling risks politicising the judiciary, as it involves assessing the intentions of the executive—a task arguably better suited to parliamentary mechanisms such as votes of no confidence. While the Court’s intentions may have been to safeguard accountability, this perspective highlights the potential for judicial overreach to destabilise the delicate interplay between executive and legislative branches.
Parliamentary Sovereignty: A Principle Upheld?
Parliamentary sovereignty, the cornerstone of the UK’s unwritten constitution, asserts that Parliament is the supreme legal authority, capable of making or repealing any law (Dicey, 1885). The Miller (No 2) judgment can be seen as a victory for this principle, as the Court sought to protect Parliament’s role in scrutinising the executive, particularly during a period of significant national decision-making. By deeming the prorogation unlawful, the judiciary effectively ensured that Parliament could reconvene and fulfil its legislative and oversight functions. This aligns with historical precedents, such as the Case of Proclamations (1611), which established that prerogative powers cannot override parliamentary authority (Elliott and Thomas, 2020).
Nevertheless, Finnis critiques the judgment as undermining parliamentary sovereignty by allowing the judiciary to dictate the operation of parliamentary processes (Finnis, 2019). He argues that the Court’s decision to nullify the prorogation effectively interferes with the political judgment of both the executive and, indirectly, Parliament itself, which could have addressed the issue through political means. This viewpoint raises a pertinent question: does judicial intervention, even in defence of Parliament, risk substituting judicial will for parliamentary autonomy? While the Court’s ruling arguably upholds the spirit of parliamentary sovereignty, it simultaneously introduces a precedent whereby judicial review could constrain political discretion, potentially altering the traditional balance of power.
The Rule of Law: Reinforcement or Overreach?
The rule of law, as articulated by Lord Bingham, requires that all individuals and institutions, including the government, are subject to and accountable under the law (Bingham, 2010). In Miller (No 2), the Supreme Court’s decision to subject the Prime Minister’s advice to judicial scrutiny can be viewed as a strong affirmation of this principle. The Court held that the prorogation lacked legal justification and thus fell outside the scope of lawful prerogative powers ([2019] UKSC 41, para 55). This stance reinforces the notion that no one, not even the executive, is above the law, thereby protecting constitutional integrity during a period of political turbulence.
On the other hand, Finnis contends that the Court’s interpretation of the rule of law is flawed, as it extends judicial oversight into areas of political discretion that are not traditionally justiciable (Finnis, 2019). He argues that the judiciary’s creation of a new legal standard to assess the “reasonableness” of prorogation lacks a clear basis in precedent or statute, thus constituting a form of judicial activism. Furthermore, this expansion of judicial power could set a dangerous precedent, enabling courts to intervene in future political disputes under the guise of the rule of law. While the decision may appear to uphold legal accountability, it raises concerns about the judiciary overstepping its constitutional role, potentially undermining the separation of powers—a principle equally vital to the rule of law.
Conclusion
In conclusion, the Supreme Court’s judgment in Miller (No 2) presents a complex balance between upholding constitutional principles and risking judicial overreach. On one hand, the decision can be seen as a victory for fundamental principles such as responsible government, parliamentary sovereignty, and the rule of law, as it ensured executive accountability and protected parliamentary functions during a critical period. On the other hand, as Finnis argues, the ruling may be regarded as a historic mistake due to its potential to blur the boundaries between judicial and political spheres, thereby unsettling the traditional separation of powers (Finnis, 2019). The long-term implications of this judgment remain uncertain; it may either strengthen constitutional safeguards or pave the way for increased judicial intervention in political matters. Ultimately, while the Court’s intentions appear grounded in principle, a cautious approach is necessary to ensure that such interventions do not inadvertently erode the political mechanisms central to the UK’s unwritten constitution. This debate underscores the ongoing tension between law and politics in a system without a codified framework, suggesting a need for clearer delineation of judicial and executive roles in future constitutional reforms.
References
- Bingham, T. (2010) The Rule of Law. Penguin Books.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
- 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.
