Miller, R (On the Application Of) v The Prime Minister

The exercise of a prerogative power is not automatically justiciable. The court must first ask whether the subject matter is amenable to judicial standards. Decisions involving high policy or political judgment fall outside judicial review where no legal measure exists by which their legality can be assessed. The advice to prorogue Parliament, including its timing and duration, was inherently political. Parliamentary sovereignty does not create a wider, legally enforceable right for Parliament to sit continuously or conduct its business without interruption. The purpose of prorogation is not confined to preparation for a Queen’s Speech and may include obtaining political advantage.

The claimant sought judicial review of the Prime Minister’s advice to the Sovereign to prorogue Parliament from a date between 9 and 12 September 2019 until 14 October 2019. She argued that the advice was an abuse of power, frustrated Parliamentary sovereignty and parliamentary scrutiny, and was influenced by improper considerations connected with the United Kingdom’s withdrawal from the European Union.

The Divisional Court heard the claim alongside written interventions supporting it. The central question was whether the advice was legally reviewable and, if so, unlawful on ordinary public law principles.

1. Disposition. Permission to apply for judicial review was granted, but the claim was dismissed. The court also acceded to an application for a leapfrog appeal to the Supreme Court under section 12(3A)(c) of the Administration of Justice Act 1969, subject to leave to appeal.
2. Justiciability comes first. The source of a prerogative power does not itself determine reviewability. The court must first consider its subject matter. Political or high-policy matters are non-justiciable where there are no judicial or legal standards by which their legality can be assessed. The court rejected the submission that every prerogative power is reviewable subject only to judicial caution.
3. Prorogation. The Prime Minister’s decision as to when and for how long Parliament should be prorogued, and the advice given to the Sovereign, were political in nature. The evidence disclosed practical, legislative and political considerations, including preparation for a Queen’s Speech, the parliamentary timetable before 31 October 2019, conference recesses and the unusually long current session. There was no legal measure for determining whether the duration was excessive.
4. Purpose and Parliamentary sovereignty. Even if prorogation was intended to advance the Government’s political agenda concerning withdrawal from the European Union, that did not make the decision justiciable. Prorogation is not confined to preparation for a Queen’s Speech and may be used to obtain legislative or political advantage. Parliamentary sovereignty means that the Queen in Parliament may enact primary legislation without legal restraint, subject to restraints Parliament has imposed on itself. It does not entail a judicially enforceable right to uninterrupted parliamentary sittings or business.
5. The court declined to expand Parliamentary sovereignty in a way that would invite judicial control of the constitutional relationship between Parliament and the Executive, which is governed by statute, convention and parliamentary procedure. The decisions in Miller No. 1 and the Fire Brigades Union case concerned different issues and did not require a different conclusion.

This was a first-instance decision of the Divisional Court. Parallel proceedings in Scotland had been dismissed by Lord Doherty in the Outer House of the Court of Session; an appeal was proceeding in the Inner House. The court granted permission for a possible leapfrog appeal to the Supreme Court under section 12(3A)(c) of the Administration of Justice Act 1969.