?No Politics Please, We're British': R (Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41
| Date | 01 January 2020 |
| Author |
140
‘No Politics Please, We’re British’: R (Miller) v
e Prime Minister; Cherry and Others v Advocate
General for Scotland [2019] UKSC 41
JAMES C. FISHER*
e United Kingdom electorate’s decision to leave the European Union has
precipitated apparently interminable political conict and incendiary debates
about the relationship between popular and Parliamentary sovereignty. is has
problematised the very meaning of democracy in twenty-rst century Britain and has
subjected the country’s political institutions and constitutional practices to searching
scrutiny. Twice so far, the Supreme Court has been called on to resolve hostility
between Government and Parliament. Its rst intervention – the 2017 decision in
Miller v Secretary of State for Exiting the European Union (‘Miller I ’) – seemed ‘the
constitutional case of the century’,1 destined to stand as ‘a high point of the protection
of the power of the legislature over the executive’.2 However, last year’s joined appeal of
R (Miller) v e Prime Minister & Cherry v Advocate General for Scotland (‘Miller II ’)
is a still more signicant intervention.3 It is also, this note argues, deeply unsatisfactory
in terms of legal reasoning and constitutional vision. Particularly, this note rejects
widespread attempts to characterise the decision as an apolitical, technical application
of settled rules of law. Despite the insistence of prominent British jurists, there is
nowhere to hide from politics – the courts least of all.
I. e decision
e context
e events preceding Miller II are familiar on both sides of the Irish Sea and can
be succinctly summarised. In 2016, a majority of votes cast in a UK referendum
favoured departure from the EU. A 2017 general election returned the Conservative
party to power, albeit now as a minority government supported by the Democratic
Unionist Party. Both the Tory and Labour Parties had campaigned on a platform
* Associate Professor of Law, Sophia University, Tokyo, Japan. I am grateful to the three anonymous
reviewers for their instructive comments. Remaining errors are my own.
1 [2017] UKSC 5, [2018] AC 61. is epithet was widely quoted (generally without attribution) in
the wake of the decision. e rst usage I can locate is by the UCL Constitution Unit
ac.uk/constitution-unit/events/2017/jan/brexit-supreme-court> accessed 9 June 2020.
2 Alison Young, ‘Will Brexit change the UK constitution?’ (Hansard Society, 7 August 2018)
www.hansardsociety.org.uk/blog/will-brexit-change-the-uk-constitution> accessed 9 June 2020.
No Politics Please, We’re British 141
of delity to the referendum result,4 but the majority of parliamentarians, on both
Government and Opposition benches, had supported remaining in the EU during
the referendum campaign,5 and were opposed to the prospect of ‘crashing out’ of the
Union without a satisfactory withdrawal agreement. For this reason, Parliament had
legislated to require Parliamentary approval of any withdrawal agreement concluded
between the UK Government and the EU.6 e House of Commons went on to
reject each of the three agreements presented for consideration by the Government
of Prime Minister eresa May. e Government of her successor, Boris Johnson,
was committed to a timely departure from the EU with or without a mutually
satisfactory agreement,7 believing that this prospect would incentivise concessions
from the European Council. In this context, Prime Minister Johnson sought to
prorogue Parliament for approximately ve weeks from early September 2019
until 14 October, shortly before the UK’s scheduled departure date of 31 October.
Parliamentarians and jurists sought judicial intervention in both the Scottish courts
and those of England and Wales, arguing that the prorogation was unlawful. is
culminated in a joined appeal in the Supreme Court of the United Kingdom.
In its judgment, the court insisted that it was not considering the merits of Brexit,8
but only the legal limits of the Crown’s power to prorogue Parliament. It set out to
answer four questions: (i) was the lawfulness of the Prime Minister’s advice to the
ueen that Parliament be prorogued justiciable; (ii) if so, what was the standard for
assessing its legality; (iii) was this specic prorogation lawful under that standard,
and (iv) if not, what remedy was appropriate?9
e justiciability of prorogation decisions
e High Court of England and Wales had denied justiciability since these issues
‘were inherently political in nature, and there were no legal standards against which
to judge their legitimacy’.10 Conversely, the unanimous Supreme Court was ‘rmly
of the opinion’ that the legality of Prime Ministerial advice in favour of prorogation
was justiciable.11 For the court, when determining the existence and scope of a
prerogative power, there can be no question of ‘non-justiciability’.12 Because
these are ‘by denition questions of law’,13 answering them cannot endanger the
4 Labour Manifesto (2019) 89–92; Conservative and Unionist Party Manifesto (2019) 5.
5 ‘EU vote: Where the cabinet and other MPs stand’ (BBC News, 22 June 2016)
co.uk/news/uk-politics-eu-referendum-35616946> accessed 9 June 2020.
6 European Union (Withdrawal) Act 2018, s 13.
7 Conservative Manifesto (n 4).
8 Miller II (n 3) [1].
9 ibid [27]. Limitations of space exclude from this note the devolution aspects of the case.
10 R (Miller) v e Prime Minister [2019] EWHC 2381 (QB): cited in Miller II (n 3) [29].
11 Miller II (n 3) [52].
12 ibid [36].
13 ibid.
142 .
separation of powers.14 Concerns about justiciability only arise when deciding
whether the use of a power ‘within its legal limits is challengeable … on the basis
of … the recognised grounds of judicial review’.15 e court held that this dispute
pertained to the rst enquiry – the legal limits on the Crown’s power to prorogue
Parliament – so no justiciability issue arose.
e legal scope of the prerogative power to prorogue Parliament
e court reasoned that all prerogative powers are ‘limited by statute and the
common law, including … constitutional principles with which … [they] would
otherwise conict’.16 is latter category included (i) the sovereignty of the
UK parliament, and (ii) executive accountability to that institution. e court
emphasised the specic consequences of prorogation, characterising it as a period
in which the above principles were particularly threatened. It distinguished
prorogation from (i) the less disruptive parliamentary recess,17 where aside from
physical sittings of the Houses, ‘Parliamentary business can otherwise continue
a s u s u al ’, 18 and from (ii) dissolution, where ‘[t]he Government remains in oce
but there are conventional constraints on what it can do’.19 For the court, because
prorogation keeps the Government functionally in place but dramatically reduces
Parliament’s capacity to hold it to account, it would undermine Parliament’s
constitutional supremacy if the prorogation power were unrestricted. Meaningful
limits on the power to prorogue must therefore exist within the law, ‘so as to make it
compatible with the principle of Parliamentary sovereignty’.20 e court described
those limits concretely in the following formula: prorogation will be ‘unlawful if …
[it] has the eect of frustrating or preventing, without reasonable justication, the
ability of Parliament to carry out its constitutional functions as a legislature and as
the body responsible for the supervision of the executive’.21
e compliance of this specic prorogation decision with the power’s legal limits
e court declared that the prorogation frustrated Parliament’s constitutional role,22
obliging the Prime Minister to show ‘a reasonable justication for taking action
which had such an extreme eect upon the fundamentals of our democracy’.23 is,
14 ibid [34].
15 ibid [35].
16 ibid [49].
17 ibid [56].
18 ibid [6].
19 ibid [4].
20 ibid [45].
21 ibid [50].
22 ibid [56].
23 ibid [58].
No Politics Please, We’re British 143
the court insisted, is ‘not concerned with the Prime Minister’s motive in doing what
he did’ but with ‘whether there was a reason for him to do it’.24 Courts should show
deference when deciding this,25 since the issue ‘falls within the area of responsibility
of the Prime Minister’ and ‘will include matters of political judgment’,26 but
ultimately it is for the court ‘to determine whether the Prime Minister has remained
within the legal limits of the power’.27
Deference notwithstanding, the court ruled that the Prime Minister had failed
to justify the decision to prorogue in this context and for this period. While the
Government’s documentary record rationalised the case for a ueen’s Speech’s and
new Parliamentary session, nothing explained ‘why so long was needed to prepare
for it’.28 While ‘[s]uch an interruption … might not matter in some circumstances
… the circumstances here were … quite exceptional’, in light of the ‘fundamental
change [that] was due to take place in the Constitution of the United Kingdom’.29
e Prime Minister’s advice that the ueen prorogue Parliament was therefore
‘outside the powers’ of his oce, such that the prorogation was ‘unlawful, null and
of no eect’.30 Consequently, ‘Parliament has not been prorogued … [and] [t]here
is no need for Parliament to be recalled’.31
II. Critique: authority and analysis
Law, principles, and conventions
e court held that ‘the power [to prorogue Parliament] is recognised by the
common law, and has to be compatible with … [its] fundamental principles’,32
particularly ‘the principle of Parliamentary sovereignty’.33 Such principles, the court
declared, are fully legal,34 alike in nature and distinct only in source from ‘other
legal principles’, a category which includes not only precedent and statute, but also
‘conventions and practice’.35
24 ibid.
25 ibid [51].
26 ibid.
27 ibid.
28 ibid [60].
29 ibid [57].
30 ibid [69].
31 ibid [70]. e Government had invoked the guarantee against judicial challenge to ‘Proceedings
in Parlyament’ contained in Article 9 of the Bill of Rights 1869. e court rejected this (at [68])
on the basis that prorogation ‘is not a decision of either House of Parliament … [but] something
which is imposed upon them from outside.’ Limitations of space prevent further engagement with
this interesting question.
32 Miller II (n 3) [38].
33 ibid [41].
34 ibid [39].
35 ibid.
144 .
e inclusion of conventions demands attention since, only one ‘landmark’ case ago
in Miller I, the Supreme Court reiterated the orthodoxy that political conventions
are not legal norms amenable to enforcement by courts,36 even if their existence as
political conventions has been referenced in statute, which alone is insucient to
transmute a political convention into a rule of law.37 Mark Elliott has suggested that
the two cases are consistent, because the court in Miller II ‘does not legally enforce
the constitutional convention of executive accountability to Parliament’, but merely
‘take[s] legal cognisance of the … constitutional reason or principle that underpins
[it]’.38 It is, however, unclear what practical dierence exists between enforcing a
convention of accountability and enforcing the constitutional principle that informs
and justies it. Do not all conventions express some consummate ideal, value or
‘principle’ concerning the proper operation of public aairs? In the end, the
court is ‘do[ing] indirectly what it could not do directly’,39 eectively collapsing
the distinction between political and legal constraints on executive action.40 e
covertness of that development meant that no guidance was oered on questions
which become crucial if courts are readily to embrace political values as ‘legal’. From
where do they derive their status as law? What criteria authoritatively distinguish
legal constitutional principles from non-legal constitutional principles and/or
conventions? Or does no such distinction exist?
e premature death of non-justiciability
Notwithstanding the incremental expansion of judicial oversight over the use
of prerogative powers, it has remained orthodoxy that judicial review of the
prerogative is conned in some contexts to conrmation that the relevant power
exists and has not been exceeded, excluding scrutiny of how the power has been
exercised. e power to prorogue Parliament has traditionally been excluded from
that latter kind of review.41 Yet in Miller II the Supreme Court declared prorogation
illegal by reference to the (inadequate) justications oered in support of the
decision in question. It did so by recategorising considerations conventionally
understood as concerned with the exercise of a legal power into part of the test for
36 Miller I (n 1) [138]–[148].
37 Miller I (n 1) [148], referencing the Scotland Act 1998, s 28(8).
38 Mark Elliott, ‘e Supreme Court’s judgment in Cherry/Miller (No 2): A new approach
to constitutional adjudication?’ (Public Law for Everyone, 24 September 2019)
publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-
new-approach-to-constitutional-adjudication/> accessed 9 June 2020.
39 Steven Spadijer, ‘Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy’ (UK Constitutional
Law Association Blog, 7 October 2019)
spadijer-miller-no-2-orthodoxy-as-hersey-hersey-as-orthodoxy/> accessed 9 June 2020.
40 While courts may look to conventions to interpret the meaning of law (see e.g. Attorney-General
v Jonathan Cape Ltd [1976] QB 752) using conventions to illuminate the meaning of statutes
(which are legal irrespective of the convention’s existence) falls far short of the court’s approach in
Miller II.
41 Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, 418 (‘GCHQ’).
No Politics Please, We’re British 145
the legal extent of the power. In this way ‘the court could claim to remain within
‘well established’ territory,42 because its decision was ‘concerned [not] with the
mode of exercise of the prerogative power within its lawful limits … [but with] the
limits of the power’.43 But its test for ‘the limits of the power’ expanded to absorb
the considerations that prior authority places outside the judicial purview. Again,
the court procures obliquely an eect which could be achieved directly only by
open departure from prior authority.
Its decision has important implications. Collapsing the previously distinct
stages of review defangs the ‘non-justiciability’ enquiry, which now has doubtful
practical signicance. e court did not expressly disavow Lord Roskill’s famous
‘excluded categories’,44 but it nonetheless subjected a conventional member of that
group – i.e. prorogation – to review, suggesting the list retains little signicance.
Mark Elliott ‘inferred from the judgment … that this approach is only available …
when a fundamental constitutional principle (or right) is in play’,45 but nothing
in the court’s ratio actually necessitates such a limitation. e rationality of, and
motivation for, recourse to any prerogative power could be reframed in the same
way, circumventing any justiciability concerns, and the court gave no guidance
about the wider application of its approach. e court’s logic can furnish review
of any of the prerogative powers hitherto enjoyed ‘at pleasure’ of the Crown with
respect to Parliament. For instance, has the Prime Minister lost the legal power to
appoint or dismiss Ministers for personal or party-political advantage? Does the
Crown in fact lack any legal power to declare war without an ‘objectively’ rational
casus belli?
Classically, the justiciability limitation asks not just whether it is possible for
courts to scrutinise executive behaviour – i.e. whether criteria exist against which
it could be judged – but whether it is appropriate for them to do so. Part of that
normative question looks to the role of democratic forces in both empowering
and controlling the executive, and what this means for the role of courts. In
sidestepping the justiciability objection in this cursory and formalistic way, the
court failed to engage with these vital concerns. e judiciary should be expected
to grapple explicitly with those hard questions if the eect of its decision is to
intensify the law’s control over the democratic organs of state. e court simply
declared that the presence of political accountability does not oust the court’s role
in enforcing the legality of prerogative powers’ deployment,46 approving many
familiar dicta to that eect. Prominent were Lord Lloyd’s opinion that ‘ministerial
responsibility is no substitute for judicial review’,47 and Lord Diplock’s sentiments
42 Miller II (n 3) [52].
43 ibid.
44 GCHQ (n 41).
45 Elliott (n 38).
46 Miller II (n 3) [33].
47 R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513,
572–573 (‘Fire Brigades Union’).
146 .
that ministers ‘are accountable to Parliament for the way in which they carry out
their functions … [and] for what they do so far as regards eciency and policy
… [but] they are responsible to a Court of Justice for the lawfulness of what they
do’. 48 But such statements alone do not determine the respective scope of legal
and political constraints on ministerial action. e court presented the anodyne
fact that ‘courts have a duty to give eect to the law, irrespective of the minister’s
political accountability’,49 as if it forestalled any objections about what those limits
actually are (or ought to be). e court, in short, largely begged the question.
Taken seriously, these important dicta represent an invitation to a dicult and
obviously normative conversation about the limits of the law in civic life, not the
circumvention of such a conversation.
III. Critique: law and politics
Few reasonable observers doubt that prorogation was motivated by the Prime
Minister’s desire ‘to ease Britain’s withdrawal from the [EU],50 by ‘shorten[ing]
the time available for parliamentary scrutiny of the Brexit process’.51 Even
detractors of Miller II have characterised the Prime Minister’s conduct as ‘a
desperate and dubious manoeuvre’,52 ‘clumsy and inappropriate’ and ‘an abuse of
convention’.53 e Inner House of the Court of Session had ruled directly on the
basis of improper purposes. It held that the Prime Minister’s advice was improperly
motivated by the goal of impeding Parliamentary scrutiny during the closing days
of the UK’s EU membership.54 e Supreme Court, in contrast, described their
decision as concerned not with motives, but with ‘the eects of the prorogation’.55
Nonetheless there are signs of judicial sensitivity to the Prime Minister’s subjective
motivations.56 ‘[M]ost tellingly of all’, the court recorded, the pre-prorogation paper
48 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small
Businesses Ltd [1982] AC 617, 644.
49 Miller II (n 3) [33].
50 Danny Nicol, ‘Supreme Court Against the People’ (UK Constitutional Law Association Blog,
25September 2019) .org/2019/09/25/danny-nicol-supreme-court-
against-the-people> accessed 9 June 2020.
51 Stephen Tierney, ‘Prorogation and the Courts: A uestion of Sovereignty’ (UK Constitutional
Law Blog, 17 September 2019)
prorogation-and-the-courts-a-question-of-sovereignty/> accessed 9 June 2020.
52 Peter Ramsay, ‘A Delinquent Parliament Begets the Rule of Lawyers’ (e Full Brexit, 27 September
2019) accessed 9 June 2020.
53 ibid. For similar conclusions from the decision’s supporters, see Nick Barber, ‘Playing Hardball
with the ueen’ (Oxford Human Rights Hub, 31 August 2019)
playing-hardball-with-the-queen/> accessed 9 June 2020.
54 [2019] CSIH 49.
55 Miller II (n 3) [54].
56 e judgment recalls the documentary evidence that cast doubt on the Prime Minister’s motives
(at [17]–[20]).
No Politics Please, We’re British 147
trail ‘does not address the competing merits of going into recess and prorogation’.57
To describe this omission as ‘telling’ may imply that suspicions about motive
inuenced the court’s decision even if the stated ratio involved only ex post facto
scrutiny of the prorogation’s eects. Compared to the directness of the Scottish
decision, the Supreme Court’s approach seems over-engineered, as somewhat
tacitly admitted even by its supporters.58 It suggests a judicial determination to
reverse a constitutional aront whilst remaining (i) formally consistent with UK
public law’s jurisprudence on non-justiciability, and (ii) maximally distant from
the political tensions that bedevil Brexit. A desire to depoliticise is understandable
given the tabloid invective that accompanied the Miller I decision. Nevertheless,
privileging a formalistic and counter-intuitive ratio for presentational reasons
undermines the laudatory claims that Miller II vindicates the law’s independence
from political pressures.
Apoliticality as a hopeless cause
In the end, the court failed to prevent assertions of a political agenda. One academic
detractor claimed the judges – who ‘have the same class interest in continued
EU membership as do Britain’s upper-middle class generally’ – had behaved ‘in
a partisan fashion as … the legal wing of Remain’.59 Specically, it was accused of
acting to protect ‘the EU … gravy train of career opportunities and pleasurable
gatherings for judges, practitioners and academic lawyers alike’,60 and the
‘intoxicating’ increase in domestic judicial power that accompanies membership of
the EU legal order.61
Setting aside the question of whether EU law actually has the eect of which the
author complains,62 this direction of critique is highly problematic. It is tantamount
to an allegation of judicial corruption, evoking an image of judges deciding disputes
cynically to advance their own personal and class interests. Critical scholars of
law have worked to expose the interests and ideologies structurally privileged by
law and adjudication in bourgeois states, but presenting the senior judiciary as
Machiavels thwarting the popular will to line their own pockets is an analytical
57 Miller II (n 3) [60].
58 Nick Barber, ‘Prorogation, Prerogative, and the Supreme Court’ (Harvard Law Review Blog,
3October 2019) he-supreme-
court/> accessed 9 June 2020.
59 Nicol (n 50).
60 ibid.
61 ibid, citing Joseph Weiler, e Constitution of Europe (Cambridge University Press 1999) 197.
62 e constitutional jurisprudence of the EU requires domestic courts to disapply domestic
law inconsistent with directly applicable EU law: Case 26/62 Van Gend en Loos v Nederlandse
Administratie der Belastingen [1963] ECR 1; Case 6/64 Costa v ENEL [1964] ECR 595. However,
while national legislatures are thus disempowered, this does not correspondingly empower national
courts to decide policy questions previously determined by those legislatures.
148 .
dead end. It obscures the crucial problem which makes the critical discipline
necessary – namely that agents of formal law are genuinely invested in the vision
of law as a site of structured normative argument loyal to its own articial reason
and (at least substantially) insulated from rst-order political questions and the
competition between social interests. e more promising critique accepts that,
while the law will ultimately ‘correspond to the general economic situation and be
its expression’,63 operating ‘to structure and legitimate social relations’,64 the dening
characteristic of law is its internal ‘coherent expression’.65 is is what complicates
and obscures the ways in which social relations hyper-condition doctrinal law and
adjudication. Analyses of law’s foundational politicality are constructive only when
they grapple with law’s emic apoliticality – the fact that eminent jurists are able to
insist in good faith that ‘[c]ourts do not make political judgments’,66 and that the
Brexit cases involve answering ‘solely a lega l question about the extent of executive
authority’.67 ese claims must, however, be subjected to scrutiny. Critical scholars
rightly responded to Miller I by explaining that its resolution could never be ‘solely
a legal question’ devoid of ‘political judgments’ because – like much of public law –
it required judges to delineate between the respective territories of law and politics.
Dogmatically incanting legal formalism therefore ‘merely obfuscates the essentially
normative and political questions at the basis of the legal debate’.68 e same, it can
be shown, is amply true of Miller II.
Sovereignty is what you make it?
e court’s ruling – that the Government could not impede Parliament’s capacity
to legislate and scrutinise the executive without justication – was welcomed as
‘a sensible and warranted inference’, which revealed ‘penumbral implications that
can themselves properly be thought of as part of the principle of parliamentary
sovereignty’.69 But there are reasons to doubt descriptions of Miller II as ‘rooted in
63 Frederick Engels’ letter to Conrad Schmidt (27 October 1890), in Marx & Engels Collected Works,
Volume 49 (Lawrence & Wishart 2010) 57.
64 Paul O’Connell, ‘Law, Marxism and Method’ (2018) 16(2) tripleC: Communication, Capitalism
& Critique 647.
65 Engels (n 63). See further Paul O’Connell, ‘Engels, Law and Dialectics’ (Legal Form, 12 December
2017)
9 June 2020.
66 Miller I (n 1) [276] (Lord Hughes).
67 Mark Elliott and Hayley Hooper, ‘Critical reections on the High Court’s judgment in R (Miller)
v Secretary of State for Exiting the European Union’ (UK Constitutional Law Association Blog, 7
November 2016) allaw.org/2016/11/07/mark-elliot-and-hayley-hooper-
critical-reections-on-the-high-courts-judgment-in-r-miller-v-secretary-of-state-for-exiting-the-
european-union> accessed 9 June 2020.
68 Paul O’Connell and Nimer Sultany, ‘Miller and the Politics of the Judiciary’ (UK Constitutional
Law Association Blog, 10 November 2016)
oconnell-and-nimer-sultany-miller-and-the-politics-of-the-judiciary> accessed 9 June 2020.
69 Elliott (n 38).
No Politics Please, We’re British 149
well-established constitutional principles’.70 e court drew support from leading
cases which have constrained the Royal prerogative by reference to the supremacy
of Parliament, beginning with Coke CJ’s declaration in the Case of Proclamations
that ‘the King hath no prerogative, but that which the law of the land allows him’,71
and incorporating modern jurisprudence such as Attorney General v De Keyser’s
Royal Hotel and Fire Brigades Union.72 However, the essence of these cases –
Miller I included – is the vindication of the Crown-in-Parliament as the ultimate
determiner of the primary and secondary legal rules operative in the UK against a
series of explicitly or implicitly rivalrous claims. Such claims included suggestions
that the Royal prerogative can be employed ‘to evade rules or procedures which
had been clearly laid down in statute to cover the situation in question’.73 is is
categorically dierent from declaring the Crown unable to impede (without
‘justication’) the daily business of esh-and-blood Parliamentarians.
Mark Elliott has applauded the court’s expanded characterisation of Parliamentary
sovereignty, which he argued ‘is not an arid, technical rule about the hierarchical
legal status of legislation enacted by Parliament … [but] a fundamental principle
that determines and reects the nature of constitutional democracy in the UK’.74
But the former, limited account of Parliamentary sovereignty is hardly ‘arid’. On
the contrary, this is the understanding of sovereignty which rationalises its co-
existence with the Crown’s (legally) unfettered prerogative of prorogation,75 and
in doing so expresses a venerable – albeit now unfashionable – normative vision
of British democracy. On this view, the ‘sovereignty’ of the Crown-in-Parliament
describes the relationship between that tricameral legislature and all other legal and
political actors, including the three individual entities which combine to constitute
that legislature. e legislative whole is sovereign irrespective of the diering
powers and duties of its separate parts. Sovereignty is therefore consistent with the
ancient fact that one of the parts (namely the Crown) unilaterally determines the
conditions under which the other two assemble, unless the three have regulated the
matter collectively through an Act of the Crown-in-Parliament. Since the Crown
now has a functionally negligible say in the matter,76 this model gives the Houses
70 ibid.
71 12 Co Rep 74, 77 ER 1352.
72 [1920] AC 508; Fire Brigades Union (n 47).
73 David Feldman, ‘Pulling a Trigger or Starting a Journey? Brexit in the Supreme Court’ (2017)
76(2) CLJ 217, 221.
74 Elliott (n 38).
75 On this point, see for example Finch CJCP’s statement in R v Hampden [1637] State Trials III
1090 that ‘Parliament without the king cannot make a law, nor without his royal assent declare
it; he is not bound to call it but when he pleaseth, nor to continue it but at his pleasure’, and
other examples of the prerogative’s endurance in constitutional discourse of the Eighteenth and
Nineteenth Centuries (John Barrow, A New and Impartial History of England, Volume 7 (Coote
1763) 197; William Rawley, e Work of Francis Bacon (Longmans 1859) 776). See also FW
Maitland, e Constitutional History of England (Cambridge University Press 1908) 195.
76 e UK’s foremost political convention obstructs the withholding of Royal Assent (but see
R(Barclay) v Lord Chancellor [2010] 1 AC 464, 543).
150 .
of Commons and Lords ultimate power to decide the internal dynamics of the
three chambers by legislation.77 While they have overturned the default position
of Crown discretion in many areas related to the functioning of Parliament, they
have never so acted to restrict the prerogative of prorogation, which has oen
been deployed by Governments to reset unmanageably fractious relations within
or between the Houses, or indeed to prevent the passage of legislation contrary to
Government policy, without previously being understood as inconsistent with the
sovereignty of Parliament.
Of course, it is open to debate whether the UK’s constitutional heritage in this
respect is appropriate in the twenty-rst century. But to suggest that Parliamentary
sovereignty necessarily precludes the Crown’s legally unlimited power to prorogue
Parliament is reductionist and inaccurate. It obscures the court’s selective curation
of a particular constitutional narrative and its exclusion of others. Among the most
curious features of the Miller II judgment is that not one member of the eleven-
Justice Court dissented on this further departure from the UK’s traditional political
constitution. It is somewhat surprising that Lord Reed acted as the judgment’s
co-author alongside Lady Hale, despite having dissented so powerfully and
compellingly in Miller I in defence of the Crown’s power unilaterally to instigate the
UK’s withdrawal from the EU. at dissent involved not only a careful, technical
analysis of the relationship between UK and EU law and the eect of the European
Communities Act 1972,78 but also a normative defence of the UK’s heritage of
political constitutionalism. He emphasised the importance of democratic, rather
than judicial, controls over the executive, and that ‘the legalisation of political
issues is not always constitutionally appropriate’.79
e presence of such a dissent in Miller I exposed that the majority’s account of
the British constitution was only one out of many narratives extractable from the
complex nebula of law, convention and political history that informs the operation
of the modern British state. e absence of a similar dissenting voice in Miller II is
unfortunate, particularly since the judgment oversimplies and obscures important
parts of the constitutional landscape. For instance, the Government had submitted
that the UK’s wider constitutional arrangements meant that Parliament could
never be prorogued for very long, and therefore that it was wrong to conate
a legally unlimited prorogation power with the prospect of anti-democratic
executive rule. e court responded simply that such ‘practical constraints oer
scant reassurance’,80 without explaining why Parliament’s ne cessity in (for example)
approving the national budget and the standing army, and implementing the
Government’s le gislative programme, were so immaterial. e court also discounted
Parliament’s ability to prevent or circumscribe prorogation. However, Parliament
77 Potentially the Commons alone, by operation of the Parliament Acts 1911 and 1949.
78 Miller I (n 1) [224]–[225].
79 ibid [240]
80 Miller II (n 3) [43].
No Politics Please, We’re British 151
continues to sit between the announcement of prorogation and the prorogation
itself and remains able to legislate – as it did immediately before this prorogation,81
although not to prevent or limit the prorogation. A particularly curious example
of the court’s co-option of constitutional features into its chosen narrative is its
treatment of ministerial accountability to Parliament. It drew on Lord Carnwath’s
description of this feature in Miller I as ‘no less fundamental to our constitution
than Parliamentary sovereignty’,82 ignoring the fact that Lord Carnwath was
invoking it as a characteristic of the political constitution which militated against
greater legal control over executive action.
IV. Reections
In Miller I, Lord Reed criticised as ‘foreign to our constitutional traditions’ the
assumption that ‘if a prerogative power is capable of being exercised arbitrarily or
perversely, it must necessarily be subject to judicial control’.83 Miller II provides
powerful evidence of just how deeply the assumption of which Lord Reed
complained has now penetrated public law thinking. Regardless, the Supreme
Court owes it to the political community to be honest about how it sees the
relationship between law and political life, and what it is willing to reform in
order to implement this vision, instead of deploying ‘argumentational moves … to
disguise the novelty of its reasoning’.84
Many prominent scholars in the UK have applauded Miller II (and its prequel)
as a vindication of legislative supremacy over government by archaic and obscure
prerogative powers. e decision, it is said, ‘reects the principle of the rule of
law, which dates back to Magna Carta and, more broadly, the birth of civilised,
democratic society’.85 Objections are ‘unfounded’,86 and practically tantamount to
a rejection of democracy. However, this was a particularly hard time to sustain the
story of a runaway executive trampling over the rights of Parliament. Parliament
had consistently successfully impeded the Government’s agenda, legislating
repeatedly to frustrate the Government’s core electoral policies.
Prorogation brought widespread and justied anger towards Prime Minister
Boris Johnson, but Parliament too must take some of the blame for the sustained
82 Miller I (n 1) [249], cited in Miller II (n 3) at [46].
83 Miller I (n 1) [240]
84 Aileen McHarg, ‘e Art of Judicial Disguise’ (Judicial Power Project, 30 September 2019)
9June 2020.
85 John Stanton, ‘R (Miller) v e Prime Minister and the resumption of the Brexit debates’ (LSE
British Politics and Policy Blog, 24 September 2019)
r-miller-v-prime-minister-2019/> accessed 9 June 2020.
86 Joelle Grogan, ‘e Rule of Law, not the Rule of Politics’ (Verfassungsblog, 1 October 2019)
152 .
political impasse, having been too recalcitrant to approve any of the three
withdrawal agreements oered by Prime Minister eresa May, yet unwilling
to tolerate a no-deal departure from the EU, and too irresolute legislatively to
forestall its own prorogation when it had the opportunity to do so.87 Since the
Case of Proclamations, courts have incanted the supremacy of Parliament even as
the institution itself comes under increasingly direct Government control. Really
there is little courts can do to reinvigorate the supremacy of Parliament as a matter
of political reality, because Parliamentary sovereignty is not a creation of the courts.
Parliament created its own sovereignty by sustained political struggle, including on
the battleelds of the Civil War. Parliament only has, and only deserves, as much
‘sovereignty’ as it is willing and able to secure for itself.
Nick Barber has defended the court against allegations of judicial activism on the
basis that, ‘[r]ather than usurping political decision-making processes, the court
… [acted] to preserve the functioning of those processes’.88 Alison Young similarly
emphasises that the decision ‘empower[s] Parliament, not the courts’.89 On the face
of the judgment, this much is true, but commentators must confront the tension
involved in the court regulating what Parliament itself had not sought to regulate
– or had le regulated by convention alone – ‘in the name of parliamentary
sovereignty’.90 e court claims the right to ‘perfect’ the internal dynamics of
the Crown-in-Parliament into a shape dierent from that produced by the
interactions between Crown, Lords and Commons themselves. Critics will insist
that this necessarily undermines ‘Parliament’s autonomy to keep the executive as
accountable as Parliament … chooses’.91 It is not self-evidently appropriate – even
if now perhaps more common – for unaccountable and unrepresentative judges to
reshape the architecture of public power, regardless of in whose favour they do so.
87 It is easy to conclude that “[t]he brashness of parliamentary outrage is matched only by the meekness
of parliamentary action’: Michael Wilkinson, ‘A Constitutionally Momentous Judgment at
Changes Practically Nothing?’ (Verfassungsblog, 25 September 2019)
de/a-constitutionally-momentous-judgment-that-changes-practically-nothing/> accessed 9 June
2020.
88 Nick Barber, ‘Constitutional hardball and justied development of the law’ (Judicial Power Project,
29 September 2019) hardball-
and-justied-development-of-the-law/> accessed 9 June 2020.
89 Alison Young, ‘Dely guarding the constitution’ (Judicial Power Project, 29 September 2019)
June 2020.
90 Ramsay (n 52).
91 Nicol (n 50).
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