The Supreme Court decision in Miller (No 2) [2019] UKSC 41 was deeply flawed in two key respects. First, it offended the separation of powers because activist judges became mired in politics and thus over-stepped the strict, clear limits of their role; to judge according to law. Second, the court ignored the established constitutional distinction between law and convention by effectively enforcing ministerial accountability to Parliament. Discuss this criticism with reference to relevant case law and constitutional literature. To what extent do you agree with it, and why?

QUESTION

The Supreme Court decision in Miller (No 2) [2019] UKSC 41 was deeply flawed in two key respects. First, it offended the separation of powers because activist judges became mired in politics and thus over-stepped the strict, clear limits of their role; to judge
according to law. Second, the court ignored the established constitutional distinction between law and convention by effectively enforcing ministerial accountability to Parliament.

Discuss this criticism with reference to relevant case law and constitutional literature. To what extent do you agree with it, and why?

ANSWER

The Flaws in the Supreme Court Decision in Miller (No 2) [2019] UKSC 41: A Critical Examination

Introduction

The Supreme Court decision in Miller (No 2) [2019] UKSC 41 regarding the prorogation of Parliament by the UK government generated significant debate and criticism. This essay will critically analyze two key criticisms directed towards the decision. The first concerns the alleged violation of the separation of powers, arguing that activist judges overstepped their role by engaging in politics. The second criticism highlights the court’s disregard for the constitutional distinction between law and convention by enforcing ministerial accountability to Parliament. Through an examination of relevant case law and constitutional literature, this essay will evaluate the extent to which these criticisms hold merit.

Violation of the Separation of Powers

The criticism asserts that the Supreme Court’s decision in Miller (No 2) [2019] UKSC 41 compromised the separation of powers by allowing activist judges to exceed their designated role as impartial arbiters of the law. It is contended that by involving themselves in political matters, the court transgressed the clear boundaries set for their function as impartial adjudicators.

However, a closer examination of the separation of powers doctrine reveals a more nuanced understanding. The concept of separation of powers seeks to prevent the concentration of power in one entity, ensuring checks and balances between the executive, legislative, and judicial branches (Separation of Powers: An Overview, 2023). While judges should refrain from engaging in partisan politics, they are not precluded from interpreting and applying the law in politically significant cases.

Case law, such as the landmark decision in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, demonstrated that the judiciary has a crucial role in determining constitutional matters (Transatlantic Perspectives on the Political Question Doctrine on JSTOR, n.d.). The court’s intervention in Miller (No 2) [2019] UKSC 41 can be seen as a necessary step to safeguard the rule of law and prevent potential abuses of power. The judgment was centered on the legality of the government’s prorogation of Parliament, rather than delving into political preferences.

Disregard for the Constitutional Distinction between Law and Convention

The second criticism posits that the Supreme Court’s decision in Miller (No 2) [2019] UKSC 41 blurred the constitutional boundary between law and convention by enforcing ministerial accountability to Parliament (Elliott, 2020). It is argued that the court overstepped its authority by effectively creating a legal requirement for ministers to be accountable to Parliament, despite this being a matter of convention rather than codified law.

While conventions are traditionally non-justiciable, there are instances where the courts have intervened to uphold constitutional principles. The court’s determination in Miller (No 2) [2019] UKSC 41 stemmed from the inherent link between parliamentary accountability and the rule of law. By assessing the legality of prorogation, the court implicitly recognized the need to ensure ministerial accountability to Parliament as a fundamental principle of the UK’s unwritten constitution.

Moreover, constitutional literature acknowledges that conventions are not immune to judicial scrutiny when they intersect with legal questions. The court’s interpretation and application of constitutional conventions in Miller (No 2) [2019] UKSC 41 were aimed at upholding the rule of law and maintaining the constitutional balance, rather than undermining the separation of powers.

Conclusion

In conclusion, the Supreme Court decision in Miller (No 2) [2019] UKSC 41 attracted criticism on two grounds: the alleged violation of the separation of powers and the disregard for the constitutional distinction between law and convention. However, upon closer examination, these criticisms do not withstand scrutiny. The court’s intervention was essential to uphold the rule of law and prevent potential abuses of power, and its interpretation of conventions was necessary to maintain constitutional balance. The decision in Miller (No 2) [2019] UKSC 41 serves as a testament to the judiciary’s vital role in preserving constitutional principles and ensuring accountability within the democratic framework.

References

Elliott, M. (2020, August 3). A new approach to constitutional adjudication? Miller II in the Supreme Court. Public Law for Everyone. https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/ 

Separation of Powers: An Overview. (2023, July 6). https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview 

Transatlantic Perspectives on the Political Question Doctrine on JSTOR. (n.d.). https://www.jstor.org/stable/27074711