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Summary of Professor Andrew Harding’s Facebook Live Talk on “R (Miller) v The Prime Minister: Constitutional and Political Dynamics”

Summary of Professor Andrew Harding’s Facebook Live Talk on “R (Miller) v The Prime Minister: Constitutional and Political Dynamics”

Date: Monday 30 September 2019
Speaker: Professor Andrew Harding

Summary by Mr Kornranut Junwerasatien, 2nd year student, Faculty of Law, Thammasat University
Edited by Professor Andrew Harding

The caseR (Miller) v The Prime Minister (UK Supreme Court, 2019) concerns the prorogation of parliament, which is the situation when the parliamentary session comes to an end. The session normally lasts for one or two years. A prorogation brings one session to an end and then a new session will begin. There will be the Queen’s speech setting out the government’s legislative agenda for the session. A prorogation is different from dissolution where the parliament is dissolved and there will be the general election. A prorogation is also different from a recess which is a break during the parliamentary session.

At the end of August 2019, parliament was prorogued for an unusually long period of five weeks. The issue was the length of time. It was also in circumstances which appeared to work against parliament scrutiny of the government’s actions and plans on leaving the European Union on 31st October. This situation was complicated by the passing of the Benn Act or The European Union (Withdrawal) (No. 2) Act 2019 which requires the Prime Minister to seek an extension to the period for leaving the EU under Article 50 of the Treaty of the European Union (TEU), if no exit deal was reached by 19th October. The reason for this date is that the last European Summit before the 31st October would be on 17th and 18th October. The parliament was to be prorogued on some day between 9th and 12th of September until 14th October before the EU Summit and the possible operation of the Benn Act.

The propogation was thus controversial. The government claimed that this prorogation was needed in order to prepare the Queen’s Speech for the new session. The opposition claimed that the real reason was to avoid any parliamentary scrutiny in the current impasse over Brexit. A group of politicians challenged the legality of the prorogation in the courts in the case of Cherry and others v Advocate General for Scotland and the case of R (Miller) v The Prime Minister, where the case was brought by an activist. The point of the challenge was the legality of the advice giving to the Queen on prorogation.

Unlike other countries, the UK does not have a written or a codified constitution. However, there are relevant laws, conventions and practices. There is no legal concept of alaw or a measure being unconstitutional, and  there is therefore no constitutional review, but only review of the lawfulness or unlawfulness of an act or a measure. Thee conventions govern relations between the executive branch and the legislative branch, such as the dissolution of the parliament for the general election. As a consequence, the UK adheres to parliamentary as supposed to constitutional supremacy which is the basic feature of the British constitution.

Many powers exercised by the government are royal prerogative powers where the Queen is normally obliged to act on the advice of the government. Many of the constitutional conventions govern the manner in which the prerogative powers are to be exercised. It is accepted that some prerogative powers are subjected to judicial review, while others are not, depending on the subject matter of the prerogative power in question. In the earlier R (Miller) case in 2017, this issue features in that the point of that case was whether the invocation of Article 50 of the TEU needed an Act of Parliament before it could be done. The court always, however, retains the power to determine whether there can be  judicial review of such a matter. The prerogative powers exist, as the Supreme Court pointed out in the present Miller case, only because the common law recognises their existence. Therefore, the case was about the possibility of judicial review of the prerogative power to prorogue parliament. The Supreme Court heard the consolidated appeals on the third week of September after the parliament had been prorogued. There were four questions to answer. (1) Whether the advice to the Queen regarding prorogation was reviewable by the court? (2) If so, by what standards should such review take place? (3) Was the advice lawful according to such applicable standards? (4) If it was unlawful, what remedy could be applied in such an instance?

The answers to these questions depend on the way one starts to reason about them. If one argues that this issue is really about the nature of prerogative powers, then is established law that that, in itself, it is not an argument that they are not reviewable in the court.  The outcome depends on the subject matter of the power, not the source of the power. If, however, one believes that this issue is really about the operation of the political conventions (the Queen acting on the advice of the govenrment), it is settled that the court does not review the exercise of a convention. It is possible that they could declare the existence of the convention, but they would not seek to enforce it.

In this Miller case, the government argued that the Prime Minister was answerable to the parliament and prorogation was apolitical act in which the s should not interfere. That is exactly what the English High Court held, which decision was appealed by Miller in this case. The petitioner argued that the prime minister is subjected to both political and legal accountability on this matter, as was held in the Court of Session in Scotland. There was the conflict between the courts at the lower level, which it was for the Supreme Court to sort out.

The Supreme Court set out in the beginning that the frame of reference was that of the prerogative powers, which, as indicated above, are not in principle exempt from judicial scrutiny. The issue is actually about the conventions surrounding the manner of exercise of a prerogative power. To review the exercise of this power was not, as was alleged by the government, a failure to respect the separation to power. Indeed the court viewed itself as respecting the separation of powers by acting as a check on the executive branch. Ministerial accountability to parliament could not occur when parliament was prorogued. The limit of this power could be determined by the reference to the principles of the Common Law and the fundamental principles of the constitution, and the court could not shrink from determining this principle merely because of their political tone or context. The fundamental principle of parliamentary sovereignty has always been protected by the court from limitation by the exercise of prerogative powers.

The outcome thus became inevitable. The judgement perceives from there to the consequence of failing to impose the limits on the power of prorogation on which the former prime minister, Sir John Major, provided a compelling submission, to the importance of parliamentary accountability in the British system, and to the proper limitation to the power to prorogue. While it can legitimatelysuspend  parliamentary activity, it cannot be exercised so as to prevent parliamentary supervision of the executive.

The court found that the Prime Minister’s advice breached the limitation on the power in terms of parliamentary scrutiny. The preparation for the Queen’s Speech was not even a reason, let alone an adequate reason, in the Court’s view, for an unusual prorogation for a period of five weeks. The court looked only at the legality of the stated purpose of the prorogation by the government.

The prorogation was not a proceeding in parliament which is excluded from judicial review under the Bill of Rights Act 1688. It was something imposed upon the parliament from the outside. The prorogation was a result of an unlawful advice. It was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.”

The immediate consequence of the decision was a recalling of parliament that has occurred. The further consequences could be another attempt to prorogue or further legislation on Brexit. These are seen as the part of the political process which has been facilitated by the Supreme Court decision and the outcome of the Benn Act.

In terms of the doctrinal aspect of the political consequences of this decision, there are a lot of matters to be unpacked after the decision. How do we see the British Constitution after the Miller Case? Did the Supreme Court convert the political constitution into a rule of law constitution? Where does  this leaves the constitutional status of political conventions? Where does this leaves the separation power between the judiciary, legislative and executive branches? Where does this leave the constitutional system based on the Westminster Model around the world today? Around 50 countries have adopted the Westminster system by writing their conventions into their constitutions.

As far as the UK is concerned, Professor Griffith argued that the constitution is what happens. What happens is constitutionally legitimate in a political constitution. He pointed to the operation of the conventions and the sovereignty of parliament. The Supreme Court, in the first Miller case in 2017, regarded the Sewel convention concerning the assembly as a non-enforceable convention. The Supreme Court, in the second Miller case in 2019, leaves in doubt what the correct position is regarding conventions. Presumably, those conventions concerning the exercise of prerogative powers involving government advice are reviewable and enforceable after this case; while those not involving such powers are not reviewable. In the first Miller case  the relevant convention did not involve prerogative power, the Sewel convention related to legislation in areas of the common exercise related to assembly, but it was enacted in a statute law in a legislation. Accordingly, it does not look at all as if the conventions have been turned into law.

  • Are we to imagine the conventions around the dissolution of parliament or the refusion of the dissolution of the parliament are now subjected to the judicial review?
    Professor Harding thinks that we are not. In that sense, the political still governs, in spite of Miller No.2, at least in some areas. On the other hand, the Supreme Court has referred to the constitution’s basic principles, which comprise the common law and the sovereignty of parliament. Professor Harding thinks it includes the particular form in which the three powers are separated in the Westminster constitution.
  • Has the Supreme Court instituted a constitutional revolution of some kind?
    Professor Harding does not think that this creates a new basis of constitutional jurisprudence. It is indeed an extension of a narrative that starts with the XCase of Proclamations in the seventeenth century, extended to other cases in the eighteenth and twentieth century, leading up to the Miller No.1 and the Miller No. 2 cases. However, it indicates the fundamental nature of the legal principle of parliamentary sovereignty and the rule of the common law. The judiciary decides where and how power is separated, when it should intervene and when it should not. It is often decided that there is a good reason not to intervene, but this does not obstruct the basic character of the constitution. Miller No.2 is seen as following other cases in the past that built on the basic structure of the British constitution. Professor Harding would argue that this structure is also the basis to other constitution based on the Westminster Model whether they are written or unwritten.
  • Whether Professor Harding approve of this decision?
    Professor Harding thinks that this case is a ground-breaking case. It is very unexpected in term of eleven to nil ruling against the government. The judgement is carefully and clearly structured. It is also a convincing judgement. The decision will have ripple effect and be discussed for a long time to come.
  • Whether the court is acting as a guardian of the constitution?
    The court is a guardian of the constitution. In this sense, it is not unreasonable to regard the Supreme Court as a constitutional court. In this context, during recent the parliamentary proceedings, the speaker seemed to act as a one-man mini-constitutional-court by deciding from his chair a number of important of constitutional questions such as what kind of motions can be put in parliament, and he took a very clear view on the inappropriateness of the prorogation last month.