Introduction
This essay examines the legal implications and gaps in current UK law as highlighted by the landmark case of R (Miller) v The Prime Minister; Cherry and Others [2019] UKSC 41, commonly referred to as Miller/Cherry. Decided by the UK Supreme Court in September 2019, this case addressed the legality of the Prime Minister’s advice to the Queen to prorogue Parliament for an extended period during a critical phase of Brexit negotiations. The unanimous ruling declared the prorogation unlawful, raising significant questions about the boundaries of executive power, parliamentary sovereignty, and the justiciability of political actions. The purpose of this essay is to identify and critically analyse the gaps in law exposed by this case, particularly in relation to the regulation of prorogation, the role of constitutional conventions, and the mechanisms for enforcing accountability of executive actions. By exploring these areas, this essay aims to evaluate the limitations of the current legal framework and suggest areas where reform or clarification may be necessary.
The Scope of Executive Power in Prorogation
One of the central issues in Miller/Cherry was the extent to which the executive’s power to advise the monarch on prorogation could be subject to legal scrutiny. The Supreme Court held that the decision to prorogue Parliament was justiciable and that the Prime Minister’s advice to the Queen in this instance was unlawful because it prevented Parliament from fulfilling its constitutional role of scrutinising the executive (R (Miller) v The Prime Minister [2019] UKSC 41, para 50). However, a significant gap in the law remains: there are no clear statutory limits or guidelines defining the acceptable scope and duration of prorogation.
Historically, prorogation has been regarded as a prerogative power exercised by the Crown on the advice of the Prime Minister, and as such, it operates largely within the realm of political rather than legal constraints (Bradley and Ewing, 2018). The Miller/Cherry judgment established that such powers are not unlimited and must respect constitutional principles, yet the absence of codified rules creates uncertainty. For instance, what constitutes a ‘reasonable’ period for prorogation remains undefined in law. This lack of clarity arguably leaves room for future executives to exploit prerogative powers in ways that could undermine democratic accountability. While the Supreme Court’s ruling provides a precedent, it does not offer a comprehensive framework for regulating this power, highlighting a need for legislative intervention to set explicit boundaries.
The Role and Enforceability of Constitutional Conventions
Another gap exposed by Miller/Cherry relates to the role of constitutional conventions in regulating executive behaviour. Constitutional conventions are unwritten rules that guide the operation of the UK constitution, such as the expectation that the executive does not act to frustrate parliamentary sovereignty (Dicey, 1885). In this case, the court indirectly addressed the convention that prerogative powers should not be used to impede Parliament’s functions. However, the judgment did not explicitly enforce conventions as legally binding, maintaining their status as non-justiciable political norms (R (Miller) v The Prime Minister [2019] UKSC 41, para 55).
This raises a critical limitation in the law: while conventions are vital to the functioning of the UK’s uncodified constitution, their unenforceability in court leaves significant room for executive overreach. For example, there is no legal mechanism to compel a Prime Minister to adhere to the convention of providing reasons for prorogation, even if such actions appear to undermine democratic principles. Scholars like Bogdanor (2019) argue that codifying certain conventions or establishing clearer accountability mechanisms could address this gap, though others contend that the flexibility of conventions is a strength of the UK system. Nevertheless, the ambiguity surrounding their legal weight, as highlighted by Miller/Cherry, suggests a need for reform to ensure that fundamental constitutional norms are not easily disregarded.
Judicial Oversight and the Boundaries of Justiciability
The Miller/Cherry case also illuminated gaps concerning the judiciary’s role in overseeing executive actions and the boundaries of justiciability. Prior to this case, many prerogative powers were considered non-justiciable, meaning they were beyond the scope of judicial review due to their political nature (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). The Supreme Court’s decision to rule on the lawfulness of prorogation marked a significant expansion of judicial oversight, asserting that even politically sensitive matters could be subject to legal scrutiny if they infringed on constitutional principles (R (Miller) v The Prime Minister [2019] UKSC 41, para 35).
However, this development reveals a gap in the clarity of justiciability criteria. The court did not establish a definitive test for determining when prerogative powers become justiciable, leaving uncertainty about how far judicial intervention can extend into political decision-making. While this ambiguity allows for judicial flexibility, it also risks inconsistent application of the law in future cases. For instance, could other prerogative powers, such as the dissolution of Parliament (prior to the repeal of the Fixed-term Parliaments Act 2011), be similarly challenged? Without a clear legal framework, the judiciary’s role remains inconsistently defined, potentially undermining public confidence in the balance between judicial and political authority. Further legislative or judicial clarification on the limits of justiciability could help address this gap, ensuring a more predictable application of legal principles.
Accountability Mechanisms for Executive Actions
Finally, Miller/Cherry exposed a broader gap in the mechanisms for holding the executive accountable for the misuse of prerogative powers. While the Supreme Court’s ruling declared the prorogation unlawful, there were no direct personal consequences or sanctions for the Prime Minister. This raises questions about how executive accountability is enforced beyond judicial declarations of illegality. In many constitutional systems, mechanisms such as impeachment or statutory penalties exist to deter misuse of power, but the UK relies heavily on political accountability through Parliament and public opinion (Tomkins, 2020).
This reliance on political rather than legal sanctions is arguably insufficient, particularly in situations where the executive controls a parliamentary majority or public opinion is divided, as was the case during the Brexit crisis. Indeed, the lack of enforceable penalties may embolden future executives to test the boundaries of their powers, knowing that legal challenges, while significant, may not result in tangible consequences. Addressing this gap might require the introduction of statutory measures to impose sanctions or other forms of redress for the misuse of prerogative powers, thereby strengthening accountability.
Conclusion
In conclusion, the Miller/Cherry case has been instrumental in exposing critical gaps in UK constitutional law concerning the regulation of executive power, the enforceability of constitutional conventions, the boundaries of judicial oversight, and mechanisms for ensuring accountability. While the Supreme Court’s ruling marked a significant assertion of judicial authority and reaffirmed the importance of parliamentary sovereignty, it also highlighted the limitations of the current legal framework in providing clear guidelines and enforceable safeguards against executive overreach. The absence of statutory limits on prorogation, the ambiguous status of conventions, the uncertain scope of justiciability, and the lack of direct accountability mechanisms all undermine the robustness of the UK’s constitutional arrangements. Addressing these gaps may require legislative reforms to codify certain powers and conventions or to establish clearer accountability measures. Ultimately, the implications of Miller/Cherry extend beyond the immediate context of Brexit, prompting a broader reflection on how the UK constitution can adapt to ensure democratic principles are upheld in the face of evolving political challenges.
References
- Bogdanor, V. (2019) Beyond Brexit: Towards a British Constitution. I.B. Tauris.
- Bradley, A.W. and Ewing, K.D. (2018) Constitutional and Administrative Law. 17th edn. Pearson Education Limited.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- R (Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41.
- Tomkins, A. (2020) Public Law. Oxford University Press.
- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
