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On 24 September 2019, the President of the UK Supreme Court, Lady Hale, read out a summary of a judgment that stunned the country. The Prime Minister’s advice to the Queen to prorogue Parliament was unlawful, the resulting prorogation was void, and Parliament, in law, had never been prorogued at all. R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland, often called Miller II, is one of the most important public law decisions of modern times.

The Background

Prorogation is the formal ending of a parliamentary session. It is done by the Monarch, on the advice of the Prime Minister, under the royal prerogative. While Parliament is prorogued, neither House can sit, debate, pass legislation or question ministers. Prorogations usually last only a few days before a new session opens with the King’s or Queen’s Speech.

In the summer of 2019, the United Kingdom was due to leave the European Union on 31 October, and Parliament was deeply divided about whether and how to leave. On 28 August 2019, Prime Minister Boris Johnson advised the Queen to prorogue Parliament from a date between 9 and 12 September until 14 October, a period of about five weeks. The advice was accepted. Critics argued that the real purpose was to limit Parliament’s ability to scrutinise the government’s Brexit plans in the critical weeks before the deadline.

Two Cases, Two Answers

Challenges were brought on both sides of the border. In England, the businesswoman and campaigner Gina Miller sought judicial review; the Divisional Court held that the matter was political and not justiciable, meaning not suitable for decision by a court. In Scotland, a group of parliamentarians led by Joanna Cherry MP brought proceedings; the Inner House of the Court of Session held that the prorogation was unlawful. The appeals were heard together by eleven justices of the Supreme Court over three days, from 17 to 19 September.

The Decision

The Court’s judgment was unanimous. It addressed three questions.

First, was the issue justiciable? Yes. The Court drew a distinction between the existence and limits of a prerogative power, which courts have always been able to decide, and the way the power is exercised within its limits. Since the Case of Proclamations (1611), courts have determined the limits of prerogative powers. The question here was about limits, so it was one for the courts.

Second, what are the limits of the power to prorogue? The Court identified two fundamental principles of the constitution: parliamentary sovereignty, and parliamentary accountability, meaning the government’s responsibility to Parliament. A power to prorogue without limit would be incompatible with both. The Court therefore held that a decision to prorogue is unlawful if it 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 supervising the executive.

Third, was this prorogation unlawful? Yes. Its effect on Parliament’s functions was extreme, at a time of fundamental constitutional change. The government put forward no reason, let alone a good reason, for a five-week prorogation.

As to remedy, the Court held that the Order in Council was unlawful, void and of no effect. It was as if the Royal Commissioners had walked into Parliament with a blank sheet of paper. Parliament had not been prorogued. The Speakers of both Houses arranged for them to sit the next day.

The Aftermath

The judgment was welcomed by many as a defence of parliamentary democracy and criticised by others as judicial overreach into politics. The government later introduced legislation on the dissolution of Parliament. The Dissolution and Calling of Parliament Act 2022 revived the prerogative power of dissolution and included a clause excluding the courts from reviewing it, a direct response to the reasoning in Miller II, though it did not deal with prorogation.

Why It Matters

For University of London Public Law students, Miller II is essential. It shows the courts protecting constitutional principles in an uncodified constitution by treating those principles as legal limits on executive power. It also offers a clear framework for thinking about justiciability, prerogative powers and the separation of powers. For readers in Bangladesh, where the Constitution is written and supreme, the case shows how a court without such a text can still hold the executive to constitutional fundamentals.

Sources

1. R (Miller) v The Prime Minister; Cherry v Advocate General [2019] UKSC 41, UK Supreme Court: https://www.supremecourt.uk/cases/uksc-2019-0192
2. BAILII, [2019] UKSC 41: https://www.bailii.org/uk/cases/UKSC/2019/41.html
3. Dissolution and Calling of Parliament Act 2022, legislation.gov.uk: https://www.legislation.gov.uk/ukpga/2022/11/contents