Here is a longer version of a post on the Judicial Power Project symposium on Miller 2:
Executive dominance has been weakened in the United Kingdom over the past decade and a half. While debate will continue about how the Supreme Court found that the prorogation of Parliament was justiciable and unlawful, Cherry/Miller 2 is arguably less remarkable when put in the context of the executive’s waning dominance in Britain’s constitutional order. Put simply, the prorogation judgement reflects a larger parliamentary and judicial effort to dampen the strength of the executive in constitution. This does not take away from the constitutional evolution that the judgement has helped advance, but it does raise questions about how much discretion should be left with the executive in this new equilibrium.
Westminster states are typically known for their dominant executives and relatively weak legislatures –though this may only still apply to one member of the Westminster family, Canada. Thanks to cabinet solidarity, party discipline, a majoritarian electoral system, and parliamentary procedures prioritizing government business, the British executive was once thought to exert significant control over the legislature. The prerogatives of the Crown, moreover, gave ministers discretion over matters of state, such as foreign and military affairs, and the life and cycle of Parliament, through the powers of dissolution and prorogation. The government was held to account in Parliament for the exercise of executive power, and if the House of Commons felt that the ministry was no longer fit to hold its confidence, an election could be held to give voters a chance to express themselves. With the responsibility of governing came an equal measure of accountability to Parliament and the people, though the executive was the dominant actor between elections owing to the advantages and prerogatives it enjoyed.
Calls to curtail the executive’s dominance have been heard for decades in the United Kingdom, but the 2003 Iraq War galvanized reformers. In the years since the war, the British constitution has underdone notable constitutional change aiming to rebalance the relationship between the executive and the legislature in Parliament’s favour. As the title of a 2003-2004 Commons Public Administration Committee report revealed, there has been a movement to ‘tame the Crown’. Facilitated by an increase in backbench rebelliousness and a coalition government, significant reforms were achieved within a decade: placing the civil service and the navy on a statutory footing, subjecting treaties to greater parliamentary scrutiny prior to ratification, a practice of seeking parliamentary approval for combat operations overseas, the election of select committee chairs by secret ballot, the establishment of a backbench business committee, the publication of a cabinet manual, and most importantly, the transfer of the Queen’s power to dissolve Parliament on the advice of the Prime Minister to the House of Commons.
The Supreme Court also contributed to this taming. In Evans, the Supreme Court ruled against the Attorney General’s decision to protect Prince Charles’ ‘spider memos’ from disclosure. Defenders of the government noted that the Court arrived at this outcome through a rather creative interpretation of statute. In Miller 1, the Court denied that prerogative power could be used to trigger article 50 of the Lisbon Treaty and that an Act of Parliament was required to do so. While champions of parliamentary sovereignty applauded the decision, commentators did observe that the Court’s treatment of the prerogative was surprising.
With Prime Minister Johnson’s commitment to withdraw from the European Union by 31 October 2019, efforts to submit the executive to Commons control took on greater urgency. House of Commons standing order 24 was thus used to take control of the agenda and pass legislation to prevent a ‘no deal’ Brexit. While he may yet manage to force through ‘no deal’, at this stage it appears that the Prime Minister is boxed in: unable to meaningfully hold confidence, checked by parliamentary control of a Brexit agreement, and dependent on his opponents to hold an election. Whether an election is held in the coming months or not, it is not unlikely that standing order 24 will be used to further constrain the executive when the Commons sees fit, while the Prime Minister is left without their previous ability to dissolve Parliament in response. Whatever else this may be, it is not a dominant executive.
In the lead up to Johnson’s premiership is it perhaps not surprising that defenders of the previous constitutional order began musing about how the Crown’s remaining prerogatives might be used to push back against Parliament. Suggestions that the Queen might be advised to withhold royal assent and to prorogue Parliament to ensure an exit from the European Union were two proposal that were floated. For advocates of parliamentary primacy, these ideas represented an abuse of power and evidence that executive discretion required further curtailing. For defenders of the executive, on the other hand, novel uses of the prerogative were justified in light of the Commons’ stifling of the government’s freedom of action.
Ultimately, advice to withhold royal assent was not proffered (yet), but the Queen was advised to prorogue Parliament for an extended period of time. In this symposium, Nick Barber has described this move as a form of constitutional hardball. To use Alison Young’s terminology, we might also see the prorogation as a kind of constitutional counter-counterbalancing. Either way, the executive deployed one of its remaining prerogative authorities to counter parliamentary opposition to Brexit.
In the past, advice to prorogue Parliament would likely have been deemed non-justiciable, as the Divisional Court found. The Supreme Court, however, ensured that its ruling reflected and advanced the rebalancing of power between the executive and Parliament. In so doing, the Court has opened the possibility of further judicial constraints on executive discretion. As Stephen Tierney has argued as part of this symposium, the Court deployed a novel understanding of the judiciary’s role in determining the scope and extent of a prerogative to rule that the prorogation was unlawful. It also elevated the convention of the executive’s accountability to Parliament to the status of a constitutional principle, allowing it to be judicially enforced.
Although the judges held that the ruling was a ‘one off’, it is certainly plausible that other exercises of prerogative authority could be subject to these wider standards of judicial review. A military deployment, for instance, could conceivably be found unlawful if the courts find that its stated purposes were illegitimate, or if a failure to first secure the approval of the House of Commons is found to be contrary to the constitutional principal of executive accountability. In theory, many decisions that might have been considered political questions or matters of ‘high policy’ are now open to judicial override. That said, the judges did not question the existence or legitimacy of the prerogative itself, only how it was used in this instance.
Where does this leave the executive? Certainly, the prorogation has reinforced the sense that the royal prerogative is open to abuse and that efforts to ‘tame the Crown’ should continue. Prorogation’s days as a prerogative exercised on the advice of ministers may be numbered, as a result. Yet the past decade and a half of reform, the troubles of the Johnson government, and Cherry/Miller 2 suggests that efforts to constrain the executive have essentially succeeded. Perhaps the issue now is what discretionary powers and prerogatives the executive should be preserved, not how many more must be curtailed.
Granted, this is not a discussion that is likely to be dispassionate in the context of Brexit. But once Brexit is settled, it may be worth asking what kind of powers and discretion should properly belong with the executive in the British constitution. As the Supreme Court itself emphasized, the British constitution operates with a separation of powers and according to the principle of responsible government. This then leads one to ponder: what powers and responsibilities should belong with the executive as a separate, if submissive, organ of the state?