Against the Law by David Renton

Author:David Renton [Renton, David]
Language: eng
Format: epub
ISBN: 9781914420184
Publisher: Watkins Media
Published: 2022-09-15T05:00:00+00:00

Miller no. 2

In summer 2019 and in a context of growing executive power, Gina Miller brought a second judicial review of the government. Her goal was to prevent ministers from proroguing Parliament before the end of the two years allowed under Article 50 to negotiate a departure agreement. The new Conservative Prime Minister Boris Johnson had insisted that the UK would leave the EU by 31 October 2019. Two months before that deadline was reached, on 5 August 2019, the government announced that Parliament would be prorogued (ie suspended) for five weeks. As before, ministers were trying to take a decision out of the hands of Parliament, this time by reducing to the minimum the time under which MPs could debate the terms of the departure.

The power to prorogue Parliament is one of the remaining constitutional powers reserved to the Queen. For that reason, when Gina Miller brought her judicial review of the decision to prorogue Parliament, the High Court held that the issue was not one that was suitable to be determined by the law. Proceedings before the Inner House of the Court of Sessions in Scotland reached the opposite conclusion.13 Both decisions were appealed to the Supreme Court. One front-page headline warned judges to “Stay neutral”.14 Conservative minister Kwasi Kwarteng insisted that the judges were setting themselves once more against the will of the people: “Many leave voters… are beginning to question the partiality of the judges”.15

In normal circumstances, prorogation to prepare a Queen’s Speech leads to a two-week absence; here the government was demanding five. No official was willing to sign an affidavit explaining why the extra time was needed. In one key passage of the Supreme Court’s unanimous judgment, the Court considered ministers’ arguments that they represented the popular will and as such the law was required to bend to them. The issue, the judges replied, was not the relationship between judges and the executives, but the executive and Parliament: “The sovereignty of Parliament would… 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.16 In our constitution, they went on to explain, the executive was the junior partner in relation to Parliament:

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