Last month’s decision in Miller v. Prime Minister by the UK Supreme Court, which declared the suspension of Parliament by the Prime Minister’s actions illegal, follows the early nineteenth century American Supreme Court case establishing the authority of courts to tell the other branches of government “what the law is,” and ordering compliance with it.  It is seen by many as a significant development in the willingness of the UK courts to police the exercise of powers previously thought to lie within the sole competence of the executive branch (the Prime Minister). 

The Miller decision is a step toward the further control of the executive branch by the courts, a principle far more prevalent in the US democratic structure than in the UK.  There are therefore echoes in the Miller decision of Chief  Justice John Marshall’s opinion in the US Supreme Court decision Marbury v. Madison, 5 U.S. 137 (1803), in which Chief Justice Marshall asserted the US Supreme Court’s authority to “say what the law means” and therefore establish itself as the final arbiter of the constitutionality of statutes.  In that case, a customs official appointed by President John Adams at the end of his term was refused his commission by Adam’s successor, President Thomas Jefferson.  Marbury sued the Secretary of State, Madison, to obtain his commission.  In handing the Jefferson administration a victory, the Supreme Court determined that Adam’s appointment of Marbury was enforceable, but that Marbury lost anyway because he should have sued in a lower court.  The Court found that the statute giving the US Supreme Court original, as opposed to appellate, jurisdiction was unconstitutional.  In so doing, Justice Marshall established the principle that the Supreme Court was the final arbiter of what the Constitution  means, and could force the executive to comply with its interpretation.

Scroll forward 217 years, and the UK Supreme Court has taken a similar step.  Over the centuries, power in the UK has developed and moved from the Sovereign (the King or Queen), to Parliament, and more specifically the publicly elected House of Commons, as the final and supreme power within that democratic Kingdom.  Interpretations of the law were performed by the Supreme Court (referred to until 2009 as the House of Lords), but that Court had never overruled the executive on matters relating to the Queen, as was the case here.

The dispute that gave rise to last month’s decision arose from what is called a “prorogation” of Parliament.  Typically each year, Parliament is suspended in anticipation of the Queen’s speech, in which Queen Elizabeth delivers a statement setting forth the policies of her Prime Minister’s government for the coming year.  Parliament is typically prorogued for no longer than two weeks.  In an unprecedented move, Prime Minister Boris Johnson had taken advantage of this concept of the Queen’s prerogative and requested that the Queen prorogue Parliament for five weeks, which the Queen was obligated by tradition to honor. Whilst denied by the Prime Minister, most commentators viewed this as a device to avoid parliament interfering in the run up to the then Brexit date of 30 October 2019, and particularly to avoid parliament preventing the UK leaving the EU on that date if no Brexit deal had been reached with the EU.  In cases brought both in Scotland and in London, the two lower courts came to opposite conclusions, on the one hand viewing the prorogation as legal (the High Court of England and Wales decision), and on the other hand in violation of the UK’s unwritten constitution (the Scottish court).

In a decision issued on September 24, 2019, the UK Supreme Court, in the combined cases of Miller v. Prime Minister and Cherry v. The Advocate General of Scotland, in a first of its kind decision, determined that the actions of Prime Minister Johnston in proroguing Parliament violated the UK’s unwritten constitution because Johnson had failed to demonstrate a basis for the prorogation to be of such length, and had failed to even offer a legitimate reason for its extended length.  In doing so, the UK Supreme Court discussed the Prime Minister’s role as the “Executive” and its own role as the final arbiter of the UK’s unwritten constitution.

The prorogation of parliament had previously been considered to be an exclusive power of the executive, not open to policing by the courts. The decision, therefore, may mark a shift towards an even greater willingness of the UK courts to strike down acts of the executive in the future. It may therefore also be viewed as a move towards a closer alignment with the US system, where the courts are more commonly involved in controlling the executive branch. This expansion of judicial power also raises questions as to whether additional scrutiny of judicial appointments is required in the future, given that judges in the UK are not elected, are difficult to remove and are subject to relatively little scrutiny on appointment. In the US, Federal judges are nominated by the President but must be vetted and approved by the Senate.  It remains to be seen, but the UK court’s step into the political arena may, in turn, lead to a greater politicization of the judiciary and its membership in years to come.

It is a recognition of the brilliance of our own revolutionary founders, and particularly James Madison (main drafter of the US Constitution), that the separation of powers, and particularly the supervision by the courts of the other branches,  is the ultimate protection of the people’s liberties.  It is not without irony that the UK Supreme Court was following that same James Madison’s concepts of judicial supervision by emulating the precedent arising from Justice Marshall’s decision in Marbury v. Madison.

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