Miller (No 2) and Bush v Gore (2000) have something in common. Both cases featured judicial intervention in politics and basic questions of constitutional power. Both resulted in controversial outcomes that provoked popular suspicion about the personal motives of justices. The US Supreme Court was visibly divided, but the unanimity of the UK Supreme Court did not silence critics. Bush v Gore had a more dramatic, immediate effect, sealing the outcome of the presidential election. Miller (No 2) is more significant legally and constitutionally. It amounts to a greater incursion of courts into the workings of the political system than Bush v Gore, and a greater expansion of judicial power over the executive. As a result of Miller (No 2), the power of UK courts over the executive is in some respects greater than in the US and among the most extensive in the world.

In Bush v Gore, the US Supreme Court overruled the Florida Supreme Court in a matter involving vote recounts overseen by the Florida secretary of state, whose main responsibility is oversight of elections. In Miller (No 2) the Supreme Court asserted power not over a statutorily defined administrative process, but over one of the most fundamental discretionary powers of the highest political office in the land. It would be roughly analogous if the US Supreme Court were to take jurisdiction over the Senate’s filibuster practice—a matter of political convention and internal Senate rules—in order to prolong a debate.

The UK Supreme Court has now done things no UK court has done before and which are largely unprecedented in a Westminster parliamentary system: (1) ruled on a question of prorogation; (2) declared unlawful the advice of the Prime Minister to the Crown; (3) legally enforced (in effect) a constitutional convention, namely accountability of the executive to Parliament; and (4) discarded limits on justiciability in regard to the prerogative power. This essay focusses on the last point.

In a unanimous judgment, three of England’s most senior judges in the High Court had ruled that the prorogation of Parliament is not a justiciable issue, citing a range of cases of weighty authority. The court noted, for example, a joint judgment of Lord Neuberger, Lord Sumption and Lord Hodge (Shergill v Chair [2015] AC 359 at [40]) holding that an issue was non-justiciable because it was ‘political’: (1) because ‘it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations’, and (2) because of ‘lack of judicial or manageable standards’.

It is notable that this tracks two key points of the US doctrine on political questions, which were examined in the aftermath of Bush v Gore. Courts cannot review a decision where (1) the Constitution affirmatively commits it to Congress or the President or (2) there are no judicially discoverable and manageable standards for ruling on the issue (see Baker v Carr (1962)). The roots of the doctrine are in Marbury v Madison (1803), which launched the Supreme Court’s power to rule on the constitutionality of legislation but also said this: ‘Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.’

Following a period of reflection on Bush v Gore, influential US scholars argued that the case should have been dismissed and treated as a political question, since the Constitution had entrusted Congress with authority to settle controversies over the eligibility of electors to be seated in the electoral college. The dissenting justices raised similar points, pointing to the lack of a standard for judicial resolution. Justice Breyer wrote that the ‘strangeness of the issue,’ its ‘intractability to principled resolution’, its ‘sheer momentousness, . . . which tends to unbalance judicial judgment’ (quoting Alexander Bickel, The Least Dangerous Branch), were reasons for the Court not to intervene.

Miller (No 2), in contrast to the US doctrine, effectively holds that all exercises of the prerogative power are justiciable, including its highest political functions. The UK Supreme Court’s ambitious, far-reaching language reminds one of Marbury’s elevated tone regarding judicial responsibility for the constitution, but crosses a line that the US Supreme Court did not. Miller (No 2) states that courts ‘have the responsibility of upholding the values and principles of our constitution and making them effective’ (para 39). Echoing Lord Drummond Young’s statement in Cherry that ‘any act of the executive’ is liable to judicial scrutiny, the Supreme Court states that courts have the ‘particular responsibility’ to decide whether ‘any exercise of power has transgressed [legal] limits’. Further: ‘The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.’

The Court noted detailed submissions and authorities about categories of decision excluded from review because they involve ‘high policy’, but dismissed them and declined to discuss cases such as Shergill. The reason, the Court said, is that they are about the exercise of the authority, and there are no limits of justiciability in determining whether a given prerogative power exists (para 36). This distinction is valid but misapplied. As Stephen Tierney has observed, the courts’ ‘immanent jurisdiction’ to determine whether a claimed use of a prerogative power has a legal basis is fully compatible with treating certain categories of the power and their exercise as excluded from review by courts—and hence ‘non-justiciable’. The Supreme Court elided the distinction between existence and exercise by sleight of hand.

The Court appears to have been influenced by the Inner House’s decision in Cherry, in particular Lord Young’s holding that if a power is used for an improper purpose it is ultra vires, beyond its legal scope. He stated: ‘The grounds for judicial control of the exercise of prerogative powers are in my opinion broadly the same as those used in other cases of judicial review of executive action.’ He offered a partial qualification, that ‘the court should not interfere with the substantive political grounds for the exercise of prerogative power provided that the power is used for a proper purpose’ (para 104, emphasis added). Opining that the standard of proportionality would be available if necessary, he focussed instead on whether the Prime Minister had an improper purpose. The Inner House did not shy away from concluding that the Prime Minister’s real but ‘clandestine’ motive was ‘blatantly [frustrating] the will of Parliament at such a critical juncture in the history of the UK’.

The Supreme Court avoided any such overt inquiry into motives. But it has left the Cherry judgment standing and uncorrected. The Inner House’s review of the reasons for the use of a power collapses the distinction between the scope/existence of a power and its exercise, and so does the Supreme Court’s holding that the Prime Minister’s 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 supervision of the executive’ (para 50, emphasis added). It is impossible to determine whether this standard has been met—especially the question of reasonable justification—without reviewing political questions of high policy in the exercise of power. Executive accountability to Parliament is the subject of a cluster of long-standing constitutional conventions related to the principle of responsible government. Since Miller (No 1) had held that constitutional conventions are not a matter for judicial enforcement, it is surprising that the Court did not consider this to be another barrier to justiciability.

The first criterion for non-justiciability noted in Shergill (see above) is that the power is committed to the ‘proper province of the executive’ (e.g., conduct of foreign relations). That is clearly the case here. The power to prorogue Parliament has belonged to the Crown through centuries of unvaried convention, which has been recognised in numerous statutes and recently affirmed in the Fixed-term Parliaments Act 2011. This is similar to other Westminster systems, such as Australia and New Zealand, where constitutional instruments commit prorogation to the Governor General. The second criterion in Shergill is whether there is a ‘judicial and manageable’ standard for deciding cases. Such a standard should, inter alia, be capable of consistent, predictable application; not require courts to make political judgments or decisions on ‘high policy’ that are not covered by legal expertise; and protect courts from the damage to their reputation for independence and neutrality that would result from being enmeshed in political controversies.

The Inner House’s standard of ‘improper purpose’ in Cherry is nowhere near being a standard that courts could apply consistently and predictably, relying on legal expertise rather than political considerations, to prorogation and in similar contexts. The Supreme Court, by avoiding overt inquiry into the Prime Minister’s true purposes, sidestepped the articulation of a specific standard of review. It did this by finding that the Prime Minister did not provide ‘any reason — let alone a good reason’ to prorogue for five weeks.

But that is a spurious conclusion. The Court cites John Major’s ‘unchallenged’ evidence that a government typically needs four to six days to prepare a Queen’s speech, and then says that Nikki da Costa’s memorandum, which proposed the timetable for prorogation, ‘has much to say about a new session and Queen’s Speech but nothing about why so long was needed to prepare for it’ (para 59, emphasis added). What the Court omits is that the memorandum includes detailed reasons (listed in para 17) that justify the choice of particular beginning and ending dates for prorogation and the Queen’s Speech. These include the usual three-week period of recess for party conferences in September and other factors separate from the sheer number of days needed to prepare a Queen’s Speech: the abnormally long Parliamentary term; the need to balance the time to ‘wash up’ pending bills with time to prepare new legislation; and the timing of the EU Council meeting (17-18 October), with the need for Parliament to sit before and after it. It is erroneous to say that the evidence failed to provide ‘any reason’ for the prorogation.

Perhaps the Prime Minister had a ‘bad’ or ‘improper’ reason, in the sense of impeding Parliamentary scrutiny without reasonable justification. But to determine this the Court would have to inquire directly into the Prime Minister’s reasons as the Inner House did, and make decisions about what counts—and what does not—as a legitimate reason for prorogation, and what length of time is acceptable without impeding Parliament’s capacity to hold the executive accountable. These issues are inescapably political in nature, and until Miller (No 2) they were under political control.

The difficulty of adopting any judicially manageable standard can be further seen through a comparative and historical perspective. Recent commentators have analysed the political and tactical considerations at play in past prorogations in the UK, Canada and Australia. John Major’s own prorogation of nineteen days before the 1997 general election is a possible example. Opposition MPs, including Tony Blair, charged that his timing was tactical, to postpone parliamentary scrutiny of an upcoming report of an inquiry into allegations of cash-for-favour scandal until after the election. In a heated exchange in Parliament (see transcript and video here), Major claimed that he knew nothing of timing of the report. No good answer was provided to the point that an adjournment rather than prorogation would have accomplished Major’s purported end while allowing the report to be received in committee. Under Miller (No 2), a lawsuit could have been launched to test the length of the prorogation and whether Major had a reasonable justification for it.

Future cases will raise many issues of this nature, demonstrating the immense difficulty of finding judicial and manageable standards. Public law scholars should consider whether the ordinary administrative law of judicial review is suited for this context. As the High Court noted, this body of law was developed to provide remedies to individuals affected by administrative decisions, not to exert authority over affairs of state. What legal limits, if any, need to be placed on the power to prorogue and similar exercises of the prerogative is not a matter judges are well suited or constitutionally authorised to decide. The path taken in Miller (No 2) leads not only to politicisation of the judiciary but to court-driven polarisation of politics. Courts in the UK should consider Justice Breyer’s warning in Bush v Gore that the US Supreme Court was about to ‘risk a self-inflicted wound – a wound that may harm not just the Court, but the Nation’ and recall, as he did, Justice Brandeis’s dictum: ‘The most important thing we do is not doing’.

Paul Yowell is Associate Professor of Law, University of Oxford.

(Suggested citation: P. Yowell, ‘Is Miller (No 2) the UK’s Bush v Gore?’, U.K. Const. L. Blog (7th Oct. 2019) (available at https://ukconstitutionallaw.org/))