This article is part of a Brexit Institute Blog Series on “The UK Supreme Court Judgment on Prorogation”. See also Stephen Tierney, The UK Supreme Court’s decision on prorogation; Giovanni Zaccaroni, The UK Supreme Court Judgment on Prorogation: Reaffirming the Centrality of the Parliament
‘Not a Normal Prorogation’: Parliament, The Courts, the Crown and The People
Alan Greene (University of Birmingham)
In holding that Parliament had been unlawfully prorogued, the UK Supreme Court’s judgment in R (Miller) v Prime Minister; Cherry v AG for Scotland  UKSC 41 (hereinafter Miller 2) sent shockwaves across the political and legal landscape. Miller 2 is a strong rebuke of the Government’s actions but one that nevertheless tip-toes around the key constitutional dispute that lies at the heart of Brexit: ‘the will of the people’ as expressed in a referendum versus their representatives elected to speak on their behalf.
This judgment could not have gone much worse for the government. Not only did the Supreme Court find the issue justiciable, thus departing from the English High Court’s decision at first instance, they proceeded to find that this exercise of the prerogative to prorogue Parliament was unlawful. Furthermore, to rub salt into the wound, the Court reiterated that it was void ab initio—Parliament was never prorogued in the first place. Finally, the judgment was unanimous. There was no dissent that the Government could cling to for comfort. No stronger a reprimand could have been issued.
On the first question of justiciability, the Court found that it was uncontroversial that the scope and exercise of prerogative powers was amenable to judicial review. The court stressed that prerogative powers are limited by statute and common law principles and that this case was no different. The prerogative to prorogue Parliament would therefore be limited by the constitutional principles that it came in conflict with:
…a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.
The two key constitutional principles at play therefore are Parliament’s legislative function and its supervision of the executive. The Supreme Court found that the decision to prorogue parliament did frustrate these constitutional principles. Indeed, so vehement were they on this point, they went so far as to say, ‘Of course it did.’
The Court then went on to consider whether there was any reasonable justification for this, stressing that when doing so, ‘the Government must be accorded a great deal of latitude in making decisions of this nature’. They distinguished between the reasons for doing so and the Prime Minister’s motive, the latter of which the Court was not concerned with. In this regard, the Court found that no reason was given to prorogue parliament for the lengthy period of five weeks at such a monumental time in UK politics. Consequently:
It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.
Parliament v The Crown, not Parliament v The People
The Supreme Court judgment treads some familiar territory, invoking famous quotations from past judgments, oft-used by law students in their first-year public law essays. The judgment is thus cloaked in the comforting familiar. Yet this is not to downplay the significance of Miller 2, nor does this detract from the fortitude of their rebuke; if anything, it amplifies it by underlining the unconstitutional nature of the Prime Minister’s actions.
The issue at the heart of this case was framed as a quintessential clash between the legislature and the executive. The long dormant conflict between the Crown and Parliament has been re-kindled, first by the original Miller judgment in 2017 (Miller 1) and now by Miller 2. In both cases, the Court has come down on the side of the parliamentarians. Indeed, so keen was the Court to stress this that it presented a rather novel statement as to the origins of parliamentary sovereignty in its interpretation of the 1610 Case of Proclamations— a case decided during the reign of James I, some 40 years before the execution of Charles I in 1649 over this very issue of who was sovereign: the Crown or Parliament.
To further temper accusations of judicial activism, the Court stressed the exceptional nature of the circumstances surrounding the case. In so doing, they sought to reassure that judicial intervention in the exercise of the prerogative to prorogue Parliament would thus only occur in rare circumstances. This is deeply ironic, as invocation of exceptionality to justify a power grab is a common move used by the executive in recent years, particularly in the area of national security. This part of the judgment stands in stark contrast to the English High Court’s judgment at first instance where in finding that the question was non-justiciable, they gave effect to a dangerous legal black hole—zones of executive and administrative discretion created by law but within which no recourse to law can be made. Legal black holes thus deepen executive power through reducing the scope of judicial review. The opposite, however, has occurred here.
This reproach of executive power is further corroborated by the Court’s implicit denunciation of the executive claiming any mandate direct from ‘the people’. Miller 2 places a heavy emphasis on parliamentary sovereignty and representative democracy. It restates the orthodox position that the referendum was advisory only, rejecting any conception of popular sovereignty. The court thus clearly rebukes the idea that the Government has any democratic mandate derived from the referendum result in 2016 to implement ‘the will of the people’:
Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.
The 2016 referendum is therefore advisory, notwithstanding successive governments pledging to implement the result. The UK constitution thus trundles on.
In legal terms, Miller2 is a conflict between the legislature and the executive. Like Miller 1, however, it is ultimately a proxy war for the true constitutional dispute at the heart of Brexit: the will of the people expressed in a referendum versus their elected representatives. For the Supreme Court, there is no clash between the ‘will of the people’ and Parliament, however, for there is no constitutional authority known as ‘the people’.
Yet, despite the forcefulness of the curtailment of the prerogative in Miller and Miller 2, so long as the Supreme Court repeats that the referendum has no legal effect, it is also re-stating that this dispute will only be resolved through politics, not law. The ball is thus back in the political court although it is debatable that it ever left it to begin with. It remains to be seen what this Parliament will do with the opportunity it has been presented with. Once again, all eyes will be glued on the House of Commons.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Alan Greene is a Senior Lecturer in Public Law and Human Rights at Birmingham Law School. He is on twitter here.