Introduction
The case of R (Miller) v The Prime Minister and Cherry and Others [2019] UKSC 41, often referred to as Miller II, stands as a landmark in UK constitutional law. This essay aims to analyse the legal gaps and problems highlighted by the Supreme Court’s ruling, particularly concerning the prorogation of Parliament, and to assess the broader implications for constitutional principles such as parliamentary sovereignty, the rule of law, and the separation of powers. By examining the judicial reasoning in Miller II, this piece will justify the need for legal reform to address ambiguities in the exercise of prerogative powers. Furthermore, it will explain how these issues challenge the unwritten nature of the UK constitution and offer advice to a UK Justice Minister on potential remedies to safeguard democratic accountability. The discussion will be grounded in academic analysis and primary legal sources, ensuring a sound evaluation of the case’s significance.
The Miller II Case: Context and Legal Issues
The Miller II case arose from the controversial decision by Prime Minister Boris Johnson to advise Her Majesty the Queen to prorogue Parliament for five weeks in September 2019, amid critical Brexit negotiations. The claimants, including Gina Miller and Joanna Cherry, argued that this act was unlawful as it frustrated Parliament’s ability to scrutinise the executive during a pivotal political moment. The Supreme Court unanimously held that the prorogation was indeed unlawful, null, and of no effect, reasoning that it prevented Parliament from carrying out its constitutional functions without reasonable justification (R (Miller) v The Prime Minister [2019] UKSC 41).
A key legal issue exposed by this case is the lack of statutory constraints on the exercise of the prerogative power to prorogue Parliament. Historically, such powers are vestiges of monarchical authority, exercised by the executive on the Queen’s behalf. However, as noted by Loveland (2021), the absence of clear legal boundaries allows for potential abuse, especially when prorogation interferes with parliamentary sovereignty. The Court in Miller II established that prerogative powers are justiciable when they impact constitutional principles, marking a significant judicial intervention. Yet, this also highlights a gap in the law: the reliance on judicial oversight rather than legislative clarity to check executive overreach.
Constitutional Principles at Stake
The Miller II ruling profoundly impacts core constitutional principles, notably parliamentary sovereignty and the rule of law. Parliamentary sovereignty, often described as the cornerstone of the UK constitution (Dicey, 1885), asserts that Parliament holds supreme legislative authority. By stymieing parliamentary debate through an extended prorogation, the executive action in question arguably undermined this principle. The Supreme Court’s judgment reaffirmed that the executive cannot obstruct Parliament’s role without lawful justification, thereby upholding democratic accountability (Elliott, 2019).
Moreover, the rule of law, which requires that all actions be grounded in legal authority, was brought into sharp focus. The Court’s determination that the prorogation lacked legal basis demonstrated that even prerogative powers are subject to judicial scrutiny. However, this also reveals a vulnerability in the unwritten constitution: the lack of codified limits on executive power creates uncertainty and potential for political manipulation. As Bogdanor (2020) argues, the UK’s reliance on conventions rather than entrenched laws often leaves constitutional norms open to exploitation, a problem starkly illustrated by Miller II.
The separation of powers, though not formally enshrined in the UK system, is another principle affected. The case underscores the tension between the executive and the judiciary, with the latter stepping in to curb perceived overreach. While this reinforces judicial independence, it also raises questions about the proper balance of power and whether the judiciary is being drawn into political disputes—a concern voiced by some scholars (Hazell, 2020).
Gaps and Problems in the Law
One of the most glaring gaps exposed by Miller II is the undefined scope of prerogative powers. While the case clarified that such powers are reviewable, it did not provide a framework for their legitimate exercise. This ambiguity leaves room for future conflicts, as there are no statutory guidelines on the duration or purpose of prorogation. Indeed, without reform, a future executive could exploit similar tactics, testing the judiciary’s patience and potentially eroding public trust in governance.
Another issue is the reactive nature of legal remedies. The judiciary’s role in Miller II was to invalidate an unlawful act after the fact, but this does little to prevent such actions in the first instance. As Elliott (2019) notes, judicial review, while essential, is not a substitute for proactive legislative boundaries. This problem is compounded by the unwritten nature of the constitution, which lacks the rigidity of codified systems to preempt executive overreach.
Furthermore, the case highlights a democratic deficit. By sidelining Parliament, the executive effectively muted the voice of elected representatives at a critical juncture. This raises broader questions about how the law can better protect democratic processes from being undermined by procedural tactics. Arguably, the absence of entrenched constitutional safeguards exacerbates this issue, leaving the UK vulnerable to political crises.
Advice to the UK Justice Minister
Given these challenges, several recommendations can be made to address the legal and constitutional gaps identified. First, the Justice Minister should advocate for legislation to define the scope and limits of prerogative powers, particularly regarding prorogation. A statute could stipulate maximum durations for prorogation and require parliamentary approval for extensions beyond a certain period. Such a measure would align with the principle of parliamentary sovereignty while providing clarity and predictability.
Second, consideration should be given to codifying key constitutional principles in a written constitution or a comprehensive constitutional statute. While this is a long-term and contentious proposal, it would mitigate the risks posed by the flexibility of the current system. As Bogdanor (2020) suggests, a codified framework could establish clear boundaries for executive action, reducing reliance on judicial intervention.
Finally, the Minister might explore mechanisms for enhancing parliamentary oversight of executive decisions. For instance, requiring the Prime Minister to provide a public justification for prorogation, subject to parliamentary debate, could deter misuse of power. Additionally, establishing a constitutional committee within Parliament to scrutinise executive actions in real-time could serve as a proactive safeguard.
Conclusion
The case of R (Miller) v The Prime Minister and Cherry and Others illuminates significant gaps in UK law concerning the exercise of prerogative powers and their impact on constitutional principles. The Supreme Court’s ruling reaffirmed the importance of parliamentary sovereignty and the rule of law but exposed the vulnerabilities of an unwritten constitution in curbing executive overreach. The lack of statutory constraints on prorogation, the reactive nature of judicial remedies, and the potential democratic deficit are pressing issues that require legislative attention. Therefore, this essay advises the UK Justice Minister to pursue statutory reforms to limit prerogative powers, consider broader constitutional codification, and enhance parliamentary oversight. Addressing these gaps is essential to safeguard the integrity of the UK’s constitutional framework and prevent future crises. The lessons from Miller II serve as a reminder that constitutional resilience depends on clarity, accountability, and a balanced distribution of power.
References
- Bogdanor, V. (2020) Beyond Brexit: Towards a British Constitution. I.B. Tauris.
- 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. 144-162.
- Hazell, R. (2020) Constitutional Policy in a Time of Crisis. Constitution Unit, University College London.
- Loveland, I. (2021) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 9th ed. Oxford University Press.
- R (Miller) v The Prime Minister and Cherry and Others [2019] UKSC 41.
