In Praise of the British Judiciary: The Miller Decisions as Reasons for Optimism

Few very long judgements are worth reading in full. R (on the Application of Miller and another) v Secretary of State for Exiting the EU[1] („Miller 1”) and R (on the Application of Miller) v The Prime Minister[2] („Miller 2”) are amongst them. They should be taught not only as part of any Constitutional Law course in the UK, but also as globally relevant embodiments of legal theory and jurisprudential insight.

The reason why I think the Miller cases are relevant now is because they represent a tremendous source of optimism. During these times, when the territory of human rights is so frequently invaded by the army of the The Greatest Governments in the World during Operation Corona Desert-Storm, the Supreme Court of the United Kingdom serves as a salutary reminder that we, those who still believe that fundamental freedoms matter, may not be so naïve after all.

In “Miller 1”, the Court had to decide the proper interpretation and application of article 50 of the Treaty of the European Union (“TEU”). Article 50(2) mentions that “A Member State which decides to withdraw [from the Union] shall notify the European Council of its intention”. The UK government, in accordance with the above provision, notified the European Council of its decision to withdraw. The plaintiffs argued that this notification was unlawful, on the basis that it was done without the approval of Parliament. The question before the Court was whether article 50 required, by implication, a state sending a notification of withdrawal to have obtained prior consent from its Parliament or whether, on the contrary, the notification process is a purely executive prerogative. In other words, does the word “state” in article 50 mean “government alone” or “government with Parliament’s approval”? The Court ruled in favour of the latter. One of the main reasons for this conclusion was that “the fact that withdrawal from the EU would remove some existing domestic rights of UK residents renders it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority”[3]. What the UK Supreme Court is therefore suggesting is that, irrespective of the merits of the decision to withdraw and paying full regard to the government’s authority to make decisions of foreign policy, any such decision which directly or indirectly results in the modification of fundamental rights has to have the approval of Parliament, the representative body in charge of protecting those very rights which would suffer modifications. This is another way of saying “when human rights are at stake, we need as many checks and balances as possible”.

In “Miller 2”, the question was similar, in so far as it also arose in the context of UK’s withdrawal from the EU. Prorogation is a political process by virtue of which Parliament is suspended from activity for a limited period of time, in order to mark the transition from one parliamentary session to another. Usually, prorogation can take place annually and lasts for no more than a week. During this time, Parliament does not sit or debate, nor does it vote on any legislation. Prorogation is a royal prerogative, meaning that it is ordered by the Queen, on the advice of the Privy Council. During the summer of 2019, the Prime Minister advised the Queen to prorogue Parliament for no less than 34 days, starting from mid-September and lasting until mid-October. This meant that Parliament would have reconvened only a few days before the 31st of October, the date when the UK was set to officially exit the EU. Given the almost unprecedented length of the prorogation and the “coincidence” of dates, the move was widely seen as an attempt on the part of the government to sidestep Parliament and avoid legislative scrutiny over the withdrawal process. Thus the challenge before the Supreme Court: the order to prorogue Parliament was unlawful – argued that plaintiffs – because it prevented Parliament from carrying out its functions (especially around the time of the withdrawal from the EU, when such functions were of particular importance). The Court agreed and the 11 judges unanimously held that the prorogation was, legally speaking, void. In the words of the Court, “a decision to prorogue (or advise the monarch 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 as a legislature and as the body responsible for the supervision of the executive”[4]. Here one encounters the same leitmotif as in “Miller 1”: the government cannot make decisions which, directly or indirectly, confer upon itself unlimited autonomy and which completely eliminate the scrutiny of the representative body. Again, this judgement can be read as a reminder that when stakes are high, legitimacy ranks above efficiency.

Needless to say that both decisions are a lot more complex than the one paragraph summary above. They raise very specific questions about devolution, British constitutional arrangements and the duality between domestic and international law. However, they also raise very general points about separation of powers, the ideals of representative democracy and the role of the judiciary as a mechanism of preventing and correcting abuses of power. It is some of those broader principles that I wish to focus on. I argue that the way in which the British judiciary understands and applies these principles represents a reason to feel hopeful that the abuses committed by the executive now will not go unpunished.

One important common thread that runs through both cases is the idea of responsibility. Lord Hodge, one of the 11 judges which heard both Miller cases, is an alumni of Corpus Christi College Cambridge. During my time as a law undergraduate at the same college, I had the chance to sit next to him at an annual law dinner (one of my friends jokingly advised me to revise contract law as preparation for “dinner legal chat” – which I actually did). The “Miller 1” decision had just come out a couple of months prior so, evidently, I was eager to get Lord Hodge’s thoughts on it. He told me that it was the first time in history that they formed a panel of 11 justices to hear a case (usually they sit in panel of 5); although they could barely fit around the small table, they knew that all of them had to be involved. He also mentioned, without disdain or resentment, the negative press reaction that the decision received (many saw the judgement as an attack on governmental autonomy), and the multiple personal insults which followed from the media. He spoke of the whole experience with such calm and pleasure, it was as if he was just telling me the story of a particularly eventful Friday in his life. The responsibility of the decision, it seemed, was not a source of pressure, but was rooted in a deep commitment to the idea of justice – he mentioned several times that he felt he had a duty to make the government comply with the law of the land. It is this perspective, I think, which should constitute a source of optimism: framing the judiciary’s role as a responsibility to uphold the law represents a perfect understanding of what justice is – or should be. And this idea of justice can make current times more bearable, because it represents an implicit promise that any legal challenge before courts which think like Lord Hodge would be a challenge taken seriously and decided by considering the legal entitlements that people have, as opposed to the political objectives that governments have.

Another impressive aspect of the decisions is the structure of the judgements. The reason why I think they are globally relevant is because they read as lectures, as legally perfect and elegantly worded explanations of what the law is. In the case of “Miller 2”, the Court reached the conclusion that “the Prime Minister’s advice to Her Majesty [to prorogue Parliament for 34 days] was unlawful, void and of no effect” which meant that “the Order in Council to which it lead was also unlawful, void and of no effect”[5]. Lady Hale then went on to explain what voidness means: “This means that when the Royal Commissioners walked into the House of Lords [with the written Order in Council to prorogue Parliament] it was if they walked in with a blank sheet of paper”[6]. Comparing a legal document which is void to a blank sheet of paper is not only a very astute metaphor but also a perfect explanation of what “unlawful, void and of no effect” means. A conclusion that an order is unlawful is a conclusion which erases writing from paper, deletes the wrong and puts us back in the position of legality as if nothing happened. Thus after the Court decided that the prorogation was unlawful, the natural conclusion was simply that “Parliament has not been prorogued”[7]. Legally speaking, it simply did not happen. This is an important consequence of judicial intervention to correct unlawful acts committed by the executive. It is a source of great comfort to know that a government who has acted unlawfully can be considered never to have acted at all and that courts can decide that autonomy exercised unjustly was, as a matter of law, never exercised.

Last but not least, the Miller cases also reflect a very deep understanding of the concept of law itself. The UK does not have a written constitution. Therefore, in evaluating whether the two decisions of the executive were lawful, the Court did not have a constitutional text to use as a unit of measure. Under English law, the unconstitutionality of a given norm does not mean that the norm is contrary to article X or Y of the constitution, but that is contrary to the rule of law. The rule of law means, broadly, “[t]he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes”[8]. Put simply, the rule of law is an umbrella term which comprises values such as fairness, equality, sovereignty of Parliament, due process, respect for human rights etc. A state in which these principles alone could be enough to assess the lawfulness of a measure is a state in which the concept of law is upheld in its most sophisticated form. It is a state in which the idea of justice is understood in such a profound manner that it need not necessarily be codified. It is also a state in which one could have hope that human rights abuses will be corrected, not necessarily because they are unconstitutional but because they are contrary to what Law means.

I, for one, am hopeful that the sheets of paper which codify current human rights breaches will soon be declared to be, in fact, blank.


***

[1] [2017] UKSC 5

[2] [2019] UKSC 41 [3] R (on the Application of Miller and another) v Secretary of State for Exiting the EU [2017] UKSC 5, para 83. And also: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-press-summary.pdf [4] R (on the Application of Miller) v The Prime Minister [2019] UKSC 41, para 50 [5] Ibid., para 69. I also recommend watching Lady Hale giving summary judgement at: https://www.youtube.com/watch?v=UeLbVQBupWE&list=WL&index=87&ab_channel=UKSupremeCourt

[6] Ibid. [7] Ibid., para 70

[8] Oxford English Dictionary

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