Introduction

In a succinct and surprisingly unanimous judgment in Miller and Cherry [2019] UKSC 41 the UK Supreme Court delivered an unprecedented rebuke to the Prime Minister in deciding that he had not shown “any reason – let alone a good reason” to advise the Queen to prorogue Parliament, ruling that the prorogation was unlawful, void and of no effect. While the Court was anxious (and perhaps over-eager) to stress that the judgment was a “one-off”, constitutional lawyers have and will continue to debate the far-reaching effects of the ruling on the UK Constitution for decades to come. One discrete point that will divide commentators is the precise juridical basis for the decision, with eyebrows raised at the repeated appeals by the Court to common law constitutionalism in arriving at its decision. Aiden O’Neill QC, for the Cherry respondents referenced the landmark Marbury v Madison ruling of the US Supreme Court to highlight the significance of Wightman v Brexit Secretary and perhaps remind the Supreme Court of the momentousness of the prorogation appeals before it. Indeed, commentators have made comparisons between the UK Supreme Court and the US Supreme Court in the course of the increasingly fraught recent constitutional cases. While such comparisons may mushroom in the days (and years) to come, I argue that a tellingly apposite comparison in the underlying ratio of Miller and Cherry lies with a constitutional court on the other side of the world: The Supreme Court of India.

Constitution and constitutionalism

While it is trite that the UK has no codified anterior constitutional document, common law constitutionalism was not pulled out of a magic hat by the Supreme Court. Forming the basis for the now-celebrated cases of Proclamations, De Keyser and Fire Brigades Union, it is worth remembering that the common law is the source for the rule that a prerogative power goes into abeyance when a statute overlaps with it. In that sense, Miller and Cherry indicates no radicalism, but merely is, as the Court pointed out, a case of the law “rising to [meet] challenges” faced by it. However, what is perhaps illuminating is how the Supreme Court utilised common law principles in answering the issues of justiciability and lawfulness and what that says about the existence of an anterior UK Constitution.

Concerning justiciability, the Court highlighted its concern with the limits of the prorogation power rather than the question of whether the power was exercised lawfully within its limits. On this red-line or threshold question, prorogation was held to be a justiciable power [52]. Next, the Court delved into the issue of whether the advice to prorogue had been lawful. This involved a two-stage test: whether prorogation intended to frustrate parliamentary function and if so, whether such frustration was reasonably justified [50]. On both limbs of the test, the Government failed, with the Court finding that there was no reason for the particular prorogation of 5 weeks.

The precis above does scant justice to the depth of scrutiny conducted by the Court – delving into constitutional functionality as the foundation for constitutional principles. The Court grounded the fundamental principle of parliamentary scrutiny in Parliament’s nature as the sole forum of direct democratic legitimacy [55]. It claimed its place as the only authoritative arbiter of parliamentary privilege based on its role as interpreter of statutes [65] (far more stridently than the view expressed in Chaytor from which the Hale Court derived its authority on this issue). Arguably, it also reopened the question of whether, as a matter of law, there remain any categories of executive decisions excluded from the supervisory jurisdiction of the courts – at least if the jurisdiction is invoked in threshold questions of the type posed in this case.

All in all, the Court dived headlong into the roots of the Constitution and answered questions as to its own adjudicatory capacity from a decidedly principled, rather than a solely precedential or circumstantial basis. In doing so, the Court put paid to the reductive assertion that the UK lacks a constitution solely because there is no document with that title. Instead, in the nuanced reasoning of the Hale Court, it is clear that there is an anterior Constitution of principles which determines the boundaries of institutional lawfulness.

India and the evolution of the basic structure

The storm which faced the Hale Court – politically heavy-handed executive action dressed up in wafer-thin constitutional justification, was a storm which battered the doors to the Indian Supreme Court during India’s infamous Emergency (1975 – 1977). Ruling largely by executive fiat, the then government in Delhi enacted the most wide-ranging amendment to the young Indian Constitution before or since, eviscerating virtually all checks and balances that separated the three branches of the State. In response, the Court decided in the seminal case of Minerva Mills v Union of India that sections of the 42^nd Amendment, though validly passed and etched into the Constitution itself, were unconstitutional. Its ratio involved the now-matured “basic structure doctrine” which at its heart finds many of the parallels of principle which defined Miller and Cherry.

The basic structure doctrine began life in a hypothetical question: can a politically strong executive backed by an advantageously numbered legislature amend the Constitution so much or so drastically that it no longer resembles the Constitution? This constitutional Ship of Theseus first reared its head in 1965, eventually transforming into a very real and very volatile controversy in Minerva Mills. In the latter case, as in Miller and Cherry, the Court embarked on a tour de force examination of constitutional principles, not least the role of the judiciary in interpreting and enforcing such principles. One of the most controversial aspects of the 42^nd Amendment was its sweeping attempt to insulate parliamentary enactments against judicial review, setting its face against any judicial attempt to enforce fundamental rights in the teeth of an unstoppable executive. Even more insidiously, the Amendment had inserted an ouster clause in Article 368 of the Constitution (and also made the Article limitless in its application), which gave the Indian Parliament its amending powers, so that constitutional amendments were beyond the purview of judicial scrutiny. Both ousters were struck down on a point of principle: “It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water.”

As in Miller and Cherry, the Chandrachud Court in Minerva Mills delved into the roots of the Indian Constitution, going beyond the text to find the principles which underlay it. In a remark which bears a striking resemblance to the discussion of the justiciability question in Miller and Cherry, Chadrachud CJ observed in Minerva Mills: “The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.” The comparison is apt precisely because both Courts’ observations on justiciability were made in the absence of a specific textual authority – no part of the Indian Constitution confers the judiciary with the role of not only interpreting the Constitution but also safeguarding it from runaway politics. In that sense, Minerva Mills was about acknowledging the principles which underlie the physical Indian Constitution – principles which are, as in the UK, both anterior to and inherent within institutional functionality.

In another thorny case from the Emergency, State of Rajasthan v Union of India, the issue was whether the Federal government had lawfully advised the President to dissolve State administrations and whether the consequent proclamations were themselves lawful. Beg CJ grappled with the question of justiciability in basic structure terms:

“[…] each of the three organs of the State – the Executive, the Legislature and the Judiciary has its own orbit of authority and operation. It must be left free by the other organs to operate within that sphere even if it commits errors there. It is not for one of the three organs of State either to correct or to point an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers. But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary which ought to redress the wrong done when properly brought up before it.”

Extraneous factors and mala fides were two ways in which the Beg Court determined that an organ of the State would exceed the scope of otherwise non-justiciable powers (including the one in issue in that case) – the former presupposing rationality review.

This distinction was in full show in Miller and Cherry, where the Hale Court ultimately found that the prorogation power was exercised outside the relevant limit (“reasonable justification”) rather than the (arguably) non-justiciable question of whether the power was exercised in a politically proper manner within its limits (thus avoiding the entire issue of motive and purpose). The language of reasonable justification moreover presupposes irrationality as a way of exceeding the scope of an otherwise non-justiciable power in much the same way as in Rajasthan. Importantly, the ratio in Rajasthan as in Minerva Mills derived from principles which lay deeper than any text.

Towards a less amorphous Constitution

I have not made the comparison with India simply because it too developed its jurisprudence in the crucible of nail-biting constitutional controversies, or indeed because of the shared common law heritage. The comparison is at its most useful to the wider debate on UK constitutionalism when one considers that India has an anterior constitutional document which is its highest body of law. The Miller and Cherry judgment, itself the latest in a series of Brexit or ‘Brexit-ish’ constitutional jurisprudence, has reignited the debate on whether the UK needs a written constitution. Examples range from a revamped Act of Union that would reorder much without a clean sweep of the existing edifice to Adam Wagner’s suggestions for something much more reformist. What the Indian experience shows, however, is that a written constitution (itself one of the world’s longest) will still need to be invigorated by reference to principles beyond the text. In Miller and Cherry, the Hale Court has shown that, just like in India in the late 70s, it was the nuanced appreciation and fearless application of constitutional principles, rather than the constitution per se, which halted a complete meltdown.

Anurag Deb, paralegal at KRW LAW LLP and BPTC graduate, The University of Law

(Suggested citation: A. Deb, ‘A Constitution of Principles: From Miller to Minerva Mills‘, U.K. Const. L. Blog (1st Oct. 2019) (available at https://ukconstitutionallaw.org/))