Introduction
The UK Supreme Court’s decision in R (on the application of Miller) v The Prime Minister [2019] UKSC 41, commonly referred to as Miller (No 2), represents a landmark moment in British constitutional law. This case arose from the controversial prorogation of Parliament by Prime Minister Boris Johnson in August 2019, which was subsequently deemed unlawful by the Supreme Court. Legal scholar John Finnis, in his critique, argues that the judgment constitutes a “historic mistake” rather than a triumph of fundamental principle, asserting that it oversteps constitutional boundaries (Finnis, 2019). This essay critically evaluates Finnis’ perspective by examining the judgment through the lens of key constitutional principles: responsible government, parliamentary sovereignty, and the rule of law. While acknowledging the arguments put forth by Finnis regarding judicial overreach, this essay will also consider whether the Court’s decision can be justified as a necessary defence of constitutional norms in the face of executive overreach. The discussion aims to provide a balanced analysis, assessing both critiques and defences of the judgment.
Responsible Government and Executive Prerogative
Responsible government, a cornerstone of the UK’s unwritten constitution, ensures that the executive is accountable to Parliament. The principle implies that the government must maintain the confidence of the House of Commons and operate within limits that allow parliamentary scrutiny. In Miller (No 2), the Supreme Court ruled that the prorogation of Parliament for five weeks, at a critical time during Brexit negotiations, frustrated Parliament’s ability to hold the executive to account. The Court argued that such a lengthy suspension—without reasonable justification—undermined the constitutional balance between the executive and legislature (R (Miller) v Prime Minister, 2019).
Finnis contends that the Court’s intervention represents an overreach, as prorogation is a prerogative power historically exercised by the executive without judicial oversight (Finnis, 2019). He argues that the judiciary lacks the authority to determine the appropriateness of political decisions, such as the timing or length of prorogation, which should remain within the political domain. This perspective aligns with traditional views of the separation of powers, where courts refrain from interfering in matters of high policy. However, it can be countered that the principle of responsible government necessitates some form of check on executive actions that clearly impede parliamentary functions. Indeed, the Court’s reasoning was grounded in ensuring that the executive does not act in a manner that renders parliamentary accountability impossible—an outcome that, arguably, serves to protect rather than undermine constitutional norms.
Parliamentary Sovereignty: Protection or Erosion?
Parliamentary sovereignty dictates that Parliament is the supreme legal authority within the UK, capable of making or unmaking any law without external interference (Dicey, 1885). In Miller (No 2), the Supreme Court positioned itself as a guardian of this principle by ruling that prorogation must not prevent Parliament from exercising its sovereign functions, particularly during a period of significant national importance. The judgment emphasized that the executive’s actions cannot frustrate Parliament’s ability to legislate or scrutinize government policy (R (Miller) v Prime Minister, 2019).
Finnis critiques this stance, asserting that the Court effectively undermined parliamentary sovereignty by imposing judicial constraints on a political process (Finnis, 2019). He argues that such decisions should be resolved through political mechanisms—such as votes of no confidence—rather than judicial rulings. From this viewpoint, the judiciary’s intervention could be seen as a historic mistake, as it risks transforming a political constitution into a judicially dominated one. On the other hand, defenders of the judgment might argue that parliamentary sovereignty is meaningless if the executive can unilaterally suspend Parliament’s ability to function. Therefore, the Court’s role in Miller (No 2) can be interpreted as a necessary safeguard, ensuring that sovereignty is not merely theoretical but practically enforceable. This tension highlights the complexity of balancing judicial intervention with the preservation of political processes.
The Rule of Law: A Justifiable Intervention?
The rule of law, another fundamental constitutional principle, requires that all actions, including those of the government, are subject to legal constraints and accountability. In Miller (No 2), the Supreme Court held that the prorogation lacked any lawful justification and thus breached the rule of law by preventing Parliament from performing its constitutional duties (R (Miller) v Prime Minister, 2019). The unanimous decision of the eleven justices underscored the importance of legality, even in matters traditionally viewed as political.
Finnis, however, challenges this interpretation, describing the judgment as an unconstitutional overreach that disregards the non-justiciable nature of prerogative powers (Finnis, 2019). He argues that the Court created new legal standards without clear precedent, thereby undermining the predictability and certainty central to the rule of law itself. This critique invites reflection on whether the judiciary overstepped its role by venturing into political territory. Nevertheless, it is worth considering that the rule of law also demands constraints on arbitrary power. If the executive can prorogue Parliament indefinitely and without justification, as was arguably the case here, the absence of judicial oversight could lead to unchecked authority—a direct threat to constitutional order. Thus, while Finnis’ concerns about judicial overreach are not without merit, the Court’s intervention might be seen as a necessary, if controversial, application of the rule of law in extraordinary circumstances.
Conclusion
The Supreme Court’s judgment in Miller (No 2) remains a deeply contentious issue within UK constitutional law, as evidenced by Finnis’ description of it as a “historic mistake” (Finnis, 2019). This essay has critically discussed the decision through the principles of responsible government, parliamentary sovereignty, and the rule of law. On one hand, Finnis’ critique highlights legitimate concerns about judicial overreach and the potential erosion of the political constitution. On the other, the Court’s ruling can be viewed as a vital defence of constitutional norms, protecting Parliament’s role and ensuring executive accountability during a period of political crisis. While the judgment undoubtedly pushed the boundaries of judicial intervention, it also addressed a significant threat to the functioning of the UK’s democratic system. Ultimately, the debate surrounding Miller (No 2) underscores the delicate balance between judicial and political authority in an unwritten constitution. The long-term implications of this decision remain uncertain, but it has undoubtedly reshaped discussions on the limits of executive power and the judiciary’s role in safeguarding constitutional principles. Further reflection and research are needed to determine whether this judgment will stand as a mistaken overreach or a necessary evolution of constitutional safeguards.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Finnis, J. (2019) The Unconstitutionality of the Supreme Court’s Prorogation Judgment. Policy Exchange.
- R (on the application of Miller) v The Prime Minister [2019] UKSC 41.
