The Supreme Court, Prorogation and Constitutional Principle

Abstract

The Supreme Court gave its decision in Miller and Cherry, finding that the Prime Minister’s decision to prorogue Parliament was null, void and of no legal effect. The decision was unanimous, 11-0, with no separate opinions. The Supreme Court thereby overturned the result in the Divisional Court in Miller, and upheld the result of the Scottish Court of Session in Cherry. The Supreme Court’s ruling has unsurprisingly generated much comment. A number of commentators have supported the judgment. I come within this group, as will be apparent from the subsequent discussion. The decision was in my view correct and compelling. The ruling has also attracted adverse comment. It is not feasible within the space of a law review article to discuss to all such contributions individually. The focus of the subsequent discussion is on three longer critiques, which address all the principal issues adverted to in the critical literature. The idea that prorogation should be subject to judicial review was strongly challenged by Richard Ekins shortly prior to the Supreme Court’s ruling. Martin Loughlin has criticized the Supreme Court’s ruling in the form of a hypothetical appeal to a ‘UK Constitutional Council’. John Finnis was sharply censorious, regarding the judgment as unconstitutional and unwarranted. It is axiomatic that all judicial decisions should be subject to evaluation in order to test the soundness of the reasoning and result. It is therefore proper that such contributions should be forthcoming. The tone and language of John Finnis’ contribution is nonetheless regrettable in equal measure. It is equally axiomatic that academic critique should be subject to close analysis to test the veracity of the argument. The more far-reaching the critique, as judged by its substance and language, the better the argument must be. The judgment was not unconstitutional, it was not wrong in law and the critique is not warranted, as will be shown in the ensuing analysis, the structure of which is as follows. The article addresses the four key issues articulated by the Supreme Court, which were as follows: the justiciability of prorogation, (Issue 1); the standard of review that should be applied to test the lawfulness of prorogation, (Issue 2); the application of that standard to the instant case, (Issue 3); and the appropriate remedy, (Issue 4). The Supreme Court’s reasoning in respect of each issue is set out. This is followed by consideration of the critique of the Court’s reasoning on each issue and my response thereto. Issues 1 and 2 will be considered together, since they were closely connected in the Court’s judgment.