Authored By: Amandeep Kaur Basra
University of Birmingham
Introduction
The Miller[1] case led to fundamental criticisms of England and Wales’s legal system. The issues addressed by this case involve the weakening of the separation of powers, prerogative powers being used incorrectly and parliamentary sovereignty. Why is analysing this case so crucial? Critics before the ruling argued that Miller was an example of the executive silencing democratic institutions, and this poses a serious threat to the legal system. An examination of how this serious threat almost came to be allows us to identify similar future events to occur. I will first provide background information to the key concepts I will be discussing, followed by a case summary and then an analysis of the case at first instance, and then the final outcome and ratio decidendi.
Background
Prorogation is a suspension of Parliament, and this power is a prerogative power. Blackstone defines prerogative powers as “that special pre-eminence…over and above all other persons”[2]. Who holds this prerogative power? That would be the government who are exercising this power on behalf of the Queen. Prerogative powers are controversial as they aren’t defined by statute, are governed by convention and they are residual powers, which means they were once held by the monarch but have now shifted to the government. Dicey articulates the powers as being ‘the residue of discretionary arbitrary authority’[3], meaning that although many of the monarch’s powers have now been transferred and reduced, the Crown now have some degree of authority that is often deemed controversial, which is the subject of contention in the Miller case. To clarify, the crown in this instance is, as Lord Diplock states in Town Investments Ltd[4], ‘the government – a term appropriate to embrace…all of the ministers of the Crown and parliamentary secretaries’. While these powers were initially seen to be non-justiciable since they aren’t statutory powers, this idea has now shifted overtime. . It is relatively recent that the courts have begun challenging prerogative powers, one example of this being the GCHQ[5] case. The House of Lords here confirmed that prerogative powers can be challenged if there is the appearance of illegality, irrationality and procedural impropriety. As articulated by Lord Diplock, “When a person’s private rights of legitimate expectations are effected by the execution of the prerogative power, then that execution of power should be allowed to be reviewed.” Here he is stating that in cases where a severe consequence to a person’s rights or legitimate expectations has been caused, prerogative powers should be justiciable. Prerogative powers are the central issue in GCHQ, as it is an example of these powers being used to blur the separation of powers, and a case where the courts’ reaffirmed their ability to judge these cases.
Case Summary
The Brexit referendum was a nationwide election to decide whether the UK should leave the European Union. This was a lengthy process however, and in 2019 the UK was approaching its deadline to leave the EU. To prevent the Brexit agenda from being blocked by Parliament, Boris Johnson, the Prime Minister at the time and the defendant in this case, gave advice to the late Queen to prorogue Parliament. This is a prerogative power which was used to prorogue the session. Gina Miller, the claimant, took this case to the High Court, as she believed this prorogation violated parliamentary sovereignty. At first instance, the case was rejected as it was decided to be non-justiciable, but was later successful in the Supreme Court. Why did this case violate parliamentary sovereignty and accountability, and why was it non-justiciable at first instance?
Case Rejected at High Court
Executive, legislative and judiciary powers are separated to ensure that no one branch becomes too powerful. According A.V. Dicey’s rule of law[6], the separation of powers is vital. When the Prime Minister, the executive, decides to take control over Parliament’s sessions, he merges his executive power with that of the legislative. If this power goes unchecked, this could lead to a complete overstep of the executive to the legislative. As Parliament is England and Wales’s supreme lawmaking power, this could affect democracy if one individual has the power to create, amend or repeal Acts of Parliament.
The case at the High Court was rejected as it was decided to be non-justiciable. Prerogative powers were historically possessed by the monarch and could be exercised at their discretion, without the need for parliamentary approval. The court’s decision to not challenge the prerogative powers here were due to the notion that because they aren’t found in statute, they are immune from judicial review. As mentioned earlier, the GCHQ case was the foundation for prerogative powers being judicially reviewed in court. Despite this, scholars argued the Miller case could not be challenged because the judiciary should not involve themselves in highly political matters. Although matters related to Parliament’s prorogation may seem a political matter, many believed that as Boris Johnson’s advice to the Queen was unlawful, it should be challenged as it would undermine the rule of law if so. To allow one individual to place themselves above law that should govern the entire nation, regardless of their political, financial or social position, would destroy the rule of law. As a result, the Supreme Court allowed an appeal.
Final Outcome
The appeal took place in the Supreme Court, whereby it was held that the prorogation of Parliament was unlawful, and therefore null. This judgment was significant as it further proved that prerogative powers can be justiciable if they are unlawful. Although the matter involved parliamentary sessions and the executive, the matter was not so political, that the courts’ could not review it. This case reaffirmed that parliamentary sovereignty must be protected, as using prerogative powers to undermine it are not just. As a result, they will be deemed unlawful to prevent the executive being denied of parliamentary accountability. What does this mean in action? If the Prime Minister was successful in his prorogation and the judiciary were unable to review his actions, then this would undermine democracy, as the legislative are elected representatives, and their will is strained for that of the executive.
An interesting element to the judgment was the decision to nullify the prorogation itself, and not just the advice Boris Johnson gave to the Queen. This is a rare occurrence and surprising that the courts would issue such a remedy. This extreme measure shows that they are in severe dissent of the actions taken place in this case, particularly due to the issues it can cause with democracy and the rule of law. Academics would argue it was an example of judicial creativity in a field of law that has not yet been explored, as courts judicially reviewing prerogative powers is rare.
Impact on UK constitution
The willingness of the courts’ to act in cases where prerogative powers being used, reaffirms the rule of law and the separation of powers. The rule of law is a fundamental principle in the UK legal system, and Miller confirms that everyone, even government ministers exercising their prerogative powers, are accountable to the law. If the Supreme Court were to reject the appeal and the initial judgment were to stand, the rule of law would start to disintegrate. If the Prime Minister can act in a manner that is unjust and not be held accountable, then the idea that the law applies to everyone, is no longer true. The courts’ also showed that although the separation of powers is a historic concept, it is still very relevant to this day. The executive, legislative and judiciary are three strands of power that must be separated to avoid tyranny. Some scholars believe this case acts as further evidence as to why the prerogative powers should be curtailed. The Taming the Prerogative report[7], a need for ‘legislation to provide greater parliamentary control over all the executive powers’ was highlighted. This report was made in 2004, showing that criticisms of prerogative powers is not a new thing.
Ratio Decidendi
The court held in its ratio decidendi that “the prorogation has the effect of frustrating or preventing…the ability of Parliament to carry out its constitutional functions”. This is the main reason as to why the Supreme Court decided that the prerogative powers here were unlawful. A.V. Dicey articulates that parliamentary sovereignty is Parliament’s right to “make or unmake any law whatever, and no person or body is recognised, as having a right to override or set aside the legislation of Parliament.”[8] By proroguing a parliamentary session, Parliament’s ability to make or unmake any law was altered, specifically regarding the laws around Brexit. The courts found that there was no reasonable justification for a five-week prorogation and had a negative impact on Parliament’s ability to scrutinise the Brexit agenda. Some scholars argue that the ease at which the Prime Minister was able to do this is concerning. However, it can be interpreted in a positive lens as it reaffirmed the idea that prerogative powers are justiciable.
Conclusion
The Miller case is significant as the Supreme Court reaffirmed the principle, that prerogative powers are justiciable even though they don’t exist in statute. Although prerogative powers being judicially challenged is relatively recent, Miller acts as a key case for any future issues relating to these powers.
Bibliography
Cases:
R(Miller) v the Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41
Town Investments Ltd v Department of the Environment [1978] AC 359
Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374, [1985] ICR 14
Books:
Dicey, A V , An introduction to the Study of the Law of the Constitution (first published 1885, Macmillan) 39
Hazell Robert and Sayers-Carter Charlotte, ‘ Taming the Prerogative: Strengthening Ministerial Accountability to Parliament’ [Select Committee paper] [Parliamentary Archives], [2004]
Wiliam Blackstone, Commentaries on the Laws of England (first published 1765)
[1] R(Miller) v the Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41
[2] Wiliam Blackstone, Commentaries on the Laws of England (first published 1765)
[3] A V Dicey, An introduction to the Study of the Law of the Constitution (first published 1885, Macmillan)
[4] Town Investments Ltd v Department of the Environment [1978] AC 359
[5] Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374, [1985] ICR 14
[6] ibid
[7] Robert Hazell and Charlotte Sayers-Carter, ‘ Taming the Prerogative: Strengthening Ministerial Accountability to Parliament’ [Select Committee paper] [Parliamentary Archives], [2004]
[8] A V Dicey, An introduction to the Study of the Law of the Constitution (first published 1885, Macmillan) 39
