—Theodore Konstadinides, Professor of Law, University of Essex
The Miller / Cherry legal battle last week lingered between the tectonic plates of the political and the legal. It was three days of carefully defined legal terms, extended and masterful advocacy combined with awkward pauses, grimaces of disbelief, and phrases that baffled non-lawyers. Both prior and during the hearing we heard from the Prime Minister that the Supreme Court must not involve itself in the political. A barrage of questions was accordingly hurled at the Miller appellants and Cherry respondents by Sir Eadie (on behalf of the Prime Minister) and Lord Keen (AG for Scotland) that must have made even the best of law students query what relevant principles of public law should apply in these appeals. Both barristers skillfully warned the Supreme Court not to trespass into forbidden territory and question proceedings in Parliament out of Parliament. To do so would be in breach of Article 9 of the Bill of Rights 1689 expressly prohibiting such intervention. Millions of members of the public watching on live-stream or in the overflown courts must have wondered whether it is perhaps too abstract (or academic) to ask judges to determine how long is too long when the Prime Minister decides to suspend Parliament? Similarly, can we expect judges in their wisdom to deduce the motive (malign or not) behind the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks?
I argue that the above two questions are distracting from the main legal issues at stake and, therefore, shall not deter the Supreme Court from deciding against the Prime Minister. Although on closer inspection it is not the job of the courts to identify all circumstances in which prorogation would be unlawful, judges shall not be obstructed from carrying out the function they apply in other cases. While, therefore, the eleven judges shall apply a generous margin of discretion to the Prime Minister, they shall issue a declaration that the advice tainting the act of proroguing Parliament was unlawful and that Parliament shall resume as soon as possible. This is for two reasons clearly stated by Lord Pannick, acting on behalf of Mrs Miller: First, behind the political veneer of prorogation one needs to focus on the effect of the Prime Minister’s advice to the Queen to shut down Parliament irrespective of any improper motive. The effect was to prevent Parliament from carrying out its scrutiny functions for no rational reason (note that no witness statement was made during the hearing on behalf of the Prime Minister). Such scrutiny functions include the capacity (or inalienable right) of Parliament to ask questions, to report matters, to plan ahead during a crucial time for the UK assisted by parliamentary committees. These are functions, which cannot be removed from Parliament as the ultimate legislative authority in the UK in a way that is deemed abusive, abrupt or which has been carried out under false pretenses.
And this brings us to the doctrine of Parliamentary Sovereignty or Supremacy which such prorogation has undermined at its core. As Lord Pannick highlighted, Parliamentary sovereignty is not a mere convention. It is not a principle confined on the obligation of the executive and courts to comply with enacted statutes. It also includes allowing Parliament to enact statutes – enactment being the basic unit of legislation. As we now know, the extended period of prorogation means that a number of important bills will be lost – they won’t be debated, they won’t go through the Houses. Hence one need not be a constitutional expert to understand that prorogation has undermined the principle of the executive being subject to Parliamentary scrutiny (perhaps because Parliament was an impediment to the successful implementation of the Prime Minister’s policies). It is a constitutional axiom that since Parliament is supreme over Government as far as lawmaking is concerned it cannot be impeded from legislating. It is on these two fundamental constitutional premises: the executive’s accountability to Parliament and Parliamentary sovereignty that any argument that the Supreme Court must not involve itself in the political is deeply unfounded. These two points are legal and go together hand in hand. Prorogation, like any other means employed by a junior partner to trap the senior partner, shall be dismantled by the constitution. To repeat what was said earlier, these appeals are not asking the Supreme Court to delve into the realm of the unknown deliberating on abstract political hypotheses pertaining to the duration of prorogation or the legitimacy of the objective behind it.
In light of what has been argued, the power to dissolve Parliament is not a province of the executive as pointed out by Lord Keen. It is reviewable as a matter of the Supreme Court applying legal and constitutional principles. A declaration that prorogation was unlawful is therefore orderly and proper, although not a binding remedy. Having said that it is an authoritative judicial statement that shall have the inevitable consequence that the Order in Council (which set the dates from and to which Parliament is prorogued) shall also implicitly be declared to be unlawful because it was based on unlawful advice. It preceded Parliament’s proceedings – it was not a proceeding itself and henceforth not immunised by Article 9 of the Bill of Rights. Accordingly, the Supreme Court needs to secure the scope of judicial review that the rule of law requires. Following a declaration tomorrow by the Supreme Court that prorogation is unlawful and is thus null and void, Parliament needs to do whatever it thinks is appropriate – the Speakers of both Houses will have to decide how to proceed on the basis of such a declaration. In short, the Supreme Court shall defer to Parliament. On the other hand, the Prime Minister will have to take the necessary steps to comply with the terms of a declaration that the advice was unlawful (a commitment made in the Prime Minister’s detailed grounds of resistance in the High Court). This is what the Constitution mandates. This is what constitutional order, which finds expression in the separation of powers and the rule of law, should look and feel like in the UK.
Suggested Citation: Theodore Konstadinides, Observations on the Supreme Court’s Miller and Cherry Hearings, Int’l J. Const. L. Blog, Sept. 23, 2019, at: