Monday’s ruling explicated the logic of office-holding within a parliamentary democracy—and reinforced the structures which sustain political lifeby Thomas Poole / September 25, 2019 / Leave a comment
The Supreme Court decided in Miller & Cherry that parliament was not prorogued, since the prime minister’s advice to the Queen was unlawful. The temptation is to dissolve the case into Brexit politics. Brexit, combined with parliamentary arithmetic and the Fixed-term Parliaments Act, produced the circumstances that triggered the case, a rupture between government and parliament that is rare within our system. Brexit also brings sharpness and intensity to questions about our political life. But seeing the case solely through this lens misses its real character. Only by attending to the patterns of continuity and innovation that it traces can we understand what makes it quite possibly the most significant judicial statement on the constitution in over 200 years.
It is hard to think of a more important separation of powers case. Its significance derives from its exposition of the relationship, often blurred, between government and parliament. The case reaffirms the idea of government ministers, including the prime minister, as office-holders within the constitution, with duties corresponding to the magnitude of their office. It strengthens the claim that it is the “particular responsibility” of the court to determine where the legal powers of each branch of government begins and ends.
The fact that Miller & Cherry was a unanimous judgment surprised commentators. It is common to see a number of separate opinions, especially in a case like this where even bringing it broke new ground. A streamlined judgment of only 24 pages, it proceeds without unnecessary complication or ornament. It is as though the Court wanted to show in the process of giving judgment two themes that do so much to shape it—the demands of reason and the constraints of office.
The first issue for the Court was whether prorogation is justiciable—that is, whether the prorogation is reviewable at all by the courts. This was the issue on which the Court spent most time, ultimately deciding “yes.” Many previously considered prorogation a political matter—one of a handful of prerogative powers to which the normal rules of judicial review do not apply. It was thought that this subset continued to operate according to the old law relating to all prerogatives. The court could determine whether a prerogative power existed and had been exercised within its limits; it could not…