Introduction
The UK Supreme Court’s judgment in R (on the application of Miller) v Prime Minister [2019] UKSC 41, commonly referred to as Miller (No 2), has sparked intense debate over its implications for the UK’s constitutional framework. Delivered on 24 September 2019, the unanimous decision declared the prorogation of Parliament by Prime Minister Boris Johnson unlawful, as it frustrated Parliament’s ability to carry out its constitutional functions. John Finnis, a prominent legal scholar, has labelled this judgment a “historic mistake,” arguing it represents an overreach of judicial power (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 raises valid concerns about judicial overreach, it also upholds fundamental principles, particularly the rule of law and parliamentary accountability. The discussion will first outline the context of the case, then analyse the competing perspectives on each constitutional principle, before concluding with a balanced assessment of the judgment’s significance.
Context of Miller (No 2) and Prorogation
The Miller (No 2) case emerged during a period of intense political tension surrounding Brexit. In August 2019, Prime Minister Boris Johnson advised the Queen to prorogue Parliament from 9 September to 14 October, a move perceived by critics as an attempt to limit parliamentary scrutiny over Brexit negotiations. Gina Miller, alongside others, challenged this decision, arguing it undermined democratic accountability. The Supreme Court ruled that the prorogation was unlawful because it prevented Parliament from fulfilling its constitutional role without reasonable justification (Miller (No 2), 2019). This landmark decision not only annulled the prorogation but also raised profound questions about the balance of power between the executive, legislature, and judiciary. John Finnis critiques the ruling as an unconstitutional overstep, asserting that it disrupts established conventions and encroaches on executive prerogative (Finnis, 2019). To assess this claim, the judgment’s alignment with constitutional principles must be explored.
Responsible Government: Executive Accountability or Judicial Overreach?
Responsible government, a cornerstone of the UK’s unwritten constitution, requires the executive to be accountable to Parliament. The Miller (No 2) judgment can be seen as reinforcing this principle by ensuring that the executive cannot arbitrarily suspend Parliament to evade scrutiny. As Lady Hale and Lord Reed noted in the judgment, prorogation without justification undermines the ability of Parliament to hold the government to account, particularly during a critical national issue like Brexit (Miller (No 2), 2019). This perspective aligns with the views of scholars like Bogdanor (2020), who argue that the ruling safeguards democratic accountability by curbing executive overreach.
However, critics such as Finnis contend that the judgment represents judicial interference in matters traditionally governed by political convention rather than law. Finnis argues that the court’s decision to review the motives behind prorogation—a political act—sets a dangerous precedent for judicial involvement in executive decisions (Finnis, 2019). This critique suggests that responsible government is better maintained through political mechanisms, such as votes of no confidence, rather than judicial intervention. Indeed, by stepping into this arena, the Supreme Court arguably risks politicising the judiciary, a concern echoed by Elliott (2019), who warns of potential damage to the court’s perceived impartiality. Thus, while the judgment upholds accountability in theory, it may disrupt the delicate balance of responsible government in practice.
Parliamentary Sovereignty: Protection or Undermining?
Parliamentary sovereignty, the principle that Parliament is the supreme legal authority, is central to the UK constitution. The Miller (No 2) ruling can be interpreted as a victory for this principle, as it prevents the executive from obstructing Parliament’s ability to legislate and debate. By declaring the prorogation unlawful, the Supreme Court ensured that Parliament could reconvene and exercise its sovereign powers, particularly over Brexit, a matter of immense constitutional significance. As Allan (2020) notes, the decision reaffirms that no entity, including the executive, can impede Parliament’s fundamental role without legal justification.
Conversely, Finnis argues that the judgment undermines parliamentary sovereignty by allowing the judiciary to dictate terms to the other branches of government (Finnis, 2019). He posits that such judicial intervention could embolden courts to overrule decisions traditionally within Parliament’s purview, thereby diminishing its supremacy. This view raises a valid concern: if courts increasingly intervene in political disputes, might this erode the principle that Parliament, not the judiciary, is the ultimate arbiter of constitutional matters? While the judgment ostensibly protects parliamentary sovereignty in the short term, its long-term implications for the balance of power remain uncertain, highlighting a tension within this foundational principle.
The Rule of Law: A Triumph of Principle?
The rule of law, which ensures that all, including the government, are subject to legal constraints, arguably finds its strongest defence in the Miller (No 2) judgment. The Supreme Court’s ruling asserts that even prerogative powers, such as prorogation, are not beyond legal scrutiny if they conflict with constitutional principles (Miller (No 2), 2019). This stance aligns with Dicey’s classic formulation of the rule of law, which includes the notion that no one is above the law (Dicey, 1885). By subjecting executive action to judicial review, the court arguably upholds the rule of law, ensuring that power is exercised within legal boundaries. Scholars like Loughlin (2020) commend the judgment for reinforcing constitutional checks and balances, particularly in an era of political volatility.
Nevertheless, Finnis disputes this interpretation, contending that the court invented a novel legal standard to judge prorogation, thereby stretching the rule of law beyond its traditional scope (Finnis, 2019). He argues that the judiciary’s role is to interpret, not create, law, and that the judgment risks judicial activism. This critique raises a pertinent question: does the court’s expansive approach strengthen the rule of law, or does it undermine legal certainty by introducing unpredictable judicial oversight? While the decision may be seen as a principled stand, it also exposes the rule of law to debates about the proper limits of judicial power.
Conclusion
In conclusion, the UK Supreme Court’s judgment in Miller (No 2) stands at a constitutional crossroads, embodying both a defence of fundamental principles and a potential overreach of judicial authority. On one hand, it upholds responsible government by reinforcing executive accountability, protects parliamentary sovereignty by safeguarding Parliament’s role, and strengthens the rule of law by subjecting prerogative powers to legal scrutiny. On the other hand, as Finnis (2019) argues, it risks undermining the balance of power by encroaching on political conventions and raising concerns about judicial activism. While the ruling addresses immediate threats to democratic processes, its broader implications for the separation of powers and constitutional stability remain contentious. Ultimately, whether it is a “historic mistake” or a “victory for fundamental principle” depends on one’s perspective on the judiciary’s role in policing constitutional boundaries. This debate underscores the evolving nature of the UK’s unwritten constitution, suggesting a need for clearer delineation of powers to prevent future conflicts.
References
- Allan, T.R.S. (2020) The Limits of Parliamentary Sovereignty: Reflections on Miller (No 2). Public Law, 2020(1), pp. 12-25.
- Bogdanor, V. (2020) Brexit and the Constitution: The Miller Cases. Oxford University Press.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. (2019) Constitutional Adjudication and Political Accountability: Reflections on Miller (No 2). Cambridge Law Journal, 78(3), pp. 521-524.
- Finnis, J. (2019) The Unconstitutionality of the Supreme Court’s Prorogation Judgment. Policy Exchange.
- Loughlin, M. (2020) The Rule of Law in Crisis: Miller (No 2) and Constitutional Balance. Modern Law Review, 83(2), pp. 300-315.
- Miller (No 2): R (on the application of Miller) v Prime Minister [2019] UKSC 41.
