Discussion On The Law Suit Of R (Miller) V The Prime Minister
Question
Task: Analyse the concept of ‘parliamentary sovereignty’ with reference to R (on the application of Miller) (Appellant) ‘The Prime Minister
Answer
Introduction
The present report is based the law suit of R (Miller) v The Prime Minister. The concept of Parliamentary Sovereignty has always been a debatable matter in the United Kingdom for a quite long time. Although the concept of the Parliamentary Sovereignty has been inculcated and forming one of the basic foundations of the unwritten constitution of the United Kingdom but its practical implementation and effectiveness in the country has always been under scrutiny. The adherence to the doctrine of parliamentary sovereignty has been questioned and subjected to review by the courts in the case of R (Miller) v The Prime Minister (Respondent) [2019] UKSC 41[1]. This case has invoked the question of the abidance to the constitutional principle relating to parliamentary sovereignty by the executive branch of the government. The concern has been raised upon the prorogation of the parliament by Her Majesty upon being suggested by the Prime Minister. This has been claimed to be subjected to the judicial review on the grounds of being unlawful as brought before court by Miller. The prorogation has been subjected judicial review for being made in violation of the constitutional principle of parliamentary sovereignty[2]. This paper would analyze concept of parliamentary sovereignty as inculcated in the constitution of the United Kingdom and would make reference to the decision in the above mentioned case of R (Miller) v The Prime Minister with respect to the same.
Discussion
The doctrine of parliamentary sovereignty forms one of the most basic principles of the law of constitution belonging to most of the parliamentary democracies. This principle has been forming the most crucial part of the constitution of the United Kingdom. This concept has been holding the legislature of a state to have the supreme authority and undisputed sovereignty over any other institutions of the government. The executive and the judicial bodies would not have the authority to challenge the same. The legislature of a state under this doctrine has the supreme authority of making laws as well as alters or even repeals the same[3]. Hence, the power of the parliament cannot be restricted by any enumerated legislation or any precedent. However, in certain cases it might have the possibility of being restricted in its powers by the doctrine of separation of powers and may be subjected to judicial review. However, in general interpretation the parliamentary sovereignty as inculcated in the unwritten constitution of the United Kingdom has been empowering the Parliament to formulate and enact laws with respect to any of the areas concerned. The power of the parliament in the United Kingdom does extend to bind a future parliament by any restrictive laws that might be passed by them. Moreover, being the ultimate law making institution of the state, the enactments of the parliament of the United Kingdom has the immunity from being interrogated by the judiciary[4].
The observance of the principle of the parliamentary sovereignty has been questioned and abuse of the same has been claimed in the case of R (Miller) v The Prime Minister (Respondent) [2019] UKSC 41[5]. This R (Miller) v The Prime Minister case has been instituted revolving around the deviation from the principle of parliamentary sovereignty that has been alleged to caused by the prorogation which has been ordered by Her Majesty on 28th of August 2019 on being suggested and advised by the Prime Minister[6]. This has prorogation has been disputed by Miller and has been brought before the court for a judicial review contending the advice as imparted by the Prime Minister to Her Majesty which has the effect for having the prorogation as its outcome. The advice as imparted by the Prime Minister has been alleged to be unlawful and was accused being an abuse of the power having the effect of violating the constitutional principle of Parliamentary Sovereignty. This prorogation has been disputed in the court for being an impediment towards the capability for the Parliament in enacting laws. This contention as brought before the court in this proceeding has been based upon the fact that the prorogation has been hindering the Parliament discharging its constitutional functions[7].
The prorogation of the Parliament in this proceeding has been contested with respect to its effect of undermining the parliamentary sovereignty. The question that has been brought before the court in this case of R (Miller) v The Prime Minister was the justifiability of the advice that has been imparted by the Prime Minister. This proceeding has also been questioning the restrictions of the prerogative powers to supersede the parliamentary sovereignty. The prorogation involved in this case of R (Miller) v The Prime Minister has stalled the capability of the Parliament in discharging its functions and has not been backed by any justification that can be said to have been explanatory enough to rationalize the same. As far the prerogative powers are concerned, the court has the authority to review and restrict the same[8]. Moreover, whenever there has been a conflict between the prerogative power and the Parliamentary Sovereignty, the latter would always have an upper hand over the former. Moreover, courts are not authorized to intervene in the Sovereign powers of the Parliament in making laws but on the other hand it has the authority to review and restrict the prerogative powers. The prorogation that has been effected by utilizing the prerogative powers has been a blow in the sovereignty of the parliament as the same has been advised by the Prime Minister for hindering the parliamentary law making powers or to be precise for the purpose of delaying it, which has been backed by political reasons that cannot be justified[9].
In this proceeding, the supreme court has been examining through two of the most basic constitutional principle and has based its decision of rendering the advice of prorogation to be unlawful. These principles include the jurisdiction of supervision as exercised by the court and the principle of parliamentary sovereignty. The contention brought by the opinion supporting the prorogation was the non justiciability of the advice given by the Prime Minister and the prorogation affected by the Queen. However, in this context it has been contended by the Supreme Court the prerogative powers will not be subjected to judicial review if the same has been involving certain political issue but in case of R (Miller) v The Prime Minister the prerogative power has been exercised with respect to some executive function the court would have the authority to exercise supervisory jurisdiction upon the decisions made by the executive wing of the government[10]. Moreover, the prerogative functions of the executive in no way should supersede the principle of parliamentary sovereignty. The exercise of the powers by the executive wings must always be conducted based on the lawful authority. The courts are adequately empowered to review and restrict any exercise of executive power that has been made in an unlawful manner without the appropriate authority.
The findings obtained from the analysis of R (Miller) v The Prime Minister case signifies that the prerogative powers of the executive wing of the government must be exercised only under the supervision of a lawful authority and are also to be exercised in adherence to the parliamentary sovereignty. There should be no instance where the powers has the authority to undermine the sovereignty of the parliament. The work of the parliament should not be hindered by the exercise of prerogative powers by the executive wing of the government. The sovereignty of the parliament forms one of the basic pillars of the constitutional law of the United Kingdom. In this proceeding, the court has arrived upon the opinion that the alleged prorogation has been violating the principle of parliamentary sovereignty in two ways. The first way in which it has been undermining the sovereignty of the parliament was by entering the process of law making of the parliament. The second way of undermining the sovereignty of the parliament by the prorogation in the case of R (Miller) v The Prime Minister was the restriction that has been imposed upon the opportunity of parliamentary accountability. The constitutional mechanisms in an arrangement of parliamentary executive allows the parliament to hold the government consisting of elected member of parliaments to be accountable for the use of their power as executive of the government. The executive wing of the government on the parliamentary proceedings is required to provide an account of the usage of their power and to keep a check upon the power to be used for all the democratic and legitimate purposes[11].
The parliament under the constitutional environment requires all the executives to be questioned for all the actions that they have taken while discharging their powers. The executives are restricted from evading the accountability towards the parliament with respect to their actions. In all the circumstances, the executives are required to discharge their powers for serving the democracy and for reasons legitimate enough to justify their actions. This power of the parliamentary proceedings cannot be undermined by any executive. Any restriction imposed upon the questioning of the executive actions in both the houses of the parliament, the parliamentary scrutiny and the work of the select committee would result in a hindrance in the parliamentary proceedings and it would amount to a violation of the constitutional principle of parliamentary sovereignty[12]. This is because the parliament has the sovereign powers of making laws and no other wing of the government has the power to restrict the parliament from making, altering or even repairing the legislations. Moreover, the parliament has also been given sovereign powers with respect to questioning for asking for accountability from the executive wing of the government. The prorogation as brought under question in this proceeding for a time span of 5 weeks has been reviewed by the Supreme Court to be a denial of the opportunities of the parliament to ask for accountability from the government. The readings used to prepare this R (Miller) v The Prime Minister law suit illustrates that the denial of this power of the parliament has been jeopardizing most basic principle of the constitution. It has been hindering the sovereign powers of the parliament[13].
In the case of R (Miller) v The Prime Minister, the Supreme Court has rendered the decision of prorogation to be unlawful based on the contention that the parliamentary sovereignty and the accountability towards the parliament has been one of the most important constitutional principles and should not be superseded under any circumstances which does not have any legitimate justification. Although during the inception, the concept of parliamentary sovereignty has been confined towards the enactment of legislations but with the passage of time it has also been extended towards the holding of a superior power of the parliament over the prerogative powers[14]. The courts in several proceedings have restricted the government from bypassing the parliament by misusing the prerogative powers. Such an instance has been seen in the case of Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508[15]. Although the executive has been empowered to effect the prorogation of the parliament but the exercise of the same for a prolonged period might restrict the parliamentary proceedings with respect to law making which would in turn hamper the principle of parliamentary sovereignty as conducted by the executive wing of the government. The power of the government conduct of prorogation of the parliament cannot be rendered to be unlawful when the same has been made for a short period of time and for reasonable requirements[16].
Conclusion
The stoppage of the parliamentary sessions for a short span of time cannot be disputed for being violative of the constitutional principle of parliamentary sovereignty. However, it has been observed in the law suit of R (Miller) v The Prime Minister that when such a prorogation has been conducted for the purpose of hindering the parliamentary proceedings for a prolonged period of time and has been backed by the intention of evading the parliamentary accountability and for preventing certain enactments from being passed, the same cannot be kept in the loop of legitimacy. The accountability with respect to the conduct of the government forms the central concern of the democracy. This has been observed by the courts in the case of Bobb v Manning [2006] UKPC 22[17]. In the present case of R (Miller) v The Prime Minister it has been contended by the Supreme Court that the prorogation in this case cannot be said to be a short span of hindrance to the parliamentary proceeding for the Queen’s speech. It had the effect of preventing the constitutional role of the parliament between the recesses of the summer along with the deadline of the Brexit as on 31st of October. The propagation has been declared by the court to be unlawful for being an impediment in the discharge of the legislative functions of the government, which amounts to defeat of the parliamentary sovereignty in the hands of prerogative powers[18].
Reference List
Primary Sources
Cases: Attorney-General v De Keyser's Royal Hotel Limited [1920] R (Miller) v The Prime Minister AC 508
Bobb v Manning [2006] UKPC 22
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41
Secondary Sources
Journals: Alison Young,. "R.(Miller) v Secretary of State for exiting the European Union: thriller or vanilla?." (2017) R (Miller) v The Prime Minister European Law Review 42.2.
Christopher Bickerton,. "‘Parliamentary’,‘popular’and ‘pooled’: conflicts of sovereignty in the United Kingdom’s exit from the European Union." (2019) Journal of European Integration 41.7: 887-902.
Craig Forcese,. "The Executive, the Royal Prerogative, and the Constitution." (2017) The Oxford Handbook of the Canadian Constitution: 151.
Hilaire Barnett,. Constitutional & administrative law.(2017) Routledge.
Jamie Grace, R (Miller) v The Prime Minister. "A Judgment on the Unlawful Prorogation of Parliament." (2019) Available at SSRN 3481673.
Janet McLean,. "Constitution making: the case of “unwritten” constitutions. R (Miller) v The Prime Minister "(2019) Comparative Constitution Making. Edward Elgar Publishing.
Jim McConalogue,. "The British constitution resettled? Parliamentary sovereignty after the EU Referendum." (2019) The British Journal of Politics and International Relations 21.2: 439-458.
John Finnis,. "The unconstitutionality of the prorogation judgment." (2019) Quadrant 63.11: 20.
Keith Ewing,. "Brexit and parliamentary sovereignty." (2017) The Modern Law Review 80.4: 711-726.
Paul Craig,. R (Miller) v The Prime Minister "The Supreme Court, Prorogation and Constitutional Principle." (2019) Forthcoming in Public Law.
René Reyes,. "Legislative Sovereignty, Executive Power, and Judicial Review: Comparative Insights from Brexit." (2016) Mich. L. Rev. First Impressions 115: 91.
Sebastian Payne,. "The Supreme Court and the Miller Case: More Reasons Why the UK Needs a Written Constitution." (2018) The Round Table 107.4: 441-450.
Simon James,. "‘The Case of the Century’: The Supreme Court and Brexit."(2017) Britain and the World 10.2: 217-237.
Tom Frost, Rebecca Huxley-Binns, and Jacqueline Martin. Unlocking the English legal system.(2019) R (Miller) v The Prime Minister Routledge.
[1]R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41
[2]Sebastian Payne,. "The Supreme Court and the Miller Case: More Reasons Why the UK Needs a Written Constitution." (2018) The Round Table 107.4: 441-450.
[3]Alison Young,. "R.(Miller) v Secretary of State for exiting the European Union: thriller or vanilla?." (2017) European Law Review 42.2.
[4]René Reyes,. "Legislative Sovereignty, Executive Power, and Judicial Review: Comparative Insights from Brexit." (2016) Mich. L. Rev. First Impressions 115: 91.
[5]R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41
[6]Keith Ewing,. "Brexit and parliamentary sovereignty." (2017) The Modern Law Review 80.4: 711-726.
[7]Jim McConalogue,. "The British constitution resettled? Parliamentary sovereignty after the EU Referendum." (2019) The British Journal of Politics and International Relations 21.2: 439-458.
[8]Simon James,. "‘The Case of the Century’: The Supreme Court and Brexit."(2017) Britain and the World 10.2: 217-237.
[9]Paul Craig,. "The Supreme Court, Prorogation and Constitutional Principle." (2019) Forthcoming in Public Law.
[10]Jamie Grace,. "A Judgment on the Unlawful Prorogation of Parliament." (2019) Available at SSRN 3481673.
[11]John Finnis,. "The unconstitutionality of the prorogation judgment." (2019) Quadrant 63.11: 20.
[12]Christopher Bickerton,. "‘Parliamentary’,‘popular’and ‘pooled’: conflicts of sovereignty in the United Kingdom’s exit from the European Union." (2019) Journal of European Integration 41.7: 887-902.
[13]Craig Forcese,. "The Executive, the Royal Prerogative, and the Constitution." (2017) The Oxford Handbook of the Canadian Constitution: 151.
[14]Janet McLean,. "Constitution making: the case of “unwritten” constitutions."(2019) Comparative Constitution Making. Edward Elgar Publishing.
[15] Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508
[16]Tom Frost, Rebecca Huxley-Binns, and Jacqueline Martin. Unlocking the English legal system.(2019) Routledge.
[17] Bobb v Manning [2006] UKPC 22
[18]Hilaire Barnett,. Constitutional & administrative law.(2017) Routledge.
