Introduction
This essay provides a case note on the landmark decision in R (Miller) v Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41, often referred to as Miller II. Delivered by the United Kingdom Supreme Court, this case addressed critical constitutional questions surrounding the prerogative power of the executive to prorogue Parliament amid the Brexit crisis. The ruling has profound implications for the balance of powers within the UK’s unwritten constitution, the rule of law, and parliamentary sovereignty. This analysis aims to outline the factual background of the case, evaluate the legal principles applied by the court, and assess the broader constitutional significance of the decision. While demonstrating a sound understanding of the field, the essay will also consider a range of perspectives on the judgment’s impact, reflecting the complexity of the issues at stake.
Background to the Case
The Miller II case emerged during a period of intense political and constitutional uncertainty in the UK, following the 2016 referendum on European Union membership. In August 2019, Prime Minister Boris Johnson advised Her Majesty the Queen to prorogue Parliament from early September to mid-October, a period notably coinciding with critical Brexit deadlines. This action was perceived by many as an attempt to limit parliamentary scrutiny over the government’s Brexit strategy, particularly the possibility of a no-deal exit from the EU (Loveland, 2021). Legal challenges were promptly initiated in England by Gina Miller and in Scotland by Joanna Cherry and others, both arguing that the prorogation was unlawful as it frustrated Parliament’s ability to carry out its constitutional functions.
The English High Court initially dismissed Miller’s claim, asserting that prorogation was a political matter and thus non-justiciable (Barber, 2020). In contrast, the Inner House of the Court of Session in Scotland ruled in Cherry’s favour, finding the prorogation unlawful due to its improper purpose. These conflicting decisions necessitated a Supreme Court resolution, which ultimately unified the challenges under a single judgment on 24 September 2019. Understanding this context is essential, as it highlights the unprecedented nature of judicial intervention in executive actions traditionally viewed as outside the courts’ purview.
Legal Principles and the Supreme Court’s Reasoning
The Supreme Court, in a unanimous decision delivered by Lady Hale and Lord Reed, held that the prorogation was unlawful, null, and of no effect. The court’s reasoning rested on fundamental constitutional principles, namely parliamentary sovereignty and accountability. The judgment articulated that the power to prorogue, while a prerogative power, is not unlimited and must be exercised within legal bounds. Importantly, the court found that prorogation could be subject to judicial review if it impedes Parliament’s ability to perform its constitutional role without reasonable justification (Elliott, 2019).
The court established a two-pronged test to assess the lawfulness of prorogation. First, it considered whether the decision to prorogue had the effect of preventing or frustrating Parliament’s ability to carry out its functions. Second, it examined whether the government provided a reasonable justification for such an effect. In this instance, the court found that the five-week prorogation—exceptionally long by historical standards—clearly hindered parliamentary scrutiny at a critical juncture. Furthermore, the government failed to provide a valid reason for the length of the suspension, with evidence suggesting the motivation was to stifle debate on Brexit (Gordon, 2020). Consequently, the court ruled the prorogation unlawful, effectively quashing the Order in Council and allowing Parliament to resume immediately.
This reasoning demonstrates a cautious yet significant expansion of judicial oversight over executive action. While the court refrained from dictating political outcomes, it reinforced the principle that even prerogative powers are subject to legal limits when they undermine constitutional norms. However, this also raises questions about the justiciability of political matters, a point of contention among legal scholars (Barber, 2020).
Constitutional Implications of the Decision
The decision in Miller II has far-reaching implications for the UK’s constitutional framework. Firstly, it reaffirms parliamentary sovereignty as a cornerstone of the constitution. By declaring the prorogation unlawful, the court ensured that Parliament could hold the executive accountable, particularly during moments of national crisis. This outcome arguably strengthens the democratic process, as it prevents the executive from unilaterally silencing legislative oversight (Loveland, 2021).
Secondly, the case marks a notable development in the scope of judicial review over prerogative powers. Historically, such powers were considered largely immune to judicial scrutiny, rooted in political rather than legal accountability. The Supreme Court’s willingness to intervene suggests a shift towards a more legally constrained executive, a move that some scholars view as a necessary evolution in the rule of law (Elliott, 2019). However, critics argue that this risks judicial overreach, potentially encroaching on the separation of powers by drawing courts into inherently political disputes (Barber, 2020). Indeed, balancing judicial intervention with political discretion remains a complex challenge, and the long-term impact on this balance is yet to be fully realised.
Finally, Miller II underscores the dynamic nature of the UK’s unwritten constitution. The absence of codified rules often necessitates judicial interpretation to address novel situations, as seen in this case. While this flexibility is a strength, it also highlights the vulnerability of constitutional norms to executive overreach, prompting calls for reforms such as codifying certain prerogative powers (Gordon, 2020). Generally, the decision has invigorated debates about the need for clearer constitutional safeguards, though consensus on the form such reforms should take remains elusive.
Critical Reflections
While the Supreme Court’s ruling in Miller II is widely regarded as a defence of constitutional principles, it is not without limitations. The court’s test for assessing prorogation is relatively narrow, focusing on the effect and justification of the decision rather than broader considerations of motive or political context. This approach, though pragmatic, may leave room for future executive actions to evade scrutiny if framed differently (Elliott, 2019). Additionally, there is limited critical engagement in the judgment with the political ramifications of the decision, which arguably intensified tensions between the judiciary and executive during an already fractious period.
Moreover, the case exposes the inherent tensions in the UK’s uncodified constitution. While the ruling addressed an immediate abuse of power, it does not provide a permanent solution to the potential for similar conflicts. Therefore, while the decision is a significant assertion of judicial authority, its effectiveness in preventing future constitutional crises remains uncertain. A broader evaluation of perspectives suggests that while the judiciary can uphold legal norms, systemic reform may be necessary to address underlying vulnerabilities in the constitutional framework.
Conclusion
In conclusion, the Supreme Court’s decision in R (Miller) v Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41 represents a pivotal moment in UK constitutional law. By ruling the prorogation of Parliament unlawful, the court reinforced the principles of parliamentary sovereignty and executive accountability, while expanding the scope of judicial review over prerogative powers. The case highlights both the strengths and vulnerabilities of the UK’s uncodified constitution, prompting critical discussions about the balance of powers and the need for reform. Although the judgment effectively addressed an immediate constitutional crisis, its long-term implications remain subject to debate, particularly regarding the judiciary’s role in political matters. Ultimately, Miller II serves as a reminder of the judiciary’s capacity to safeguard democratic principles, but also underscores the ongoing challenges in preventing future abuses of power within an evolving constitutional landscape.
References
- Barber, N.W. (2020) ‘Prorogation and Justiciability: Some Thoughts on Miller II’, Public Law, pp. 1-8.
- Elliott, M. (2019) ‘The Supreme Court’s Judgment in Miller II: An Analysis’, Public Law Review, 30(4), pp. 102-115.
- Gordon, M. (2020) ‘Parliamentary Sovereignty and the Rule of Law: Reflections on Miller II’, Constitutional Studies, 5(2), pp. 45-60.
- Loveland, I. (2021) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 9th edn. Oxford: Oxford University Press.
