Analysis of the Supreme Court's Reasoning in Cherry/Miller (No 2)

The Supreme Court in the prorogation case of Cherry/Miller (No 2)1upheld its “constitutional duty”2 to advocate the constitutional principles of the Rule of Law and Parliamentary Sovereignty. The court’s stance is in ad equation with the Westminster vision, recognizing that “the UK constitution is based on a number of constitutional principles that ensure that Parliament is ‘the senior partner’. Those principles, despite not codified and subject to legislative interference, are nonetheless fundamental and capable of being enforced in court”3. Relying on the adversarial Whitehall vision, which recognizes an “executive dominance model of governance”4, it was argued by some critics that the Court’s decision was entirely political since it had no constitutional right to scrutiny the government’s decision to prorogue parliament. However, arguments favoring this position ultimately reveal an underlying weakness; they alter the constitutional settlement of the United Kingdom. Indeed, while the decision blurred the line between law and politics, the intervention was entirely appropriate from a constitutional perspective. The Constitution has evolved from recent case law and provides a system of checks and balances between the branches of power under a recognized sovereignty of Parliament, not the Executive. The approach reflects Bagehot’s idea of the constitution as arising from power fusion rather than separation and legitimizes Westminster advocates in Cherry/Miller (No 2)5. [1]

This essay will attempt to demonstrate that the Supreme Court’s reasoning upheld key constitutional principles in line with the Westminster view. Despite at times crossing the boundaries between legality and politics, since constitutional law cannot be completely abstracted from a political vision on how power shall be constrained and liberty of citizens preserved, the court’s decision was not a political act. It’s ruling derives from the modern British partial separation system.

Providing an analysis of the Westminster vision against the Whitehall perspective, the essay will justify the former’s appropriateness in the Supreme Court’s judgment, looking particularly at the three issues which are at the heart of the disagreements on this ruling: justiciability, parliamentary sovereignty and parliamentary accountability. Firstly, because contrary to what Whitehall’s defenders might argue, the court was legally right to interfere as the issue was justiciable. It simply complied with its duty, and did not intervene for political reasons. Secondly, the court was protecting parliamentary sovereignty which is central to the UK constitution. Thirdly, parliamentary accountability might have been interpreted as a principle more than a convention but it has been central in judicial review. While, accepting that the judgement might have interpreted this convention in a novel way, it does not necessarily follow that it is a political act. [2] [3]

Justiciability and the Judicial Power to Prorogue

Justiciability

The Supreme Court in Cherry/Miller (No 2)6, opposing the Divisional Court, ruled that the prerogative to prorogue Parliament could be justiciable because its boundaries are to be determined “by the fundamental principles of our constitutional law”, therefore, “every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie”7. On the issue of justiciability, the court has not politically assigned itself a role which did not legally have, rather simply imposed limits over prerogatives in accordance with what the Constitution empowers it to do through the rule of law: acting as a scrutinizer to avoid abuse and unconstitutional power exercise from the executive.

In accordance with the Westminster vision, within a mixed power separation framework such as that of the United Kingdom, it would be unrealistic to accept that only because the issue concerns an executive power’s prerogative, courts are automatically exempted from questioning it. Instead, the Supreme Court invoked the existing principle of legality in a novel way by applying it to prerogatives. The mere fact that a question is political “in tone or context”8 cannot render the matter non-justiciable. The question for the court did not concern the substantial issue of whether prorogation was an executive prerogative or not (its lawfulness), but whether the executive was reasonable when deciding to employ it. This is a stricter but appropriate, procedural scrutiny which ensures that whilst the government has a prerogative, it does not prevent courts from scrutinizing how the prerogative has been exercised and whether it could have been employed in the first place. [4]

[5] From the Whitehall’s perspective, the Court omitted to distinguish between constitutional laws, considered justiciable, and constitutional conventions, non-justiciable.

Tierney prioritized the sovereign nature of prerogatives when explaining that we “need to categorize certain prerogative powers (including that of prorogation) as the ‘prerogatives of sovereignty’ which capture the legal dimension of sovereignty within our constitution”9. Moreover, Finnis argued that the Courts’ approach of illegitimately appointing themselves the“guardians of Constitution”10, radically altered the stability of the UK constitutional settlement, allowing for a convention to be turned into law and treated accordingly without a reasonable explanation. The arguments advanced seem to suggest the need for the executive to retain some independency against the regular constitutional procedure of scrutiny within branches. However, this approach is likely to induce power exploitation by implying that the Court should make an exception for prerogatives and allow the executive some independence, yet without any exhaustive justification.

Power to Prorogue

The Court further ruled that the prerogative to prorogue “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”11. The test was to identify the presence of an unreasonable justification, not engaging with the legitimacy of the act itself. It was the court’s constitutional duty to assess whether the executive was unreasonable in the use of its prerogative. While nevertheless agreeing with the Whitehall vision that it gives the judiciary extensive scrutiny power, there is however a distinction to be made between a power to check if decisions are taken reasonably and a power to strike down unwanted decisions, amounting to a political act.

[6] The Westminster approach supports a defense by the courts of key Constitutional features. Prorogation of Parliament constitutes an ordinary and relatively uncontroversial custom, which, in a mixed power separation system, can be scrutinized by the Courts when alleged to have been used unreasonably. In this case, the exceptional circumstances in which the issue arose, constituted a further reason legitimizing the need for intervention. Prorogation “had the effect of preventing parliament from performing its constitutional role at a time when the UK was about to undergo a fundamental and irreversible constitutional change”12. It cannot be that because an action is customary, it is impossible for its exercise to be conducted unlawfully. Part of the test the court used to assess the reasonableness of the executive’s decision, was to check whether the Prime Minister’s conduct was intended to enhance his own purposes rather than those of the Government. The Court did not interfere to prevent unwanted political decisions, but to ensure those decisions were taken without undermining constitutional principles and were not used for the Prime Minister’s personal interests. 

Whitehall supporters criticized the Supreme Court’s lack of reasonable justifications to legitimize its intervention, perceiving the judgment as entirely political. It was argued that the court applied a “strict or anxious scrutiny review”13 test to establish itself as “forum of constitutional principle”14. Finnis described this approach as a “card-shuffle”15 because defining “power’s legal limits and boundaries”16 inevitably includes examining the mode of exercise, contrarily to what the Court alleged. The Whitehall critics perceived this scrutiny as coming from a substantive approach to the rule of law against a mere procedural attitude. The Whitehall arguments fail to acknowledge a melded constitutional framework, which empowers Courts to examine closely other branches’ exercise of power to avoid abuse, tyranny and ensure efficiency. This supports Barber’s vision of power separation that “having decided that a particular goal ought to be striven after in a society, the doctrine [of power separation] then focuses our attention on the manner by which it may be achieved”17. The court’s scrutiny did not come from a substantive approach to the rule of law, it merely applied a procedural vision of the rule of law in not holding the decision illegal by its content or purpose but rather by how it was taken. The Whitehall arguments fail to conceal their attempted power exploitation by downplaying fundamental constitutional principles of their value. [7]

Parliamentary Sovereignty and Parliamentary Privilege

Parliamentary Sovereignty

The Supreme Court ruled that Parliamentary Sovereignty would be undermined “if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased”18. The legal application of Parliamentary Sovereignty implies that the prorogation privilege is limited when it is not reasonably justified and the suggestion that this interpretation constitutes only a reason for the court to hinder the executive lacks impartiality.

Although the UK constitution recognizes the existence of prerogative powers, their exercise must fall within the boundaries established by a partial separation system which unifies under Parliamentary Sovereignty. It would be paradoxical to allow prerogatives to restrain the limitless authority of Parliament and equally“incompatible with Parliamentary Sovereignty for the executive to have legally unfettered authority to prorogue parliament”19. This could disintegrate the UK Constitution’s defining principle, entailing a domino effect as to the integrity of fundamental constitutional principles that evolved from it, such as Parliamentary accountability. Accordingly, as Westminster supporters sustain, “untrammeled executive power to prorogue parliament would render the Sovereignty of Parliament a dead letter”20 nullifying everything that derives from it.

The arguments opposing the Westminster approach seem to annihilate the rooted concept of Parliamentary sovereignty and overlook the Diceyan recognition of limitless legal authority. Whitehall supporters allege that proroguing Parliament “does not depart from Parliamentary Sovereignty, regardless of the nature and reason of prorogation”21, and no part of the UK Constitution requires the houses to have “plenary authority”22 over their will imposed on Government. However, this reveals an underlying intention to misconstrue the principle by impliedly erasing its essential feature of sovereignty to accommodate an unconstitutional conception of the executive as sovereign and the parliament deferential to it. [8]

[9] Parliamentary Privilege

The Supreme Court proposed that Article 9 of the Bill of Rights23 would not extend to the prorogation of Parliament because it was imposed “from outside”24. The judgment relied on the protection of Parliamentary Sovereignty to argue that the executive ‘s prerogative should not conflict with parliamentary sovereignty. This clearly illustrates that the court relied heavily on constitutional principles and was not acting politically.

The Supreme Court acted as upholder of the rule of law and acknowledged that “Article IX does not provide a shield for the effects of prorogation. The wrongful act occurred outside parliament, the fact that it’s inevitable consequences reached into parliament does not save those consequences from the taint of unlawfulness”25.

Whitehall supporters such as Finnis relied on R (Barclay) v Lord Chancellor26, ruling that “the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts”27, to suggest that the court acted inconsistently with political intentions and frustrated the literal meaning of Article 9 to make it fit with its argument. However, the truthfulness of this conclusion is hardly proven given that the case involved international law and Human Rights issues which substantially differed from Cherry/Miller (No 2)28. The proposition of Parliamentary Sovereignty is a compelling argument in favor of the Supreme Court’s judgment that allowing for prerogatives to undermine sovereignty would hamstring the UK Constitution by rendering its core constitutional proposition a “dead letter”29.

Parliamentary Accountability

The Supreme Court recognized the accountability of Government to Parliament as a distinct principle, establishing an additional legal standard of assessment. The judgment explains that the longer“Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government”30, thus “the same question arises as in relation to Parliamentary sovereignty”31. By equating the notions of Parliamentary Sovereignty and Parliamentary Accountability, the court protected fundamental constitutional principles rather than impose a political judgment. Parliamentary Accountability is a key function that Parliament is constitutionally able to exercise and judiciary intervention was uniquely seeking to defend this aspect of its supremacy.

The Westminster vision’s morally-focused approach, expressly rejects Whitehall’s unconstitutional attempt to isolate the executive from scrutiny and confer it unfettered power, supporting Barendt’s conclusion that power separation “amounts to a constraint on legislative supremacy”32 and precise power allocation is irrelevant whenever it is rational.

For long, British politics has been perceived as dominated by the executive because “Parliament and government look united, making it easy to slip into an assumption that government is the one in charge, and parliament the junior partner”33. However, “in reality the power of parliament is very significant, but multifaceted, complex and often hidden.”34. It is, therefore, neither unsettling nor ambiguous, for the judiciary to have recognized parliamentary accountability as a “constitutional principle”35 over which could legitimately intervene. [10][11]

This reinforces the point that it is not “possible to regard such questions as being purely ‘legal’ and to be entirely divorced from political judgments”36. Applying constitutional principles can be associated with encouraging a particular ideal from political philosophy on how to best limit arbitrary power. It would be inappropriate to conceive their existence as utterly separated from political issues. For the partial power separation system of the UK to guarantee scrutiny, it is essential to accept interventions of this nature. Indeed, the Court has no role in policy making and in determining political decisions, however it does have a role of scrutiny on politicians and political bodies’ conduct.  Preventing such a practice may comply with the American system of pure power separation, however, it would be unrealistic to impose it on the British model.

[12] Counter to the Supreme Court’s decision, it was further contended that the judgment transformed Parliamentary accountability from an historical to a legal principle for fear of “hypothetical and extreme abuse”37, always considered “preventable”38. Tierney argued that Parliament alone should demarcate its sovereign relationship with the Crown: Parliament could have reacted by placing limits but chose not to do so. He relied on the Fixed-Term Parliaments Act39 as an example of Parliament constraining the prerogative to dissolve Parliament. The intention is clearly to promote some independence to be retained among branches, as opposed to the established need for scrutiny. The refusal to acknowledge the constitutional reality of the United Kingdom which is not pure in power allocation, reveals a lack of reasonable grounds for opposition. Judiciary scrutiny advocated by the Westminster view, appreciates a vision of the Constitution in its entireness and defeats the conception of Cherry/Miller (No 2)40 as a political judgment which the Supreme Court should not have undertaken.

Conclusion

This essay attempted to demonstrate that the decision of Cherry/Miller (No 2)41did not constitute a political act but a demonstration of the court exercising its constitutional duty to protect Parliamentary Sovereignty as upholder of the rule of law, endorsing the Westminster vision. The debate arises out of the tension for dominance between the Executive and Parliament in the UK. The judiciary acted within its power’s limits as defender of the constitutional recognition of Parliamentary Sovereignty and whilst the court cannot make political decisions, its rulings can certainly have an impact on political outcomes. 

Although the judgment blurred the apparent neat line between politics and legality, it ensured that the “Westminster view is now the legal reality”42. Despite constituting an unprecedented decision formulating milestone principles in a novel light, the judgment clearly acted to protect key constitutional notions which inevitably have at times involved the discussion of political issues and ideals of how a polity should be governed. It ultimately reveals rational to conceive the Constitution as deriving from power fusion, making it unrealistic to foist a neat distinction between political and legal issues in the UK. Naturally “when the constitution is under strain from all sides, it is normal that Parliament and the judiciary are asked to make decisions on questions of constitutional interpretation which are inherently political”43.

Whitehall view that only because an issue concerns a constitutional matter which will have repercussions on governance and the balance of power between the different branches, it should automatically prevent both the Parliament and the Judiciary from questioning it, undermines the essence of democracy. Only when all the three power branches succeed in co-existing under a system of checks and balances as the key to grant control of a country which developed from this concept, constitutional values are expressed in their absoluteness.[13]

[14]+

Table of Cases

• R (Barclay & Anor) v Secretary of State for Justice and Lord Chancellor & Ors [2014] UKSC 54, [2014] 3 WLR 1142
• R (on the application of Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41, [2019] 3 WLR 589

Table of legislation

• Bill of Rights (Act) 1689 (c 2)
• Fixed-Term Parliaments Act 2011

Bibliography

• Barber N W, ‘Prelude to the Separation of Powers’, (2001) [60] CLJ 59
• Barendt E, ‘Separation of powers and Constitutional Government’ [1995] PL 599
• Caird J S, ‘The Supreme Court and Parliament: The Constitutional Status of Checks and Balances’ (UK Constitutional Law Association Blog, 27 September 2019) accessed 17 February 2020
• ‘The politics of constitutional interpretation in the UK’ (Policy Exchange, 1 October 2019) accessed 27 February 2020
• Ekins R, ‘Parliamentary Sovereignty and the Politics of Prorogation’ (Policy Exchange, 16 September 2019) accessed 17 February 2020
• Elliott M, ‘The Supreme Court’s judgment in Cherry/Miller (No 2): A new approach to constitutional adjudication?’ (Public Law for Everyone, 24 September 2019) accessed 17 February 2020
• Finnis J, ‘The Unconstitutionality of the Supreme Court’s prorogation judgment’ (Policy Exchange, 28 September 2019) accessed 17 February 2020
• Fowles S, ‘Cherry/Miller: What’s Next?’ (UK Constitutional Law Association Blog, 26 September 2019) < https://ukconstitutionallaw.org/2019/09/26/sam-fowles-cherry-miller-whats-next/> accessed 17 February 2020
• Glazebrook S, ‘Comment: Mired in the past or making the future?’ (Policy Exchange, 2 February 2018) < https://judicialpowerproject.org.uk/justice-glazebrook-comment-mired-in-the-past-or-making-the-future/> accessed 26 February 2020
• Loughlin M, ‘The Case of Prorogation: The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court” (Policy Exchange, 25 October 2019) accessed on 17 February 2020
• Russel M, ‘The Supreme Court ruling in Cherry/Miller (No 2) and the power of parliament’ (The UK in a changing Europe, 27 September 2019) < https://ukandeu.ac.uk/the-supreme-court-ruling-in-cherry-miller-no-2-and-the-power-of-parliament/> accessed 17 February 2020
• Tierney S, ‘Prorogation and the Courts: A Question of Sovereignty’ (UK Constitutional Law Association Blog, 17 September 2019) accessed 17 February 2020

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1[2019] UKSC 41, [2019] 3 WLR 589.

2Jack Simson Caird, ‘The Supreme Court and Parliament: The Constitutional Status of Checks and Balances’ (UK Constitutional Law Association Blog, 27 September 2019) accessed 17 February 2020.

3ibid.

4ibid.

5Cherry (n 1).

6Cherry (n 1).

7ibid [38].

8Mark Elliott, ‘The Supreme Court’s judgment in Cherry/Miller (No 2): A new approach to constitutional adjudication?’ (Public Law for Everyone, 24 September 2019) accessed 17 February.  2020. 

9Stephen Tierney, ‘Prorogation and the Courts: A Question of Sovereignty’ (UK Constitutional Law Association Blog, 17 September 2019) accessed 17 February 2020.

10Susan Glazebrook, ‘Comment: Mired in the past or making the future?’ (Policy Exchange, 2 February 2018) < https://judicialpowerproject.org.uk/justice-glazebrook-comment-mired-in-the-past-or-making-the-future/> accessed 26 February 2020.

11Cherry (n 1) [50]. 

[5]

12Sam Fowles, ‘Cherry/Miller: What’s Next?’ (UK Constitutional Law Association Blog, 26 September 2019) accessed 21 February 2020.

13Martin Loughlin, ‘The Case of Prorogation: The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court” (Policy Exchange, 25 October 2019) accessed on 21 February 2020.

14ibid.

15John Finnis, ‘The Unconstitutionality of the Supreme Court’s prorogation judgment’ (Policy Exchange, 28 September 2019) accessed 21 February 2020.

16ibid.

17Nicholas William Barber, ‘Prelude to the Separation of Powers’, (2001) [60] CLJ 59, 71-72.

18Cherry (n 1) [42]. 

19Elliott (n 8).

20ibid.

21Richard Ekins, ‘Parliamentary Sovereignty and the Politics of Prorogation’ (Policy Exchange, 16 September 2019) accessed 21 February 2020.

22ibid.

231689 1 Will and Mar (Sess 2) c 2.

24Cherry (n 1) [68]. 

25Fowles (n 12).

26[2014] UKSC 54, [2014] 3 WLR 1142. 

27ibid [48].

32 Eric Barendt, ‘Separation of powers and Constitutional Government’ [1995] PL 599, 604.

33Meg Russel, ‘The Supreme Court ruling in Cherry/Miller (No 2) and the power of parliament’ (The UK in a changing Europe, 27 September 2019) < https://ukandeu.ac.uk/the-supreme-court-ruling-in-cherry-miller-no-2-and-the-power-of-parliament/> accessed 17 February 2020.

34ibid.

35Fowles (n 12).

36Jack Simson Caird, ‘The politics of constitutional interpretation in the UK’ (Policy Exchange, 1 October 2019) accessed 27 February 2020.

37Finnis (n 15).

38ibid.

392011 c 14.

40Cherry (n 1). 

41ibid.

42Caird (n 2).

43ibid.