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. The Court ruled that the prorogation of Parliament by Prime Minister Boris Johnson in August 2019 was unlawful, as it frustrated Parliament’s ability to carry out its constitutional functions. Legal scholar John Finnis has critiqued this decision as a “historic mistake,” arguing it oversteps judicial bounds and undermines constitutional norms (Finnis, 2019). This essay critically discusses Finnis’s assertion by examining the judgment in light of the constitutional principles of responsible government, parliamentary sovereignty, and the rule of law. It argues that while the decision can be seen as a reaffirmation of fundamental principles, particularly parliamentary sovereignty and the rule of law, there are legitimate concerns regarding judicial overreach and the implications for responsible government. The analysis will explore both perspectives, evaluating the balance struck by the Supreme Court in this landmark case.
Responsible Government: Judicial Overreach or Necessary Oversight?
Responsible government, a cornerstone of the UK’s unwritten constitution, dictates that the executive must be accountable to Parliament, which in turn represents the electorate. Finnis (2019) contends that the Miller (No 2) judgment disrupts this principle by allowing the judiciary to interfere in a political act—prorogation—that is traditionally within the executive’s prerogative. He argues that the Supreme Court’s decision to deem the prorogation unlawful, on the grounds that it prevented Parliamentary scrutiny, effectively curtails the executive’s discretion in managing parliamentary business.
However, supporters of the judgment assert that it reinforces responsible government by ensuring the executive does not evade accountability. The Court held that the prorogation, lasting five weeks at a critical juncture in Brexit negotiations, was an abuse of power as it hindered Parliament’s ability to debate and scrutinise government policy (Lady Hale and Lord Reed, 2019). This view aligns with the principle that the executive must remain answerable to Parliament. Indeed, the unprecedented length and timing of the prorogation arguably necessitated judicial intervention to prevent a constitutional crisis. Nevertheless, Finnis’s concern about judicial encroachment remains pertinent, as it raises questions about the appropriate boundaries of judicial review in political matters. While the judgment may protect accountability, it risks blurring the separation of powers, a tension that remains unresolved.
Parliamentary Sovereignty: Safeguarding or Undermining?
Parliamentary sovereignty, the principle that Parliament is the supreme legal authority in the UK, is central to this debate. The Supreme Court in Miller (No 2) positioned itself as a defender of this doctrine by ruling that prorogation cannot be used to frustrate Parliament’s legislative and supervisory roles. Lady Hale explicitly stated 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 interpretation suggests that the judgment upholds parliamentary sovereignty by ensuring the executive cannot sidestep parliamentary oversight, especially during a period of significant national importance like Brexit.
Conversely, Finnis (2019) argues that the judgment undermines parliamentary sovereignty by allowing unelected judges to override a decision rooted in political convention rather than law. He asserts that prorogation is a procedural tool, historically within the Crown’s prerogative, and that the Court’s decision to intervene represents an overreach into matters that should be resolved politically, not judicially. This critique highlights a broader concern: if the judiciary can strike down executive actions on vague grounds such as “unreasonable effect,” it may inadvertently limit Parliament’s ability to govern through its elected representatives. While the Court’s intention was arguably to safeguard sovereignty, the precedent set by Miller (No 2) could invite further judicial challenges to political decisions, potentially constraining parliamentary autonomy in unforeseen ways.
The Rule of Law: Strengthening or Overstretching?
The rule of law, which requires that all actions must conform to legal principles and that no one is above the law, is another lens through which to evaluate Miller (No 2). The Supreme Court’s ruling can be seen as a victory for this principle, as it reaffirmed that even prerogative powers are subject to legal limits. The Court established that prorogation must have a “reasonable justification” and cannot be used to obstruct Parliament’s constitutional duties ([2019] UKSC 41, para 61). This decision echoes Dicey’s classic formulation of the rule of law, which insists on the accountability of government actions under ordinary law (Dicey, 1885). By subjecting executive action to judicial scrutiny, the judgment arguably strengthens the constitutional framework, ensuring that power is exercised transparently and lawfully.
Yet, Finnis (2019) counters that the judgment overextends the rule of law by introducing judicial standards into areas traditionally governed by political convention. He argues that the Court’s reliance on abstract notions of “constitutional principle” rather than clear legal authority risks creating uncertainty and undermines the predictability essential to the rule of law. This critique raises a valid concern: while the intention may have been to uphold legality, the lack of precise legal criteria for assessing prorogation could lead to inconsistent application in future cases. Therefore, although the decision reinforces executive accountability, it simultaneously introduces ambiguity, potentially weakening the clarity that the rule of law demands.
Conclusion
In conclusion, the UK Supreme Court’s judgment in Miller (No 2) represents a complex interplay of constitutional principles. On one hand, it can be viewed as a victory for fundamental principles, particularly in its defence of parliamentary sovereignty and the rule of law, by ensuring that the executive cannot use prorogation to evade scrutiny. On the other hand, Finnis’s critique of it as a “historic mistake” carries weight, as the decision raises concerns about judicial overreach and its implications for responsible government. The judgment risks blurring the separation of powers and introducing uncertainty into the constitutional framework, which may have long-term consequences for the balance between the judiciary, executive, and Parliament. Ultimately, while the Court’s intervention was arguably necessary given the exceptional circumstances, it highlights the need for clearer boundaries on judicial review of political acts. This case serves as a reminder of the delicate balance inherent in the UK’s unwritten constitution and the ongoing challenge of defining the judiciary’s role in upholding constitutional norms without overstepping into the political domain.
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 Prime Minister [2019] UKSC 41.
