The Miller II Case in Legal and Political Context

I recently completed a paper examining the UK Supreme Court’s judgment in the Miller II case, in which it was held that an attempt to prorogue the UK Parliament for period of several weeks in 2019 was unlawful. The following excerpt, drawn from the introduction to the article, gives a sense of the terrain that I cover in it and the arguments that I advance:

For a number of years there has been nothing at all unusual about the United Kingdom finding itself in a state of constitutional upheaval; indeed, for some time, this has been the UK constitution’s default setting. This has sometimes been as a result of long-anticipated and carefully planned reforms, such as the enactment, in the late 1990s, of legislation to give domestic effect to the European Convention on Human Rights and to introduce devolved systems of government in Scotland, Wales and Northern Ireland. In contrast, more recent upheaval is attributable to often unexpected reactions to often unexpected events. For example, legislation making substantial changes to the devolution scheme in Scotland – providing, among other things, for the constitutional permanence of the Scottish Parliament and Government – was enacted to implement panicked promises made by UK politicians in the dying days of the Scottish independence referendum campaign, at which point a vote in favour of independence seemed a distinct possibility. And then, needless to say, there is Brexit – about which it is almost impossible to be guilty of hyperbole when describing its constitutional implications, so numerous and potentially far-reaching are they.

This article makes no attempt to catalogue those implications. But it does take as its focus a landmark judgment rendered against a dramatic, Brexit-related backdrop. In the late summer of 2019, the UK Government sought to suspend Parliament, precipitating a Supreme Court judgment holding the attempt to be unlawful, clearing the way for the immediate reopening of the legislature. These legally and constitutionally explosive developments took place in a politically febrile atmosphere, with the UK apparently hurtling towards the cliff-edge of leaving the EU without any withdrawal agreement, the Government seeking to suspend Parliament, and Parliament, in its turn, racing – successfully, as it happens – to enact legislation requiring Ministers to seek an extension to the EU exit process.It was in these unprecedented circumstances that the Supreme Court issued its incendiary judgment in the Miller II case.

In this article, I examine that judgment and contend that, contrary to arguments advanced by the Government in the course of the litigation and contrary to criticism that the judgment has attracted, the Supreme Court arrived at the correct conclusion and did so on the basis of legal and constitutional reasoning that was eminently sound. In advancing this argument, I contend that the Supreme Court’s judgment was at once both orthodox and path-breaking. I also contend that, to the extent that it may have been legally and constitutionally innovative, such innovation was anchored in a secure foundation of fundamental principle. I then conclude by stepping back from the detail of the judgment to consider its broader implications. Before doing any of those things, however, I begin with a sketch of the issues that were at stake, and of the judgment that the Supreme Court delivered, in the Miller II case.

A copy of the paper, which is published in the European Constitutional Law Review, can be downloaded via SSRN.