Introduction
This essay critically evaluates the assertion by John Finnis that the UK Supreme Court’s judgment in R (Miller) v The Prime Minister [2019] UKSC 41 (Miller (No 2)) represents a “historic mistake” rather than a “victory for fundamental principle” (Finnis, 2019, p. 6). The case arose from the controversial prorogation of Parliament by Prime Minister Boris Johnson in 2019, a decision the Supreme Court deemed unlawful. This discussion will assess the judgment’s implications with reference to the constitutional principles of responsible government, parliamentary sovereignty, and the rule of law. While acknowledging Finnis’s critique of judicial overreach, the essay argues that the decision largely upholds core constitutional tenets, though not without contention. The analysis will explore the context of the judgment, evaluate competing perspectives, and critically examine its alignment with foundational principles of UK constitutional law.
Context of Miller (No 2) and Finnis’s Critique
The Miller (No 2) case emerged during a period of intense political turmoil surrounding Brexit. In August 2019, Prime Minister Boris Johnson advised the Queen to prorogue Parliament for five weeks, a move widely perceived as an attempt to limit parliamentary scrutiny over Brexit negotiations. The Supreme Court, in a unanimous decision, ruled that the prorogation was unlawful because it prevented Parliament from carrying out its constitutional functions without reasonable justification (R (Miller) v The Prime Minister, 2019). Finnis, a prominent constitutional scholar, argues that this judgment oversteps the judiciary’s role, asserting that prorogation is a political act within executive prerogative and thus beyond judicial review (Finnis, 2019, p. 6). He contends that the Court’s intervention undermines the separation of powers and encroaches on matters of political judgment, branding it a “historic mistake.”
Finnis’s critique raises pertinent questions about the balance of power in the UK’s unwritten constitution. However, this perspective must be weighed against the judgment’s stated aim to protect constitutional principles. The following sections will assess the decision’s compatibility with responsible government, parliamentary sovereignty, and the rule of law, engaging with both supportive and critical views to provide a balanced evaluation.
Responsible Government and Executive Accountability
Responsible government, a cornerstone of the UK constitution, requires the executive to remain accountable to Parliament. The Miller (No 2) judgment can be seen as a defence of this principle, as the Supreme Court intervened to prevent the executive from bypassing parliamentary oversight at a critical juncture. As Lord Pannick, a prominent legal commentator, argued, the decision reaffirmed that the executive cannot act in ways that “frustrate or prevent” Parliament’s ability to perform its constitutional role (Pannick, 2019). Indeed, by ruling the prorogation unlawful, the Court ensured that the government could not evade scrutiny on a matter as significant as Brexit.
Conversely, Finnis asserts that the judiciary exceeded its authority by adjudicating on a fundamentally political matter (Finnis, 2019, p. 6). He argues that prorogation, as an exercise of royal prerogative, falls within the executive’s discretion and should not be subject to judicial control. This viewpoint highlights a potential tension: while responsible government demands accountability, it also presupposes a degree of executive autonomy in political decision-making. Arguably, the Court’s intervention risks blurring the boundaries between judicial and political spheres, a concern echoed by some scholars who caution against “judicialisation” of political disputes (Ekins and Laws, 2020). Nevertheless, the absence of any reasonable justification for the lengthy prorogation—particularly at a time of national crisis—suggests that the Court’s decision was a necessary check on executive power to uphold responsible government.
Parliamentary Sovereignty: Protection or Undermining?
Parliamentary sovereignty, the principle that Parliament is the supreme legal authority in the UK, lies at the heart of the Miller (No 2) judgment. The Supreme Court explicitly framed its ruling as a means to protect Parliament’s ability to legislate and hold the executive to account (R (Miller) v The Prime Minister, 2019). By nullifying a prorogation that prevented parliamentary debate during a critical period, the Court arguably reinforced the centrality of Parliament in the constitutional order. This perspective aligns with traditional views of sovereignty articulated by Dicey, who emphasised that Parliament’s authority must not be unduly constrained by external forces, including the executive (Dicey, 1885).
However, Finnis challenges this interpretation, suggesting that the judgment undermines parliamentary sovereignty by allowing the judiciary to dictate the terms of parliamentary operation (Finnis, 2019, p. 6). He contends that the Court’s ruling effectively curtails the executive’s ability to manage parliamentary business—an area historically within political, rather than legal, control. Furthermore, critics like Ekins argue that the judiciary’s expansion of justiciability into prerogative powers risks creating a precedent where parliamentary processes are increasingly subject to judicial oversight, potentially limiting Parliament’s autonomy in the long term (Ekins and Laws, 2020). While this concern merits consideration, it seems overstated given the specific circumstances of Miller (No 2), where the prorogation’s effect was to stifle parliamentary function rather than facilitate it. Generally, the judgment appears to prioritise the protection of sovereignty over any perceived judicial overreach.
The Rule of Law: Judicial Overreach or Necessary Safeguard?
The rule of law, which demands that all actions, including those of the government, are subject to legal principles, is central to the Supreme Court’s reasoning in Miller (No 2). The Court held that prorogation must adhere to legal limits and cannot be used to undermine constitutional accountability (R (Miller) v The Prime Minister, 2019). This reflects a broad interpretation of the rule of law, encompassing not only adherence to statute but also the protection of constitutional norms. Scholars like Elliott have praised the judgment as a “vindication” of the rule of law, arguing that it prevents the executive from exploiting prerogative powers to evade scrutiny (Elliott, 2019).
Finnis, however, views this as judicial overreach, asserting that the Court invented legal constraints on prorogation where none previously existed (Finnis, 2019, p. 6). He argues that the rule of law does not extend to imposing judicial control over inherently political acts, especially in the absence of clear statutory limits. This critique raises a valid concern about the judiciary’s role in an uncodified constitution: without explicit legal boundaries, the Court’s decision could be seen as creating law rather than applying it. Yet, given the unprecedented nature of the prorogation and its clear impact on democratic accountability, the judgment can be defended as a necessary, if controversial, application of the rule of law to safeguard constitutional integrity.
Conclusion
In conclusion, the Supreme Court’s judgment in Miller (No 2) is a complex and contested decision that cannot be dismissed as a mere “historic mistake” as Finnis suggests (Finnis, 2019, p. 6). While his critique highlights legitimate concerns about judicial overreach and the potential erosion of executive and political autonomy, the ruling largely upholds the principles of responsible government, parliamentary sovereignty, and the rule of law. It served as a critical check on executive power during a period of constitutional crisis, ensuring that Parliament could fulfil its democratic role. Nevertheless, the decision also raises important questions about the judiciary’s expanding role in political matters, a trend that could have long-term implications for the balance of power in the UK constitution. Ultimately, while not without flaws, Miller (No 2) stands as a significant, albeit divisive, defence of fundamental constitutional principles rather than an outright error.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Ekins, R. and Laws, S. (2020) The Limits of Judicial Authority: A Response to Miller (No 2). Policy Exchange.
- Elliott, M. (2019) The Supreme Court’s Prorogation Judgment: A Vindication of the Rule of Law. Public Law, 2020(1), pp. 1-5.
- Finnis, J. (2019) The Unconstitutionality of the Supreme Court’s Prorogation Judgment. Policy Exchange.
- Pannick, D. (2019) Why the Supreme Court Was Right to Rule Against Boris Johnson. The Times, 25 September.
- R (Miller) v The Prime Minister [2019] UKSC 41.
