Constitutional Law Group October 7, 2019 Judicial review, UK government, UK Parliament

Steven Spadijer: Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy

Introduction

Reading the recent Miller No. 2 decision you would be forgiven in thinking that Boris Johnson had the chutzpah to advise the Queen to unilaterally decree a whole range of new criminal offences (Proclamations) – all under the guise of the prorogation power.

Indeed, the Miller No. 2 decision paints itself as pure orthodoxy. We are reminded that it is the emphatic duty and quintessential task of a law court to define the scope of a prerogative power, clearly a justiciable matter. And the scope of the prorogation power, so it turns out, is now limited by this rather innocuous-sounding principle (at para [50]):

A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation 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 the supervision of the executive.

The above principle certainly has some superficial appeal. But do not be fooled. This accountability principle, as I shall call it, is as revolutionary as it is dangerous. In what follows, I want to identify three key flaws of the Miller No. 2 decision.

Flaw 1: Ignoring Inconvenient Precedents

The first curious aspect of the Miller No. 2 judgement is its decision to simply ignore centuries of historical precedent. Yet, surely, any sensible discussion of the scope of the prerogative power should look at any relevant usage since time immemorial, particularly when confronted with exceptional circumstances (R v Hampden (1637) 3 State Tr 826; AG v De Keyser Royal Hotel Ltd). So, did vice-regal officers and monarchs, old or new, drafters of constitutions throughout the Commonwealth from India to Jamaica, from Barbados to Australia, or leading political adversaries to any partisan prorogation ever suggest that there were judicial, as opposed to prudential political, constraints on the exercise of this power?

Of course not. The constitutional prerogatives of summoning, proroguing and dissolving parliament were “very large”: FW Maitland, The Constitutional History of England (1908) 422. Historically, prorogation had been used to stop bills that the Sovereign and his advisers abhorred economically to stopping investigations which frustrated the ability of the Crown to successfully engage in international negotiations: see, eg, Charles Davison, “Prorogation: A Powerful Tool Forged By History” (2009) 34 Law Now 13, 14; William Wade, Christopher Forsyth and Ivan Hare, The Golden Metwand and The Crooked Cord (1998) 73; Wouter Troost, William III: The Stadholder-King (2005) 149; Kara Dimitruk, “I Intend Therefore To Prorogue” (2018) 22 European Review of Economic History 261-297.

Reflecting this historical background, a prorogation order could be issued whenever the Sovereign (or her representative) thought to it to be “necessary” and “expedient”: see, eg, The Charter of Massachusetts Bay, 1691; Samuel Morison, Sources and Documents Illustrating the American Revolution (1923) 89; Erskine May, A Treatise on the Law, Privileges, Proceedings and Usages of Parliament (1868) 45 (“Parliament, as it has been seen, can only commence its deliberations at the time appointed by the queen; neither can it continue them any longer than she pleases”); NSW Constitution, s10A. and 11; see also Northwest Ordinance, 1787, s11; Louisiana Ordinance, 1804, s4.

Of course, today, this broad power is, by convention, exercised under ministerial advice; the pleasure of Her Majesty to prorogue will in practice happily coincide with the pleasure of the Prime Minister. Critically, however, nothing is said about prorogation when “the court pleases”; nobody from Coke, to Blackstone, to the American Colonists, to May, to Maitland, to Dicey ever suggested that the power to prorogue was limited by the displeasure of the courts.

Indeed, historically, when the prorogation power was abused, those aggrieved did not rely on the courts to enforce the political conventions of responsible government. Rather, representatives of the people asserted parliamentary (or popular) sovereignty, ex post facto, by legislating to regulate the power to prorogue. After the power of prorogation was condemned in the Declaration of Independence, the American Colonies responded by strictly regulating, or altogether abolishing, the prorogation power: see, eg, Virginia Constitution, 1776, Article X; Massachusetts Constitution, 1780, Article V; Article VI; New York Constitution, 1777, Art. XVIII; Delaware Constitution, 1776, Art. 10; South Carolina Constitution, 1776, Art. VIII; South Carolina Constitution, 1778, Art. XVII; Maryland Constitution, 1776, Art. XXIX; Federalist No. 69 (“The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes”).

Likewise, in the UK, when prorogation was abused, the Westminster Parliament responded accordingly: see, eg, 16 Car. I, c. 6-7 (Triennial Act 1641) (“Noe Parliament henceforth to bee assembled shall be dissolved or prorogued within fiftie dayes att the least after the time appointed for the meeting thereof”). For a recent Australian legislative response to a rogue prorogation see NSW Constitution Amendment (Prorogation of Parliament) Act 2011.

Miller No. 2 gets it exactly right when it observes (at [41]) that the royal prerogative powers have been made increasingly subject to the overriding powers of a democratically-elected legislature. That insight is particularly pertinent here, given prorogation has always been understood to be an inter se matter between the Crown and Parliament, requiring no interjection by the courts, and given Parliament itself knows how to aggressively respond to any abuses involving the prorogation power.

Moreover, as Geoffrey Cox points out, if Miller No. 2 is right, virtually every prorogation in the last 50 years was also probably invalid. Indeed, the court never quite tells us: did John Major violate the principle of accountability when he chose to prorogued Parliament in 1997 following the cash-for-question scandal? Did PM Stephen Harper violate the principle of accountability when he prorogued Parliament in order to terminate an inquiry into the treatment of Afghan detainees? Did Dalton McGuinty, in 2012, violate the principle of accountability in order to terminate an inquiry into the controversial cancellation of the construction of two gas-fired power plants? What about the various attempts to defer the result of a motion of no-confidence? Do partisan prorogations resulting from intercameral conflict violate the principle of accountability? The accountability principle may have been violated several dozens of times across British Empire or the Commonwealth in the last 200 years.

Two related points thus emerge. Firstly, the prorogation power was plenary in nature; it acknowledged no legal limits, except those imposed by statute or (in case of various Commonwealth realms) an express constitutional requirement – for example, that Parliament must sit at least once every six months. Secondly, when the power of prorogation was allegedly abused – from Charles I to Charles II to George III to arguably PMs of recent vintage – no major players (virtually no one) thought prorogation was legally limited by some vague government accountability principle, although such an argument could easily have been made. The remedy was always political, not legal in nature.

Thus, far from defining the scope of the prerogative, the Court redefines the true scope of the prerogative, for it is a distinctive and useful feature of the prorogation power that it is a constitutional fire extinguisher. Prorogation can be used to cool tensions, to defuse heated passions, to foster repose and reflection in recalcitrant MPs or Parliament; it was a cheaper alternative to dissolution, deployed when the Crown, as head of the executive, did not see eye-to-eye with Parliament over contentious questions of high policy, or did not want it to exercise its investigative constitutional functions for whatever reason. These inconvenient facts of history might explain why the judgement is high on rhetoric and bereft of any historical precedent, either local or international, old or recent. The court might not wish it to be so, but the result is a disingenuous decision, a judicial emasculation of the very power the court was attempting to construe. But when judges look to vague made-up principles, rather than history, they just look into themselves.

Flaw 2: A Politicised Court

The Court tells us this case is one-off and exceptional (paras [1] and [57]). Do not believe it; eternity is a long time. Indeed, recall just recently, in Miller No. 1, we were assured (at [146]) that judges are neither the parents nor the guardians of political conventions; they are merely observers who can recognise the operation of a political convention but cannot give legal rulings on its operation or scope. And recall Lord Reed warned us (at [240]) that legalisation of political issues may be constitutionally inappropriate and become fraught with risk, not least for the judiciary. Oh, how things quickly change under our new Brexit-is-Different jurisprudence. The Court has now moved from being a passive observer of political convention to an active player, indeed umpire, of political convention and etiquette. It has attempted to do indirectly what it could not do directly. That is, it has sought to enforce legally unenforceable conventions of responsible government by distilling a general principle of accountability implicitly underpinning those conventions (executive accountability), and then transforming that general principle into a legally enforceable one against the Crown, a legal principle that almost everyone who ever lived had somehow missed. Was the 2008-09 Harper prorogation unlawful? Is it now unlawful for a socialist PM, faced with a minority government, to prorogue Parliament to prevent a bill privatizating the NHS from working its way through Parliament, following a referendum saying no to privatization?

Full marks for creative thinking; but under the guise of this new-found principle, requiring a “reasonable justification” for any future prorogation, the court, by quashing a prorogation order in toto, can indirectly decide everything from what legislation ought to be voted on by Parliament to who ought to form government when a governing-coalition fractures. In attempting to prevent alleged executive overreach the court has simply sowed the seeds for further judicial overreach. Under the guise of a vague government accountability principle, allowing the Courts to balance the interests of the executive against that of Parliament, the Court can now readily interject itself into the political fray, acting as the new Great Arbiter and King-Maker within the policy-making process.

Flaw 3: Ignoring the Crown and Political Constraints

Another striking aspect of the decision is its self-aggrandizing nature; there is no mention of any other body or person to act as defender of Parliamentary sovereignty. The court sidelines, indeed usurps, the role of the Crown in assessing the suitability of any prorogation. To that end, the court conveniently says it has “no view” on whether the Crown must accede to Ministerial advice in every circumstance (para [30]) whilst being prepared to recite the potential extreme “abuses” associated with the power of prorogation (para [42]-[43]). But surely any intelligible discussion on this point requires some discussion of the reserve powers. If the reserve power to refuse a rogue prorogation exists, as precedents and authorities, including English authorities (cited in Chapter 9 of the Veiled Sceptre by Anne Twomey) all suggest, then these extreme hypotheticals evaporate. But such a meaningful discussion is ignored, I suggest, because it is inconvenient; the court wants to paint itself, rather than the Crown, as the new, glorious guardian of the principles underpinning responsible government.

But the unsatisfying nature of the decision does not end there. In response to the suggestion that Parliament must meet in order to fund itself, the Court suggests these practical constraints offer “scant reassurance” against abuse. But why? Why would civil servants (including those who advise the PM!) not being paid, ongoing media scrutiny, vigorous protests and dissent from the opposition, and possibly even within the governing party, and the moral authority of a Sovereign insisting that Parliament should convene in face of protests and civil unrest together constitute a scant reassurance? Apparently, only this court can save us – never mind that in 1909, in Western Australia, Governor Gerald Strickland managed to wisely refuse a prorogation, given supply would run out before Parliament would reconvene.

And, surely, if the government wants to be re-elected again it must reconvene Parliament in order to show voters how effective it is at implementing its prior campaign promises, thereby giving people a reason to vote for the government again, lest the incumbent leader face a leadership challenge But, again, why is the incentive for re-election a scant reassurance?

And why could Parliament not just pass a law, like it has many times before (see above), limiting the power to prorogue? Again, there are no answers given to this question.

What Now?

After the next election, Parliament should simply enact a statute which says:

Parliament shall be prorogued whenever Her Majesty thinks fit.

No court shall have any jurisdiction whatsoever to adjudge the legality of any prorogation proclamation, purported or otherwise, made by Her Majesty. Any decision to prorogue Parliament, purported or otherwise, and the advice, if any, requesting that Parliament be prorogued, shall not be challenged, declared invalid, impeached, questioned, quashed or impugned in any way whatsoever in any Court of the Land.

For the purposes of the Article 9 of Bill of Rights, prorogation shall be deemed to be a proceeding in Parliament.

The American people cannot easily overrule the US Supreme Court. Nor can a single member of the EU unilaterally overrule a decision of the ECJ. But, luckily, one of the happy incidents of living in the UK, as Miller No. 2 reminds us (at [41]), is that the UK Parliament is supreme – indeed, so supreme that it can prevent the UK Supreme Court from becoming a rival to the US Supreme Court, with in its ever-inflated desire for political attention, authority, and relevance.

Steven Spadijer, DPhil candidate, Oxford University

(Suggested citation: S. Spadijer, ‘Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy’, U.K. Const. L. Blog (7th Oct. 2019) (available at https://ukconstitutionallaw.org/))

17Comments

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1

Adrian Carter, PhD student, King's College, London on October 7, 2019 at 10:10 am
Reply

Might I suggest an alternative to Mr Spadijer’s What Now? – that Parliament passes an Act making prorogation subject to the passage of a resolution approving it by the House of Commons. That would take the courts out of the picture and simultaneously end any ambiguity about the existence of an unusable reserve power while recognising that the executive should not be able to frustrate the will of an elected House of Commons.
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  Steven Spadijer on October 7, 2019 at 9:17 pm
  Reply
  
  (See also my replies below).
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  Steven Spadijer on October 8, 2019 at 4:05 pm
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  Initially, I had no problem with the House of Commons first giving its consent prior to any prorogation, like in some of the early American state constitutions (eg Virginia and Massachusetts).
  
  However, upon greater reflection, if any limitation should be imposed, I support something akin to the New York approach: a prorogation of no longer than 60 days (that is, a generous upper limit on how long the legislature can be prorogued- though some Carribbean require Parliament meet once every six months). The 60 days (or more) would not be limited to events involving intercameral conflict, but intracameral conflict as well.
  
  Why do I say this? Sometimes, like during the 2008-9 Harper prorgation, coalition partners might in the “heat of the moment” go a bit wild, requiring an extended “cooling-off” period to allow tempers to dissipate. A prororogation allows such MPs to reflect carefully and perhaps realise any alternative coalition might be unwise, politically or otherwise. Nor does it engage with NHS privatisation hypothetical: sometimes the executive might be on the side of democracy (defined to include popular lawmaking) and the House or Commons against it (eg, MPs might support privatisation, even though their electors do not, and they might well be retiring at the next election, so, frankly, they do not give a hoot what those who elected them think). Moreover, a lengthy prorogation gives representatives a chance to go back to their constituents, meeting them face-to-face, and seeking advice from them on the wisdom of their proposed course of action. In times of pandemics, or political meltdown, a lengthy prorogation may be appropriate. As Alexander Hamilton points out, the power can be used during “very important occasions”.
  
  Thus, requiring the House to give its binding input deprives the prorogation power of its utility and vitality, namely, its potential use as a “constitutional fire extinguisher” and as a means to promote deliberation and a robust exchange of ideas, whatever a transient or passionate majority in the Commons might at any random moment think.
  
  To be sure, I do support standing orders which allow committees to sit during a prorogation and new standing orders that can give life to any bills killed by prorogation (ie “carry over” if a certain number of members in either House vote to resurrect a bill). But if there is any additional limit, it ought to be a generous bright-line time limit to allow for a meaningful cooling-off period.
  
  However, even then, I think the remedy ought to be political, not legal in nature. If a PM is so lawless to flout the plain requirement that Parliament must sit once every six months, then I suspect the general public will boot him or her out of office (and the Crown would probably, if not certainly, refuse such a lengthy prorogation anyways: cf. the 1981 Tasmanian prorogation precedent, where a 6 month prorogation was reduced to 3 months, thanks to vice-regal intervention, even though the upper limit was Parliament must sit once every 12 months).
  
  Thus, I do not see the circumstances requiring judicial intervention involving the power to prorogue. Basically, I would leave it all to politics, and merely impose a minimal “regular session” provision found in most Commonwealth Constitutions. Annexed to that provision would be my ouster (really a “no jurisdiction”) clause, quoted above.
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Michael Vickers on October 7, 2019 at 12:06 pm
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‘Parliament shall be prorogued whenever Her Majesty thinks fit.’
Like turkeys voting for Christmas.
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  Steven Spadijer on October 7, 2019 at 9:11 pm
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  See my comment below to clarify exactly what I propose (alas, word limits are strictly adhered to even in blogs!)
  
  This above wording is typical in most Westminister democracies, i.e. the Crown can prorogue whenever it “thinks fit” (see the Victorian and Tasmanian Constitutions), deems “expedient” (NSW Constitution) or “necessary” (early American Colonial Charters). Despite the sweeping wording on paper, such powers are in practice exercised under ministerial advice (hence, the reference to advice).
  
  Yet, unlike the turkey, parliamentary democracy does not end up in the oven; not least because certain time limits on the power are imposed (see, eg, the NSW Constitution quoted above or those of various Carribean realms) and the Crown, through the art of persuasion, limits prorogations which are too crazy (see ch 9 of the Veiled Sceptre- particularly the precedent from New Zealand in 1911). Thus, the ouster clause would exist, albeit in the context where (1) there would be a maximum upper limit for how long parliament could be prorogued (90 days if you prefer the New York model; 6 months if you prefer the Caribbean model), coupled with (2) the reserve power of the Crown (cf. the Tasmanian precedent of 1981-2, where a proposed 6 month prorogation was reduced to 3 months, even though the maximum upper limit as to the length of any prorogation, under s11 of the Tasmanian Constitution, required Parliament meet once every 12 months).
6

Tony on October 7, 2019 at 9:12 pm
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This article is unpersuasive for a number of reasons.

Regarding “Flaw 1” there is abundant authority for the judicial control of executive power starting with the Case of Proclamations, which has become far more authoritative than R v Hampden (1637) 3 State Tr 826. Because prerogative powers only have legal existence by virtue of the common law, such powers are under the [complete] control of the courts.

Examples from the Commonwealth and the USA are irrelevant because they are other jurisdictions – the Bills of Rights/Claim of Right do not apply to them. In addition, as far as modern statutory control of prerogative powers is concerned, the UK has enacted the Human Rights Act 1998. This subjects ALL “public” executive powers (whether prerogative or statutory) to GENERAL REGULATION by giving statutory force to the European Convention of Human Rights [ECHR]. Section 6-1 (“Acts of public authorities”) states that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Section 6-3(b) defines a “public authority” as “any person certain of whose functions are functions of a public nature”. This description includes the Queen as the UK’s Head of State and section 22-5 explicitly states: “This Act binds the Crown.” It also includes the Prime Minister and the Privy Council, who advise the Queen.

This means that the exercise of ANY prerogative power which is incompatible with a convention right is unlawful and can be nullified by the courts because of the wide powers granted to the judiciary by section 8-1: “In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”

At a stroke, therefore, the Human Rights Act put an end to any remaining notions that prerogative powers were non-justiciable.

Applying this to excessive prorogation periods, Article 3 Protocol 1 of the ECHR states: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Although the UK has held elections for MPs in Parliament, it has not held elections for members of the UK government (they are appointed). During prorogation, the UK government can continue legislating by statutory instrument, so the UK government (in effect) becomes the UK legislature.
So, proroging Parliament for any significant period of time which prevents it from functioning as the UK’s legislature is incompatible with Article 3 Protocol 1.

Regarding “Flaw 2”, it should be noted that any legal matter can become a political matter. Sometimes criminal cases become highly political because they are highly controversial. It is the very essence of the function of the judiciary to interpret the law without regard to the opinions of those outside the court. This is why the phrase “without fear or favour” is part of the judicial oath. In effect, it means “without regard to any political reaction to judicial decisions”. This implicitly acknowledges that judicial decisions will often have political dimensions.

Regarding “Flaw 3”, the following contention falls into the familiar trap of assuming a concept which actually needs to be proven: “…there is no mention of any other body or person to act as defender of Parliamentary sovereignty. The court sidelines, indeed usurps, the role of the Crown in assessing the suitability of any prorogation…”

As the Case of Proclamations ruled, the Crown’s powers are defined by law, which means that it is the role of the courts to regulate those powers. It’s simply not possible to have a power which is not regulated by law because it otherwise would not be a power. Regarding the role of the Crown, the case does not displace the “reserve” powers of the Queen – it regulates how those powers may be used. There’s nothing unusual about this because of the rule in the Case of Proclamations.

In the modern world, time is often of the essence – even in legislative matters. The Supreme Court has ruled time and again that Parliament is the senior constitutional body, and by expressly limiting the ability of the executive to shut it down it has simply given effect to this basic principle of the UK’s constitutional system.
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  Steven Spadijer on October 8, 2019 at 4:11 pm
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  Tony, thanks for the comment. I am unpersuaded.
  
  Firstly, no one is disputing that courts can examine the scope of the power. What I attempt to do is to chronicle the sheer historical breadth of the power from 15th century to the 20th century (which is one way of determining the scope of the prerogative- usage!). The motif is clear: questions of expediency and necessity to prorogue were judged by the executive alone. Prior to Miller No 2, I find no authority that said prorogation was ever limited by a “reasonable justification” standard. I only find words of breadth. That is the key issue I am addressing, NOT the HRA (I am analyzing the judgement, not alternative arguments like yours!) As far as I can see the power to prorogue is, as Maitland observed, “very large”. Prorogation was deployed historically by the Crown so MPs could hopefully engage in reflection, deliberation, log-rolling, and further consultation with the general public (returning MPs to their constituents) over questions of high policy. Shouting that Parliament is the “senior” body tells us little as to how the two the legislature and executive ought to interact; that was an inter se matter regulated only by statute, even in the event of abuse- from Charles II in 1676-77, to 1770s in the US Colonies, to today in various Commonwealth realms. Also note nothing prevents Parliaments from passing legislation saying committees can continue to examine statutory instruments made during a prorogation.
  
  Secondly, even with the Bill of Rights of 1689, Parliament only held that Parliaments must be held “frequently” (whatever that means). During the Long Prorogation of 1677 all sides agreed the power was unlimited unless subject to some statutory limitation (eg certain Edwardian statutes). Even after the Bill of Rights, Parliament passed a law requiring that Parliament only sit once every three years. Some commentators, even then, thought the power was still plenary subject only to this statutory limitation: see, eg “Annual Parliaments and Universal Suffrage” (1817) Edinburgh Review p. 132 onward; Common Consent, The Basis of the Constitution of England (1817) p. 43 onward. Thus, I am not sure ranting about the Bill of Rights gets you very far.
  
  Thirdly, no one seriously argued the Human Rights Act of 1998 decides this case; it is easy to see why. Elections still occur; they are still by secret ballot; the plain words of the protocol are satisfied. I find nothing in the legislative history of that provision to suggest otherwise.The protocol you cite clearly speaks to what happens, ex ante, to constitute the Parliament (i.e. manner of election), not what happens once Parliament is constituted (ie what is done inside Parliament). I would have also thought something like what you suggest would require clear words to delimit the ambit of any prerogative; it would not be left to vague conjecture. That said, please cite an authority which gives the quoted protocol such a SWEEPING interpretation you suggest, and I will consider it.
  
  Fourthly, true any matter can have political consequences, but that is not the point: there is no judicially manageable standard by which one can determine whether Harper ought to go on to form government or whether a socialist PM ought to prorogue Parliament to enforce an election manifesto promise or a referendum result saying no to privatization. By contrast, there are clear textual standards as to whether a criminal offense has occurred as well as rules of evidence. Applying the “reasonable justification” test will boil down to little more to the political views of the justices. That is the issue we are discussing. Your argument also proves too much: why not examine whether dissolution has a “reasonable justification”, or a declaration of war has a “reasonable justification”, or whether entering into, or out of, a treaty has a “reasonable justification”. The standard is purely political, left for other branches of government, not the judiciary. It is not about consequences, but also CRITERIA (that I like Stephen Harper and Harper ought to have a chance to continue in government by engaging in horse-trading is not really a legal criteria).
  
  Finally, true it is the power of the Crown is defined by law, but that tells us nothing about whether the Crown ought to enforce certain conventions (eg during any prorogation, supply should not run out). The court says NOTHING meaningful about this. But, at the same time, recall the court cited extreme “abuses” which might occur. But as soon as we see the reserve powers exist, those abuses are themselves unlikely in the extreme. That is what I am addressing – the failure to see the Constitution as a whole, with the special place of the Crown in it. Now any advice the PM gives to the Queen can simply be issued with this caveat: “no, do not worry, this is outsourced to the courts, they can decide, just sign here”. But one reason you might want the Crown to decide this question is the Crown will say no only and thus intervene if a super-majority of the populace sees there is a manifest violation (eg prorogue Parliament for 14 months!) By contrast, a court , I suspect, will intervene where opinion is sharply divided, where a bare majority, if that, agrees with the court, Bush v Gore style.
  
  All the best,
  
  Steve
  
  (corrected version)
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  georgiouleon91 on October 9, 2019 at 12:54 am
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  Completely agree with all of the above and I have been making the same points repeatedly since the case (and I’m a Brexiteer). I would also go further and say that while Cherry/Miller a ruling based on orthodox legal principles established for 400 years, it wouldn’t matter if the courts did, in a revolutionary way, invent a further restriction out of thin air because the common-law system is literally judge-made law — just as the residue of prerogative powers is itself a judicial invention, not to mention the entire corpus of tort law and limited liability in corporate law. The Supreme Court can overrule precedent — look at Donoghue v Stevenson compared to all the precedent on a general, non-contractual duty of care before it, most proximately in time Mullen v AG Barr & Co Ltd.
  
  To Mr Spadijer and others disapproving of the outcome, I ask one hypothetical question: is the Prime Minister permitted to prorogue, for any reason, Parliament for two years? To me, the answer is very clearly no, and it would be ludicrous for a court to declare such a matter non-justiciable. Once you accept that the prerogative must be restricted, it is concomitant that firstly, the issue is justiciable, and secondly, you must work out what the restrictions to its exercise are. It is reasonable and in keeping with precedent that the frustration of the Constitution is one such restriction — we no longer live in an absolute monarchy.
  
  A more interesting criticism that nobody else seems to be making is: accepting the Court’s reasoning on justiciability and the restrictions on the exercise of the prerogative, is it a fact that Boris Johnson’s advice to prorogue in this specific instance was such that parliamentary sovereignty and executive accountability were frustrated? A case can be made that it was not, and thus that the Court’s conclusion, but not the steps it took to get there, was wrong.
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    Steven Spadijer on October 9, 2019 at 10:09 am
    
    Dear georgiouleon91,
    
    In response to your question, could the PM prorogue Parliament for two years? Absolutely, legally, he could (subject to statute). But in a few responses are worth noting.
    
    Firstly, the reserve power of the crown; prorogations of six months, let alone two years, have been aggressively shot down by vice-regal officers, even in places where Parliament could legally be prorogued for a year (eg Tasmania). It also totally ignores the need for supply (and the havoc resulting from a failure to pay the civil servants on the payroll supporting the PM) and the political constraints identified above. The remedies are political. There are not mere “scant ressaurances”.
    
    The issue, moreover, is not possibility of abuse, but probability. With enough imagination I am sure I can create extreme hypotheticals involving plague, ongoing bloody fist-fights in Parliament, and total war to justify a prorogation of even greater length than 2 years. The argument, I fear, proves too much. Could the PM nuke a country he does not like? Could the Queen appoint a random commoner as PM at her own personal whim? Could the PM declare war simply because he does not like the hair colour of a foreign leader? Could he pardon a first-degree murderer? Could he (prior to House of Lord reforms) have swamped the upper house with loyal party hacks? These broad de jure powers of absolute monarchy are now the de factors powers of the PM, regulated by convention. All power can be abused; nothing is easier to imagine than certain abuses, if a PM abandons reason completely, and the nexus between them and their constituents evaporates. The point here there are conventional constraints on just as awful (even more awful) prerogative powers; our constitutional jurisprudence should not be based on fanciful worse-case scenarios that might never occur.
    
    Secondly, in 1676-7 Parliament was prorogued for 15 months. The argument then, as now, was not any implied “reasonable justification” limit, but purely statutory limits. Actually, I do not think Edwardian statutes requiring Parliament to meet once a year have been repealed (I am still looking into that!) – so that might resolved your question! There are other statutory provisions regulating prorogation ( I included these but they were edited out due to word length limits). Moreover, Parliament right after the 5 week prorogation could set an upper limit to any prorogation – see above my earlier comment supporting such an upper limit (like in most Commonwealth realms). You posted your comment before my qualifying comment appeared.
    
    Finally, it is all very well to say the common law, in a glib pollyannaish fashion, does pluck ideas of thin air (often in cases involving weighty individual liberty interests, eg Proclamations, not inter see matters of state). But when the law does evolve it does so with a certain METHOD: history/precedent plus logic plus prudential arguments. That is the characteristic of virtually all the prerogative cases I have read (there are many). I argue the court here flouts this methodology; it ignores the historical breadth of the power (identified by Maitland, the 1676-7 prorogation debate, and other Commonwealth realms) (history); ignores the obvious practical limits on the extreme hypotheticals recited (logic); exposes the court to Bush v Gore territory (frankly, Miller 2 is even worse: the test is so malleable it can empower courts to decide what laws ought to be voted on by parliament as well as who should form government) (prudential).
    
    BTW, I agree with your last point.
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Tony on October 9, 2019 at 9:39 am
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Exactly – “it wouldn’t matter if the courts did, in a revolutionary way, invent a further restriction out of thin air because the common-law system is literally judge-made law”. When a common law country, such as the UK, has an uncodified constitution this means that judges can (and should) “invent” new rules of constitutional law as well as tort law. They should do this when they determine it is necessary by applying fundamental legal concepts.
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  Steven Spadijer on October 10, 2019 at 9:26 am
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  Dear tony and georgiouleon91,
  
  In response to your question, could the PM prorogue Parliament for two years? Absolutely, legally, he could (subject to statute). But in response a few points are worth noting.
  
  Firstly, the reserve power of the crown; prorogations of six months, let alone two years, have been aggressively shot down by vice-regal officers, even in places where Parliament could legally be prorogued for a year (eg Tasmania). It also totally ignores the need for supply (and the havoc resulting from a failure to pay the civil servants on the payroll supporting the PM) as well as the political constraints identified above. The remedies are political. There are not mere “scant ressaurances”.
  
  The issue, therefore, is not possibility of abuse, but probability. With enough imagination I am sure I can create extreme hypotheticals involving plague, ongoing bloody fist-fights in Parliament, and total war to justify a prorogation of even greater length than 2 years. The argument, I fear, proves too much. Could the PM nuke a country he does not like? Could the Queen appoint a random commoner as PM at her own personal whim? Could the PM declare war simply because he does not like the hair colour of a foreign leader? Could he pardon a first-degree murderer? Could he (prior to House of Lord reforms) have swamped the upper house with loyal party hacks? These broad de jure powers of absolute monarchy are now the de factors powers of the PM, regulated by convention. All power can be abused; nothing is easier to imagine than certain abuses, if a PM abandons reason completely, and the nexus between them and their constituents evaporates. The point here there are conventional constraints on just as awful (even more awful) prerogative powers; our constitutional jurisprudence should not be based on fanciful worse-case scenarios that might never occur.
  
  Secondly, in 1676-7 Parliament was prorogued for 15 months. The argument then, as now, was not any implied “reasonable justification” limit, but purely statutory limits. Actually, I do not think Edwardian statutes requiring Parliament to meet once a year have been repealed (I am still looking into that!) – so that might be a response to your hypothetical. There are other statutory provisions regulating prorogation ( I included these but they were edited out due to word length limits). Even so, Parliament right after the 5 week prorogation could set an upper limit to any prorogation – see above my earlier comment supporting such an upper limit (like in most Commonwealth realms). You posted your comment before my qualifying comment appeared.
  
  Finally, Tony, it is all very well to say the common law, in a glib pollyannaish fashion, does pluck ideas of “thin air” (often in cases involving weighty individual liberty interests, eg Proclamations, not inter se matters between Crown and Parliament). All the more reason we should CRITICALLY evaluate the reasoning of the court; when the law does evolve it typically does so with a certain METHOD, it it examines history/precedent plus logic plus using prudential arguments. That is the characteristic of virtually all the prerogative cases I have read (there are many). I argue the court here flouts this methodology; it ignores the historical breadth of the power (identified by Maitland, the 1676-7 prorogation debate, and other Commonwealth realms) (history); ignores the real practical limits on the extreme hypotheticals recited (logic); exposes the court to Bush v Gore territory. In fact, frankly, Miller 2 is even worse (the test is so malleable it can empower courts to decide what laws ought to be voted on by parliament as well as who should form government) (note a prudential critique).
  
  (Correct final version)
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Gary Phillips on October 9, 2019 at 3:40 pm
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Sorry typo in the date of the Triennial Act 1694 not 1697
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Gerard Allan on October 12, 2019 at 4:20 pm
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The court treats parliament as if it was in need of protection. When in fact it is perfectly capably of looking after its own interests. We can see this very clearly in this case. Parliament had hundreds of years to control prorogation by statute and in this case they actually put into statute that Parliament should have be sitting in the middle of October. If Parliament had wants to constrain the Executive even more that could have chosen to do that, but they did not.

The Supreme Court would have been better to follow the High Court who seemed to have a better understanding of politics. Both the government and opposition where actually happy with the prorogation each for their own political purposes. The government to show how determined they were, the opposition to hide how divided they were. The court made much of the importance of this particular time for parliament to act as a “legislature and as the body responsible for the supervision of the executive”. However once parliament resumed what did they do with that time? Very little. Has the court done itself, the country, or even parliament a service? I think not.

Fools rush in where angels fear to tread.
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  Steven Spadijer on October 14, 2019 at 9:24 am
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  Hear, hear. Well put Gerard. The first day Parliament reconvened they just spent time screaming at each other and talking about themselves. And the rest of the time has just been a vapid, raving repetition of the same arguments we have encountered in the late 3 years. Welcome to Groundhog Day.
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  derryvickers on October 14, 2019 at 9:48 am
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  It could be that Miller (2) was unnecessary as the Bill of Rights of 1689 set Parliament above the Executive (ie The Queen in Parliament). Nevertheless Miller (2) confirmed this position as it was required to do.
  The fact that Parliamentary MPs have not followed the confirmation up shows that the Parliamentary mix of MPs/Parities in Parliament today is a mess.
  MPs should be chosen by Proportional Representation (as in Scotland). I accept this is no guarantee that current problems will evaporate but at least some of the anomalies of the current situation will be truly exposed for what they are: A new Reform Act.
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    Bob Templeton on January 1, 2020 at 2:39 pm
    
    It did no such thing. The Queen can already refuse royal sent to any and all Acts if she so wishes. This was already confirmed by SC as being considered to fall under Article 9 Bill of Rights.
    
    Just a lazy powergrab. Typical tripe we get from Lady Hale. Where have all the good judiciary gone I wonder? Much like our legal proffession in general.
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Tanzil Chowdhury: Miller (No 2), the Principle-isation of Ministerial Accountability and Military Deployments – UK Constitutional Law Association on October 24, 2019 at 2:00 pm
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[…] convention of ministerial accountability? Several authors appear to suggest that is has (here, here and here). Indeed, conventions were given rather peculiar judicial treatment in Miller (No 1) not […]