Parliamentary sovereignty is more fragile than we think

Retracing Miller II

Readers of this publication need not be reminded that the courts will be a threat to any genuinely right-wing government. Two of the key planks of national restoration — controlling immigration and cracking down on crime — are likely to be made much harder by the current judicial understandings of such concepts as ‘fundamental human rights’ and ‘due process’. There will be legal challenges brought by fox-killing tax barrister Jolyon Maugham, crowdfunded by centrist dads for whom law is a continuation of politics by other means.

The saving grace is Parliamentary sovereignty: Parliament may make or unmake any law it pleases, except one that binds its successors. It follows that if Parliament passes a law, the courts must give effect to it. Indeed, ask any judge what they are doing when interpreting legislation, and they will say that they are ‘giving effect to the will of Parliament’.

There are, however, two asterisks after this statement. The first is the Human Rights Act: the courts have to read legislation, ‘so far as it is possible to do so’, as being consistent with the European Convention on Human Rights.¹ Similarly, there is the common law ‘principle of legality’: when interpreting legislation, the courts ‘presume that even the most general words were intended to be subject to the basic rights of the individual’,² and it follows that Parliament must make its intentions ‘crystal clear’³ to override common-law rights.

The second asterisk is the wider problem of legislation that is badly drafted or ill-thought-through, something that has become increasingly frequent — even when legislating on matters that are not really ‘political’ — due to a Commons that is disturbingly bereft of talent on both sides of the aisle. Unclear laws are unlikely to be given their intended effect: even in the absence of activist judges, there is only so much a court can do when the words on the statute book are ambiguous. Of course, for judges who do have an agenda, ambiguity opens up another way to frustrate a right-wing government.

But both of these problems are merely skill issues. It is entirely possible for Parliament to set out in clear words legislative provisions that are inconsistent with the Human Rights Act. The courts will have no choice but to give effect to them, because Parliament is sovereign. Lawfare may be a difficult game to play, but it seems that ultimately, Parliament has the upper hand.

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Where does Parliamentary sovereignty come from?

As such, neither of these asterisks can actually be said to have abolished Parliamentary sovereignty in theory — only to have undermined it in practice. But what if the courts could take away the weapon of Parliamentary sovereignty altogether?

England has two sources of law: Acts of Parliament, and judge-made rules of law and equity. By one view, the orthodox view, Parliamentary sovereignty stands on its own: it is an integral part of our constitution that laws passed by Parliament take precedence over judge-made law.

But on another view, Parliamentary sovereignty is merely a common-law principle, albeit a very important one. In other words, Parliament is only sovereign because the courts say so. As the former Law Lord, Lord Steyn, put it:

The [orthodox view], pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.⁴

This statement, oozing with Blairite modernism, was made in the case of Jackson, which concerned a challenge to the Act of Parliament that banned fox hunting. This Act was passed under the Parliament Act 1949, whose practical effect is to allow the House of Lords to delay the passage of most bills for no more than a year. It was alleged for fairly technical reasons⁵ that the 1949 Act was not actually a valid Act of Parliament, which would in turn invalidate any Act passed using it, including the Hunting Act 2004.

The Law Lords correctly rejected the challenge, but then engaged in some ill-advised rumination on the nature of ‘the supremacy of Parliament’ that has since provided ample fodder for undergraduate essays on constitutional law. Several of the Law Lords cast doubt on whether Parliamentary sovereignty exists at all, or whether it exists within limits. (This should serve as a reminder that a return to the Law Lords — much favoured by the sort of small-c conservatives who pay more attention to form than substance — will probably accomplish very little.) Suppose, for instance, that Parliament sought to pass an Act abolishing the courts: would that be constitutional?

Thankfully, these statements are merely obiter dicta. In law-speak, this means they have persuasive authority, but do not create binding law: the legal equivalent of a parenthetical remark. The obiters in Jackson gave significant weight to the view that Parliamentary sovereignty was created by judges, but thankfully this is not the law. It might never be the law. As the former senior judge (and excellent example of nominative determinism) Lord Justice Laws, one of the proponents of this understanding of Parliamentary sovereignty, said:

The theoretical possibility that the judges might have to disapply an Act of Parliament lies at the end of a very long road marked failure — a place where the legislature would have lost its integrity.⁶

This seems to be suggesting that judges would not disapply a clearly-worded Act giving asylum seekers a (hopefully one-way) ticket to Rwanda, but they might strike down or at least severely restrict a genuinely tyrannical Act that, say, allowed indefinite detention without charge in peacetime.

Unfortunately, Lord Justice Laws’ statement is clearly untrue. In 2002, the High Court decided the ‘metric martyrs’ case (Thoburn v Sunderland City Council).⁷ The actual facts of the case need not trouble us: it concerned some street-traders who were trying to sell produce in pounds rather than kilogrammes, banned by EU law. Rather, the case is noteworthy for this statement:

…anything in our substantive law inconsistent with [EU law] is abrogated or must be modified to avoid the inconsistency.⁸

This statement was, of course, made by Lord Justice Laws himself. Disapplying an Act of Parliament is clearly not merely a ‘theoretical possibility’: indeed, the House of Lords had already done so⁹ before the ‘metric martyrs’ case. There was nothing in either of these cases to suggest anything tyrannical: the courts had simply decided that EU law took precedence over statute, and that was the end of the matter.

The European Communities Act 1972 has (of course) been repealed, meaning that the precise circumstances in which the High Court previously chose to strike down an Act of Parliament are no longer relevant, but it is still a possibility that a court might say that some different form of law ranks above Acts of Parliament. At that point, there is little that politicians can do, short of openly disobeying the court.¹⁰

Clearly, then, the orthodox view must be wrong: Parliament is sovereign only because the courts say so, and we know this because the courts have proven before that they can limit it when they see fit. For now, the courts have exercised restraint: they have only nibbled away at Parliamentary sovereignty. But it is worth reminding ourselves that the power of the US Supreme Court to strike down Acts of Congress was given to the Court by the Court itself in Marbury v Madison.¹¹ The power has no textual basis in the US Constitution. Ultimately, if a court wants to arrogate a power to itself, it can do. The only barrier between us and the abolition of Parliamentary sovereignty is the self-discipline of judges.

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Understanding Miller II: redefining Parliamentary sovereignty, elevating Parliamentary accountability

To the extent the Right thinks about these matters, they believe that we need to return to the pre-1997 constitutional settlement. That, sadly, is not possible: the incremental development of the common law is nearly always a one-way street.¹² The obiters in Jackson were the first steps down the path towards a court disapplying an Act of Parliament for reasons unrelated to the EU. Parliamentary sovereignty is more fragile than we think.

One of the reasons for this ignorance is that the Right shows little interest in understanding properly how the courts make these decisions — possibly because there are few right-wing lawyers, and most of us have chosen more lucrative fields than public law. For every hundred thinkpieces decrying ‘activist judges’, there is perhaps one article that properly analyses why decisions are being made in this way. Right-wingers who care about the role of the courts need to cure themselves of this ignorance. Read the judgments, analyse them, and you will get insight into the patterns of thought of the people who could abolish Parliamentary sovereignty.

One judgment looms larger than all the rest: Miller II.¹³ As everybody knows, in 2019 Boris Johnson advised the Queen to prorogue — i.e., suspend — Parliament. A few weeks later, the Supreme Court said he couldn’t.

It’s tempting to see Miller II as a defence of Parliamentary sovereignty. Certainly, that is what the judgment itself purports to say, and that is how most people interpret it. For a few years, when the Tories had either a slim majority in Parliament, or no majority at all, and it looked like Remoaner MPs might be able to thwart Brexit, FBPE suddenly discovered a love of Parliamentary sovereignty, a love that was abandoned after the 2019 election as quickly as it was adopted. Miller II was decided at a time when the atmosphere was such that ‘serious commentators’ made comparisons between Boris Johnson and the Stuart kings: Lady Hale was protecting Parliament from Boris Johnson, just as Sir Edward Coke took on James I.

This view, needless to say, is incorrect. Miller II was decided wrongly, dangerously wrongly, to the point that it is fair to call it a judicial power-grab. It should serve as a warning-shot for the Right; a demonstration of the true power of the courts, if only they chose to fully exercise it. Although I do not believe that Lady Hale intended to subvert the constitution (she only intended to subvert Boris Johnson), that is the effect of what she did, and the kinds of lawyerly tricks played in the judgment could very easily be used by an activist Supreme Court that is out to thwart a right-wing government.

To understand the judgment, we first need to understand that a government gets its powers from two sources. The first is legislation. The second is the Royal Prerogative, which is a set of powers recognised by the common law. Prerogative powers range from the basically trivial (granting honours, granting pardons) to the extremely important (appointing ministers, conducting foreign policy, proroguing Parliament).

In 1984, Margaret Thatcher banned employees at GCHQ from being members of trade unions. In 1981, a quarter of GCHQ staff went on strike. After this, it was decided that the risk to national security from industrial action, not to mention potential Reds in the unions, was too great.

At the time, civil servants’ terms of work were not governed by normal employment contracts, but were regulated by the prerogative.¹⁴ The unions had, however, been accustomed to being consulted before Orders in Council were made changing the terms of the civil service. On this occasion, consultation was not forthcoming.

Unsurprisingly, the unions took the Government to court. In its judgment,¹⁵ the House of Lords said that there was nothing special about prerogative powers that meant that the way they were exercised could not be subject to judicial review. Until then, the courts had the power to review whether the use of the prerogative power was legal,¹⁶ but they refused to review anything else about the power. So long as the Government was acting within its powers, any questions about how it acted were out of scope.

The approach before the GCHQ case was difficult to justify logically — if an identical power to regulate the terms of the civil service had arisen from statute, then its exercise most definitely would be reviewable by a court — but it had a certain pragmatic sense to it. Most of the important prerogative powers concern national security or foreign policy, or they are deeply political, like choosing whom to appoint as Secretary of State, or when Parliament should be dissolved. None of these are things the courts should be directly involved with. Refusing to extend judicial review to the prerogative was a way of holding the line, even if it was somewhat illogical.

Sadly, in Modern Britain, the survival rate of illogical but pragmatic legal compromises has been low. In yet another of the frog-boiling moments that make up the history of judicial review, the House of Lords decided that the courts were able to review the exercise of prerogative powers — or, in law-speak, that the exercise of the prerogative was in principle justiciable.

Their Lordships did, however, redeem themselves by ultimately deciding in favour of the Government. The House of Lords said that prerogative powers are only justiciable in principle: whether the courts actually will review the exercise of the power depends on the nature of the power. Sometimes, the exercise of the prerogative constitutes a routine administrative act, like granting a passport; in that case, it will be justiciable.¹⁷ In other cases, the prerogative is a matter of high politics, like dissolving Parliament or, as happened in the GCHQ case, national security. Lord Roskill said that the courts would not interfere in these cases: judges are ill-equipped to decide those questions.¹⁸

In other words, the courts put the more ‘political’ prerogative powers into the ‘non-justiciable’ category, and the ‘administrative’ ones into the ‘justiciable’ category. Of course, the courts themselves are the ones who decide which category a particular power falls into: in other words, judges, who proclaim that ‘no man can be a judge in his own case’, decide whether judges are the right people to decide the case. The irony seems lost on the legal profession.

The Miller II litigation in the courts below the Supreme Court shows the virtues of the pre-GCHQ approach. In England, the High Court said that prorogation was not justiciable,¹⁹ while in Scotland, the Inner House of the Court of Session said it was.²⁰ But both courts were engaging in exactly the same exercise — marking their own homework, the only difference being that the High Court marked it rather more honestly than the Inner House did.

The Supreme Court ought to have taken the judgment of the High Court, and slapped a large stamp saying ‘approved’ on it. The High Court simply said that the issue is not justiciable because there are no legal standards by which a court can discern between one prorogation and another. Prorogation is normally an uncontroversial, routine matter: it was only this prorogation that was controversial, because of the backdrop of the Brexit negotiations and the Government’s absence of a strong majority in Parliament. But the reasons why it was a special prorogation were essentially political, and for a court to judge those reasons would be to stray well outside its competence and constitutional legitimacy. A court cannot say, ‘a routine prorogation is allowed, but a political prorogation is not’, because as a matter of law, it is unable to distinguish between them. As such, the prorogation of Parliament is not a justiciable prerogative power.

The Inner House of the Court of Session, the highest civil court in Scotland, took the completely opposite view. It was admirably blunt in its reasoning: it said that the real intent of the prorogation was to stymie Parliamentary scrutiny of Brexit, which made it illegal. There is no legal basis for this reasoning, but it does at least have the merit of honesty.

It is clear that the Supreme Court wanted to rule against the Government: every centrist dad in the land was crying out to them to do so. (Indeed, it came as a pleasant surprise that the High Court actually ruled in the Government’s favour). The simple way to do so would have been to overrule the High Court by adopting the reasoning of the Inner House.

But the Supreme Court did not take that approach. It handed down a judgment that is — at least superficially — much more intellectually crisp (and certainly easier to read) than that of either of the two lower courts. But the crispness masks a certain craftiness in the way the question before the Court was framed.

A court has to ask itself three questions when judicially reviewing any power, statutory or prerogative:

1. Does it exist in the first place?

2. If it does exist, then does the power extend to the circumstances in which it has been purportedly used?

3. If the circumstances are within its extent, then has it been exercised properly?

The Inner House answered question (3): it held that Boris Johnson had improperly exercised the power to prorogue Parliament, because he was using this power to stymie Parliamentary scrutiny over Brexit. The High Court, for its part, also considered question (3): it said that the exercise of the power to prorogue Parliament is a political matter, so a court cannot inquire into whether it has been properly exercised.

It is understandable why the Supreme Court did not want to look at question (3). Deciding the real reason why a politician used a power is by its nature a political question. Furthermore, Lady Hale would (in effect) have to call Boris Johnson a liar, which would not have the desired effect of giving the judgment a superficial air of judicial sanctity, which is something that (very much intentionally) runs throughout the actual Miller II decision.

To avoid this, the Supreme Court changed the exam question. It chose to answer question (2): does the power extend to the circumstances in which it has been purportedly used? (Question (1) is uncontroversial: the power obviously exists.)

The advantage of this approach is that question (2) is clearly within the power of a court to answer. ‘The King hath no prerogative but that which the law of the land allows him’, said Sir Edward Coke,²¹ four centuries before Miller II. Question (2) allowed any questions about political judgments to be sidestepped: the Supreme Court was not interested in Boris Johnson’s motivations, but was simply inquiring as to the boundaries of the power to prorogue Parliament.

In doing so, however, the Court got itself into a conceptual jumble. When a court is deciding the extent of a power created by an Act of Parliament, the lines on the pitch are clearly marked out by the words of the statute. Of course, there can be much debate as to what exactly the words mean; nonetheless, the method by which the court should come to a decision is clear enough. But there are no words creating prerogative powers: they exist because they have always been recognised by the courts.

To get around this problem, the Supreme Court said that the limits on the power of prorogation can be found in other constitutional principles. It gave two, Parliamentary sovereignty and the accountability of the Government to Parliament, which I will discuss shortly. But first, it is worth reflecting on the trick the Supreme Court pulled.

In a common law system, judges make law. But do they make law by discovering it — that is to say, by reasoning from long-established, uncontroversial rules and principles? — or do they make law by simply declaring what it is — that is to say, by legislating from the bench? This is a debate that will go on until the end of time, but it is clear which method a court is using when it tries to reason from ‘constitutional principles’. Constitutional principles, unlike the rules and principles which underpin the common law, are often ill-defined: compare, for instance, the constitutional principle of the ‘rule of law’ with the related common-law rule that nobody should be a judge in his own case. We might be able to argue around the edges of the common-law rule, but the core of the concept can be expressed in precise, uncontroversial terms. The same cannot be said for the ‘rule of law’, which is more a statement of ‘values’ than an articulation of a legal rule. One school of thought holds that the ‘rule of law’ should include ‘fundamental human rights’; another school of thought says it shouldn’t. These are not debates around the fringes of the concept: its very definition is deeply controversial, and any attempt to reason from the ‘rule of law’ requires a court to take a side in this debate. The same is true for most other constitutional principles: by adding precision to an imprecise concept, a court will inevitably end up making law by declaration. Or, to put it another way: making it up as it goes along.

We are accustomed to seeing this in the United States. One such case was Griswold v Connecticut,²² in which the US Supreme Court struck down a Connecticut statute that restricted the use of contraception by married couples. The court decided this on the basis that there is a ‘right to privacy’ in the US Constitution. Even if we leave aside the question of why a ‘right to privacy’ should automatically imply a right to use contraception, there is a problem with this reasoning: the US Constitution does not contain the word ‘privacy’. ‘Aha!’, said crusading liberal William O. Douglas. Other rights have the effect of creating little ‘zones of privacy’ around them: the Fourth Amendment, for instance, entails the creation of a private sphere in respect of which there can be no unreasonable searches and seizures. The collective effect of these zones, found in several places in the Bill of Rights, is that the Constitution protects a right to privacy.

This kind of reasoning — ungrounded in the text of any legislation and heavily motivated by the judge’s political views — is alien to English lawyers. In England, the starting-point is always the text of a statute, or a well-defined concept in the common law. ‘Constitutional principles’ usually only come into English jurisprudence as one tool among many in a judge’s toolkit for deciding what the law is. This was not the case in Miller II: constitutional principles were the starting point.

The one saving grace, perhaps, is that one of the principles used in Miller II was Parliamentary sovereignty. Out of all constitutional principles, Parliamentary sovereignty might be the only one which is a genuine legal rule rather than a statement of ‘values’. Its clear definition only really begs one question — what counts as an Act of Parliament? — and that question has so far only once proved problematic.²³

The Supreme Court said:

[41] The first [principle constraining the extent of the prerogative] is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply. However, the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples, in the Case of Proclamations the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in the case of Attorney General v De Keyser’s Royal Hotel Ltd, the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative.

This is completely in keeping with the orthodox definition of Parliamentary sovereignty: Parliament may make any law it likes, except one that binds its successors; or to restate it in an equivalent form, Acts of Parliament ‘…are the supreme form of law in our legal system’.²⁴ Parliamentary sovereignty is a metarule: a rule for determining which legal rule should take priority over another if they conflict. Lady Hale’s suggestion in this paragraph that ‘…the effect which the courts have given to Parliamentary sovereignty is not confined’ to this metarule is wrong: all of the cases which she cites can be explained perfectly well by the orthodox understanding of Parliamentary sovereignty.

But the orthodox definition does not fit the conclusion that the Supreme Court wanted to come to. Imagine if the ghost of King Charles I came back and prorogued Parliament for a year, a decade even — this would not change one bit the principle that Acts of Parliament are the supreme form of law. There would be no new Acts of Parliament passed, for sure, but all of the Acts passed before the reincarnation of Charles I would carry on taking precedence over other forms of law. Parliamentary sovereignty would continue exactly as it did before. If we followed this logic, we would find that Parliamentary sovereignty was entirely consistent with an unlimited power of prorogation, which was not the conclusion the Supreme Court wanted to reach.

The answer was to change the definition of Parliamentary sovereignty. Lady Hale went on to say:

[42] The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.

The ability of Parliament to ‘…exercis[e] its legislative authority for as long as it please[s]’ is a non sequitur from a rule establishing the order of precedence of sources of law that have been enacted: instead, it is a much more expansive definition, that seems to have something to do with law that Parliament might want to make in the future.

In a common-law system, courts are entitled to make new law. But they should exercise this power with restraint, and should make it clear when they are doing so. Changing the definition of the most important principle of the British constitution in the interstice of two paragraphs is neither restrained, nor clear.

The final blow comes later. It follows from the new definition that there is no unlimited power of prorogation. But clearly there has to be a power to prorogue Parliament: prorogation is a routine event that usually happens every year, before the King’s Speech. What, then, are the limits on the power to prorogue? Lady Hale says the following:

[50] … a decision to prorogue Parliament … 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 as a legislature …

[51] … The extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions … is a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts.

It may not be a difficult question of fact to decide. But it is a question of fact that is inherently political — and the courts should not decide political questions.

In deciding this political question, Lady Hale became a household name, and a political figure. Normally, nobody bar lawyers is able to name any of the twelve Supreme Court justices — can you? — and this is how it should be. America shows us the dangers of a politicised Court, with all-but explicitly political judges deciding indisputably political questions. Lady Hale, in a fit of extremely poor judgement, while handing down the decision wore that spider brooch:

The brooch was presumably an allusion to Ruth Bader-Ginsburg’s insufferable ‘dissent collar’, worn when she was dissenting from the US Supreme Court’s decision and on the day Trump was elected. The effect was to give attention to Lady Hale personally: Miller II is now indelibly associated with Lady Hale, which made her a hero in the minds of many people. She enjoyed the attention: her autobiography is called Spider Woman,²⁵ and she must like the idea of being a superhero, given that she also once described the Supreme Court as the ‘Guardian of the Constitution’.²⁶

Lady Hale’s Marvel cosplay is now the law of the land. The Supreme Court showed that it could simply redefine the meaning of Parliamentary sovereignty on the fly, even though it remains to be seen quite what that meaning is: if the Supreme Court had spelled it out in more precise terms, it would have to have acknowledged that it was changing the constitution, which was the last thing it wanted to do in such a febrile political environment. But that is not the point: the judgment is more of a political document than a judicial decision. To give itself legitimacy, the judgment glows with an air of uncontroversy that is, to put it mildly, not merited, and its style is clear and readable, much more so than most Supreme Court decisions, because it is addressed to laypeople in Parliament and the media as much as it is to lawyers. 

It was also unanimous, which is surprising to say the least. The Court, exceptionally,²⁷ sat with eleven justice, and it stretches credibility that none of them disagreed with at least part of the reasoning. But dissent, too, would break the fourth wall: Lady Hale had to maintain the pretence that the judgment was entirely orthodox, rather than subversive. We do not know how the justices deliberated, but the obvious conclusion to draw is that showing the country they were ‘defending the constitution’ against Boris Johnson took precedence over attending to their judicial responsibilities.

The other constitutional principle invoked was the accountability of the Government to Parliament. This part of the decision was, if anything, even more radical than the redefinition of Parliamentary sovereignty, because it blurred the line between constitutional law and constitutional convention.

Constitutional law is, well, law, which means a court has the power to enforce it. Parliamentary sovereignty is indisputably a matter of law. Conversely, the courts do not have the power to enforce conventions, because they are not law. For instance, the King has the legal power to appoint whomever he likes as a minister, but by convention he must appoint the people whom the Prime Minister tells him to appoint. If the King broke this convention, it would undoubtedly spark a constitutional crisis, but a court would have no ability to intervene.

The advantage of conventions is that they can be adapted flexibly as circumstances change. Once, the Monarch had a degree of influence over the appointment of the Prime Minister, even if he or she had to appoint somebody who could command a majority in Parliament: in 1894, after Gladstone’s retirement, there was no obvious replacement, so Queen Victoria sent for Lord Rosebery, partly because she disliked the other leading Liberals. By 1963, when once again there was no obvious candidate in the governing Conservative Party, it had become widely accepted that it would be undemocratic for Queen Elizabeth II to play a part in the selection: she sent for Alec Douglas-Home on the advice of the outgoing Prime Minister, Harold Macmillan. The conventions governing the Monarch’s role in appointing the Prime Minister had moved with the times.

To be adaptable, many conventions must necessarily be vague. One such convention is ‘the accountability of the government to Parliament’. It includes the rule that the Prime Minister must resign on a defeat in a vote of no confidence. This is precise. But it also includes the principle that ministers should answer questions in Parliament and its committees; the convention (nowadays almost universally broken) that important changes of policy should be announced first in Parliament; and even the rigmarole of Prime Minister’s Questions. None of this would ever be easy for a court to distil into precise legal rules, and nor should it try: the relationship between the two political branches should be kept flexible, as times change and governments come and go.

But Parliamentary accountability is the second of the two constitutional principles which were relied upon in Miller II:

[46] [Parliamentary accountability was] described by Lord Carnwath in his judgment in the first Miller case as no less fundamental to our constitution than Parliamentary sovereignty. As Lord Bingham of Cornhill said in the case of Bobb v Manning “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy” …

[47] The principle of Parliamentary accountability has been invoked time and again throughout the development of our constitutional and administrative law, as a justification for judicial restraint as part of a constitutional separation of powers, and as an explanation for non-justiciability.

I agree: Parliamentary accountability is very important. But neither of these paragraphs provide any justification for why the convention should be enforceable in a court.

But the Supreme Court decided it did have the power to enforce the convention. To quote the killer paragraph in full:

[50] The relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament 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 as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

The courts are perfectly entitled to enforce the legal principle of Parliamentary sovereignty (even if the Supreme Court’s new definition is wrong). But they are not entitled to enforce the convention of Parliamentary accountability — unless, presumably, the convention was elevated to a legal principle. That is the only plausible explanation for what was happening here.

In summary, the Supreme Court made new law, without attending to its responsibilities while doing so. It changed the definition of the most important legal principle underpinning the constitution, and changed it to something imprecise. Furthermore, it elevated a vague convention to an equally-vague legal principle. The obvious conclusion to draw is that it was out to get Boris Johnson, legal reasoning or judicial restraint be damned.

There are three final things that can be said about Miller II. The first is that it had very little political effect: Parliament came back into session, but the prorogation accomplished its strategic goal to force through an election. The Conservatives won a big majority, and Brexit Got Done. Contra the hopes of the centrist dads, the courts were never going to actually stop Brexit in its tracks: to do so would have required law-making on a scale much more radical than Miller II.

Second, Miller II shows the virtues of judicial restraint. Judges ought to stay in their lane, exercise restraint, and reason from well-established rules and principles — and they definitely should not be making up law as they go along, which is inevitably what happens if a court has to add colour to a vague principle. Making it up as they go along can throw the law into confusion.

But third, and most concerningly, the motivated reasoning in Miller II shows what a court is capable of doing when it has an agenda to push. It can redefine constitutional law on the fly to serve its purposes. Battles between Parliament and the courts are asymmetric lawfare: politicians may seem to be well-equipped with Parliamentary sovereignty, but the courts can win guerilla-style, armed with the more subtle weapon of being clever with words.

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Conclusion: A future path to the sovereignty of the courts?

To conclude on a final, entirely speculative note. Suppose that a future Supreme Court one day decides to abolish Parliamentary sovereignty, by disapplying a statute. How might it justify this?

The obvious answer is ‘the statute is incompatible with the Human Rights Act’, but I don’t think this is likely, for two main reasons. Firstly, the Human Rights Act is an Act of Parliament, which means Parliament could simply repeal it.²⁸ Secondly, and perhaps more importantly, the Human Rights Act already has mechanisms, notably the ‘declaration of incompatibility’: if a court finds that the words of the statute cannot be read in accordance with the ECHR, it can in effect say to Parliament, ‘please fix this’. The statute is not actually immediately disapplied. So far, Parliament has always obliged, but theoretically it is under no legal obligation to do so. In the circumstances with which we are concerned — when the Supreme Court decides it has no choice but to disapply an Act of Parliament — it is likely that a declaration of incompatibility will have already been made, and duly ignored.

Instead, I (tentatively) think it might be justified by reference to ‘constitutional principles’. Comparing Britain to the United States, when the US Supreme Court decides if an Act of Congress is constitutional, it has to ask two questions: first, where the boundaries of constitutionality lie; and second, whether the Act in question sits within them. In answering the first question, it has to hew at least loosely to the text of the US Constitution, as well as the body of case law that has developed around it: even Griswold v Connecticut, the contraception case, was decided by textual interpretation.

But an imperial Supreme Court of the United Kingdom determined to overturn an Act of Parliament would be faced with a problem: there is no single document called ‘The Constitution’ that can define the boundaries of Parliament’s power. This is, of course, precisely the same problem that the Court faced in Miller II, that there are no statutory words defining the power to prorogue Parliament.

It is not unthinkable that a future Supreme Court might adopt the same solution as Lady Hale: ‘constitutional principles’. In other words, Lady Hale said in Miller II that ‘constitutional principles’ can define the extent of the Crown’s power to prorogue Parliament. The Supreme Court might in a future case say that constitutional principles — statements of ‘values’ — also define the extent of Parliament’s power to make law.

The courts have already implied they might be willing to take just such an approach. In the case of Privacy International,²⁹ the Supreme Court suggested a court might not give effect to a clause that tried wholly to exclude the High Court’s powers of judicial review over lower courts and tribunals. The courts have a history of trying to read these ‘ouster clauses’ in a way that deprives them of any teeth in practice,³⁰ but they have never gone so far as to disapply one formally and explicitly. The justification given for this remark in Privacy International — which, like the obiters in the case of Jackson, is not binding law — was that wholly ousting judicial review would violate ‘rule of law’, the example par excellence of a poorly-defined ‘constitutional principle’.

It is important to appreciate that this would be a double power-grab if a court did go down this path. The Supreme Court would have given itself (1) the power to say that an Act is unconstitutional, and (2) an effectively blank canvas to define what ‘The Constitution’ is. In America, it is possible to say with a straight face that the US Constitution is sovereign (in the sense of being the supreme law), and the US Supreme Court merely interprets it; in Britain, the abolition of Parliamentary sovereignty would undoubtedly mean the sovereignty of the courts.

Do I think this would actually happen? It is obviously unlikely: I think such a move is so radical as to be unpalatable for most of today’s judges, and it would, of course, have been preceded by a complete breakdown of required relations between politicians and judges. But it remains a possibility, so long as judges believe that Parliamentary sovereignty is no more than a ‘construct of the common law’. One thing is for certain: Lord Justice Laws was right that overturning Parliamentary sovereignty would be at the ‘end of a very long road marked failure’ — but it would be failure on the part of the courts to know their place, and on the part of the Right for allowing them victory. When we win, we should heed this warning.

1. Human Rights Act 1998 s 3.

2. R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131.

3. R (Jackson) v Attorney General [2005] UKHL 56, [149].

4. Jackson [102].

5. The appellants’ arguments were summarised by Lord Bingham at [7] as

‘(1)  Legislation made under the [Parliament Act 1911, which includes the Parliament Act 1949] is delegated or subordinate, not primary.

(2)  The legislative power conferred by section 2(1) of the 1911 Act is not unlimited in scope and must be read according to established principles of statutory interpretation.

(3)  Among these is the principle that powers conferred on a body by an enabling Act may not be enlarged or modified by that body unless there are express words authorising such enlargement or modification.

(4)  Accordingly, section 2(1) of the 1911 Act does not authorise the Commons to remove, attenuate or modify in any respect any of the conditions on which its law-making power is granted.’

6. John Laws, The Common Law Constitution (2013 Hamlyn Lectures, CUP 2014) 28.

7. Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).

8. Thoburn [69].

9. R v Secretary of State for Transport, ex p Factortame Ltd (No 1) [1990] 2 AC 85.

10. Another example is given by ‘ouster clauses’ in legislation that purport to make it impossible for the High Court to exercise judicial review over the decision of a specialist tribunal. The courts have historically read these clauses in such a way as to water them down. See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.

11. 5 US 137.

12. The starting-point is that the Supreme Court (and previously the House of Lords) will treat its previous decisions as binding, but it may depart from a previous decision where it appears right to do so. See Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

13. R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland [2019] UKSC 41.

14. More precisely, they were regulated by an Order-in-Council.

15. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

16. In the Case of Proclamations 12 Co Rep 74 it was said that ‘King hath no prerogative, but that which the law of the land allows him’. In Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 the court prevented the prerogative from being used to overrule a statute, consistent with the sovereignty of Parliament.

17. R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 All ER 655.

18. Council of Civil Service Unions 418.

19. [2019] EWHC 2381 (QB).

20. [2019] CSIH 49.

21. Case of Proclamations 12 Co Rep 74.

22. 381 US 479.

23. This was the case of Jackson mentioned earlier.

24. To make it truly logically equivalent, the statement would be, ‘Acts of Parliament are the supreme form of law, and later Acts of Parliament take precedence over earlier Acts’.

25. Lady Hale, Spider Woman: A Life (Random House 2021).

26. Lady Hale, ‘The Supreme Court: Guardian of the Constitution?’ (Sultan Azlan Shah Lecture 2016).

27. Usually five Supreme Court justices hear a case, or seven if it is particularly important. The two Miller cases are the only ones where eleven justices have sat together.

28. Lord Justice Laws in the ‘metric martyrs’ case has already introduced the concept of ‘constitutional statutes’, including the HRA, which rank slightly higher than ordinary statutes. But it is one thing to say, ‘a constitutional statute takes precedence when another Act impliedly conflicts with it’; quite another to say that constitutional statutes cannot be repealed.

29. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [144].

30. See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R (Cart) v Upper Tribunal [2011] UKSC 28.