Prerogative, Justiciability, and the Customary Constitution: A Critical Analysis of the Miller (No. 2) Case

Executive Summary

The Crown and the U.K. Parliament are at the heart of the British Constitution. Their mutual relation, regarding the prorogation prerogative, was the subject of the Cherry/Miller (II)[1] judgment. This judgement was handed down amid the Brexit crisis, during which the Prime Minister, Boris Johnson, advised the late Queen to prorogue Parliament, and which the Supreme Court declared ultra vires and of no effect.[2]

Poole calls the Case “the most significant judicial statement on the constitution” in centuries.[3] Whilst this is disputable, its significance is certain, and has generated much controversy. Here we aim to evaluate of the substantive legal doctrine of the Supreme Court’s judgment. We take lights from the substantial literature already developed in support or in critique of the judgment.

I clarify the customary basis of the Constitution as defining the “proper function”[4] (in law) of the Court as determinative of justiciability. I then consider the principles constituting the standard of justiciability, considering the customary “enabling context” of the Constitution.[5] My analysis demonstrates that the Court misapprehended its own position in the legal Constitution as it stood when the judgment was given, and the basis of its position, whilst misstating the principles it posited. I indicate that only a change in the customary legal Constitution can render Cherry/Miller (II) a correct statement of the law. It is not my object in this essay to consider whether the judgment was democratically legitimate or beneficial, but to perform a consideration of the law as it stood at the time the judgment was handed down.

The Legal-Constitutional Relation of the Royal Prerogative to the Crown-in-Parliament: An Evaluation of the Supreme Court’s Cherry/Miller (II) Judgment.

1. Introductory Observations

• General introduction

The Crown in Parliament’s ultimate Sovereignty is the fundamental doctrine of the British Constitution.[6] The Crown’s senior legal authority acting “as executive”[7] is similarly a core constitutional arrangement. They are such because of the historical circumstances leading to the customary consent of the senior legal officials of the British State to the enactment of laws by the King in Parliament being absolutely binding,[8] even though this has been questioned more recently in obiter dicta.[9] The senior authority of the Crown in the Constitution, described later as Derivatively, or Secondarily, Sovereign arises for the same reason.[10]

 The doctrine of Parliamentary Sovereignty was invoked[11] alongside Parliamentary Accountability as two ‘principles’ of constitutional law in Cherry/Miller (II) which may be used to adjudicate the use of the prerogative of prorogation inasmuch as their operation may be impeded unreasonably using the prerogative.[12] Cherry/Miller (II)’s ratio, characterisation of constitutional principles, and its legal-constitutional justification of justiciability of prerogative has uncertain soundness. The potential errors in the judgment are significant and may have legal repercussions for decades, if not centuries, to come. Indeed, Poole considers Cherry/Miller (II) “the most significant judicial statement on the constitution” in two centuries.[13] In the context of the vast constitutional jurisprudence generated in the last two centuries, this contention may be disputable, but the enduring significance of the prorogation case is certain.

Here we propose to evaluate the orthodoxy of the Court’s understanding of justiciability as to the Crown’s prerogatives. It seeks also to evaluate how the doctrine regarding prerogative and its relation to Parliamentary Sovereignty, and Executive Accountability is interpreted in Cherry/Miller (II). As we shall see, the Supreme Court therein seems to have a mistaken view of the customary “enabling context” [14] of the British Constitution, and so too highly judges its own position in relation to constitutional principles. The significance of the judgment has generated a large literature which it is impossible to exhaustively address in any depth here. We shall adhere to judgement itself, which is illuminated by reference to pertinent authors who aid us in understanding the legal development attempted by the judgment.

• General Literature Overview

We focus on Cherry/Miller (II) with reference to previous case-law. This includes the GCHQ Case[15] because their Justices do not seem to fully account for its implications to their judgment regarding the non-justiciability of certain prerogative powers based on their nature and subject matter excluding them from the judicial process. We apply the still valid rule in Shergill,[16] cited by the High Court in Miller (II),[17]  as the standard for determining justiciability.

The De Keyser’s Case is our case-law, and customary legal-constitutional witness to the legal conceptualisation of Parliament as the united but separate “three estates” of the Lords Spiritual and Temporal, and the Commons united to the ‘head’ of the Crown representing the whole body of the “realm”.[18] We assume the correctness of Lord Atkinson’s characterisation, adopting it as essential to its legal-analytical framework, and we shall use legal literature preceding the judgment to tease out Lord Atkinson’s meaning.

Finally, the last authority very significant to our discussion is Burmah Oil.[19] Therein is made a distinction in the levels participation in Sovereignty[20] which we shall note is material to regarding the relation of Crown and Parliament, showing an error in Cherry/Miller (II).

Goldsworthy’s philosophical framework in (to quote Lord Bingham) his “magisterial”[21] The Sovereignty of Parliament[22] and Jean Porters work on the grounds of legal authority, especially of constitutions as grounded in custom as their “enabling context”[23] are fundamental. Both accept modified forms of Hart’s theory of constitutional customs,[24] and they contribute towards the theoretical and historical framework for our discussion. Since the British Constitution is customary, and uncodified, the adoption of an analytical framework from which to evaluate constitutional-legal questions is even more pressing. Helmich has written: “Constitutional theory is helpless without the greater narratives of political philosophy”.[25] To this we may add that constitutional law, considered as ideas-in-practice(whether it exists implicitly in practical custom, or is explicitly imposed) exists in a legal-philosophical matrix. This matrix, as is implicit in our later discussion, cannot be divorced from the law itself. Philosophy (legal and moral) is the meaning-providing soul of the law.[26] Without it, law is helplessly incomprehensible.[27]

In our engagement with the literature, relevant ideas in it will be enunciated as our discussion progresses. Here we may group the authors to whom we give significant consideration by their respective stances towards the judgement. Historical literature is cited because of its continuing theoretical-legal significance.

Especially favouring the judgment are Craig[28] and particularly Elliott whose arguments before the judgement are generally mirrored by their Justice’s opinion itself.[29] Elliott argues that the judgment is orthodox, or constitutes an orthodox development.[30] As such the Court’s enunciation of the parameters of justiciability, and the characterisation of the principles making its standard of justiciability would be legally sound.

Young’s blog[31] before the Supreme Court judgment is also considered because it is relevant to discussing the limits of legal-constitutional development. Young even considers that Cherry/Miller (II) should give the judiciary the impetus to protect even more purported legal principles.[32] It shall be argued that such a view misstates the Court’s jurisdiction and its relation to legal-constitutional and political-constitutional principles. Indeed, Lord Sumption, a more moderate supporter of the judgement, considers that the Court converted a convention into law.[33] Lord Sumption’s view we think to be quite proper for one supporting the judgment, for it is not right to dress up in pure legal terms a judgment which manifestly moves beyond the law into policy considerations. Daly[34] and Helmich[35] are other supporters whose reservations about the distinction between legal and political we take seek address as our discussion develops.

Against the supporters of the judgment, are those who consider the judgement mistaken. Among these are Finnis,[36] Ekins,[37] Spadijer,[38] Loughlin,[39] and Endicott.[40] Ekins considers the judgment as falsely stating the jurisdiction of the Court, misstating the formal rule of Parliamentary Sovereignty by adding it to it conventional elements, and by converting conventions of responsible government into legal rules.[41] Finnis similarly agrees, but, we respectfully submit that his argument relies too much on the Bill of Rights (1688) which we shall see was at least arguably considered correctly by the Court.[42] The way Finnis formulates his argument is weak and open to the criticisms I make herein, though I have defended his view of the Bill of Rights in greater detail in Part 1 and Part 2 of my analysis of ‘Proceedings in Parliament’.

Spadijer argues similarly to Ekins, but roots himself in the customary witness of the legal-constitutional practice of the British Constitution, complemented by relevant, illustrative Commonwealth precedents.[43] This circumvents Craig’s argument against conflating comparative law and domestic law.[44] For, the similarity of Commonwealth Constitutions to the British, and the origin and parallel development of legal concepts makes reference to them (with due caution) legitimate.

Loughlin and, particularly, Endicott are perhaps the maturest of the critics of Cherry/Miller (II) who adopt an approach like the aforementioned critics, but also consider, to varying degrees, the relations between the senior branches of the State to the judiciary.[45] Endicott also mentions the case of “necessity” in justifying legal unorthodoxy which we develop in our analysis of customary constitutional law apropos the judgment.[46] Thus, here we seek to take up threads latent in the literature itself, and, adopting a more explicitly doctrinal mode of analysis, develop and refines the critique of Cherry/Miller (II).

• The Legal-Doctrinal Issues

The legal-doctrinal issues facing us are linked to the effective operation of Parliament apropos an objective understanding of the separation of powers as existing in the British Constitution. The following questions arise. Do the rights (prerogatives) which the Crown-in-Council (executive) exercises regarding the Crown-in-Parliament (legislature) affect Parliamentary Sovereignty, formally and, in a related manner, practically? Is the practical exercise of these specific powers a question of law subject to judicial review (to the judiciary)?[47] As regards the interplay of both previous considerations, are the courts to be legally regarded as the guardians[48] of the Constitution, especially regarding Parliamentary Sovereignty, from the abuse of prerogative?[49] Or is it a political question of responsible government[50]  which the Supreme Court has no competence to adjudicate? Depending on how we answer these questions, we shall see if the Court has made fundamental errors in its conceptual framework of the Constitution and its understanding of the law by pushing the ambit of judicial review too far. We shall analyse the preceding questions by first tackling the issue of justiciability, considering the uncodified customary legal basis of the Constitution. Then we shall address the accuracy of the Court’s assessment of the principles of Parliamentary Sovereignty and Executive Accountability. The latter we shall discuss also in relation to “responsible government”.[51] Finally, we shall return to the relative constitutional position of the Court, as regards the principles it enunciates as its standard for justiciability.

• 2. Legal-Constitutional Basis of the Supreme Court Decision

We may detect three key currents in the Supreme Court’s reasoning. The first is the claimed “proper function” of the court to limit, or control, illegal uses of prerogative.[52] The second is, a broad view of Parliamentary Sovereignty.[53] Following from the second, is the duty of Parliament to hold the Executive in account and the court’s right to assist Parliament in this.[54] The last two constitute the principles, the apparent standard by which the Court judged the prorogation.[55] They being complementary, may be analysed together. Before considering all this, we must consider the legal background to the judgment.

A) Legal Background on Justiciability of Prerogative vis-à-vis Cherry/Miller (II)

The prerogative may be defined as the residual, customary powers for discretionary use by the Crown.[56] Among the prerogative powers are those “reserve powers of the Crown” exercisable without Parliamentary or ministerial consultation,[57] though Parliament may legislate upon them.[58] They are exercised by the executive, which is, de jure, the Crown-in-Council[59] or by the King acting personally, having the Crown vested in him.[60] These powers arise from law and are defined at common-law.[61] At common-law, the courts may determine not only the existence and extent of these powers, but also judicially review their use.[62] This judicial review does not extend to those powers whose nature and subject matter, being inherently matters of political prudence, cannot be judicially reviewed,[63] a rule Cherry/Miller (II) at least nominally upheld,[64] though if it appropriately interpreted this rule is questionable.

Cherry/Miller (II) clearly stated that the general justiciability of prerogative powers was by now well established in that for four centuries the Constitution has increasingly recognised the justiciability of prerogative powers.[65] Indeed, as the High Court said,[66] this was established firmly in GCHQ where the nature and subject matter of a power was held to make it justiciable or not.[67] The High Court cited several authorities stating that “political” decisions were not amenable to review, [68] particularly citing the Supreme Court’s criteria in Shergill on a non-justiciable “political” decision. Such a decision is one that (a) “trespassed on the proper province of the executive” as the “organ of state” entrusted with the exercise of a power. The second criterion (b), which can be further subdivided, that there were not, first, judicially discoverable, and, second, (legally) “manageable standards” to judge such a use of prerogative powers.[69] These criteria remain binding and help illustrate why Lord Roskill considered Parliamentary dissolution non-justiciable.[70]  This may be pithily summarised by the Zimbabwean (but persuasively applicable) formulation that the rule depends on if the executive body is in a “unique constitutional position” rendering it politically accountable to Parliament, not the courts.[71] For the executive, not the courts, is “best judge” of how to take into consideration inherently political matters.[72]

Cherry/Miller (II) importantly observed that all decisions concerning the judicial “supervision” of prerogative have a “political hue” to some extent, and that this does not itself exempt an exercise of prerogative from justiciability.[73] Indeed, following Shergill, it is the lack of a legal rule possibly being manageably enforced which makes a prerogative un-judicable.[74] The Court thus posited that the principles of Parliamentary Sovereignty and Executive Accountability provided the relevant legal standards by which to judge prorogation.[75] In doing so, it adopted a different understanding of Parliamentary Sovereignty than is orthodoxly described, and it wrongly elevated Executive Accountability to Parliament to a legal principle.[76] The Court’s faulty understanding of Parliamentary Sovereignty, and its relation to the legal Constitution seems to be responsible for this. To defend this view, we must consider on what conceptual basis the Supreme Court made its decision.

B) The constitutionally “proper function” the Court [77]

(i) The Bill of Rights (1688)

Regarding the Bill of Rights, the Court cited relevant authorities essentially distinguishing the authority of the Crown-in-Parliament from the authority of the Crown-in-Council exercising prerogatives adjacent to the Crown-in-Parliament (i.e., prorogation).[78] One might argue that is a subtle mistake, to confuse these two distinct legal modes of the Crown, as Finnis does.[79] For the sake of developing my constitutional arguments here without a lengthly excursion defending Finnis’s views I concede that point, though I have defended it elsewhere.

It is correct, however, that the royal assent (itself a “proceeding in Parliament”[80] and not justiciable, following Barclay)[81] signified during the prorogation proceedings was not thus nullified as part of the proceedings.[82] It is the Crown qua the ‘head’, that is, the chief constituent part of Parliament, which exercises the Assent prerogative.[83] As a prerogative adjacent to, as supportive of, the Crown’s ultimate control of Parliament (seen in its full power in Assent), prorogation would thus be non-justiciable. Craig, basing himself on Twomey’s blog, failure to appreciate this might taint his view of the Bill of Rights, and we shall further critique that theory in a later section.[84] True, the Bill of Rights does not itself prevent the adjudication of prorogation, but the matters related to what is an article 9 “proceeding in Parliament,” it is proposed, do prevent adjudication.

However, we shall return to the analytical distinction of adjacent prerogatives (as differing from ordinary prerogative) made here, later. Indeed, the nature of Crown as a constituent part of the legislature,[85] while manifesting in related but different forms, shall be seen to be one of the core matters regarding Cherry/Miller (II). It is not clear if the Court was right to say that merely because a prerogative is not part of the essential business of Parliament, then therefore it is non-judicable, even if the Court was right about the Bill of Rights not providing for such a case.

(ii) The Case of Proclamations (1610)

Important in determining if the Court was right in claiming that its role was that of supervisory jurisdiction[86] is if the authorities it cites support its claim. It is curious, therefore, that the Supreme Court should seek to cite the Case of Proclamations, [87]  not merely on the grounds that it is only presently good law supporting judicial review, [88] but also that it is precedent that “political controversy” ought not to deter the Court from rendering judgment on use of prerogative.[89]

This arises from the nature of the Case of Proclamations which is, in some ways, analogous to Cherry/Miller (II). The Case is described as being part of constitutional change in the sixteenth and seventeenth centuries towards the removal and limitation of the King’s prerogative to personally administer justice.[90] Indeed, in Miller (I) their Lordships recognised that thoughthe Case of Proclamations was “controversial” in its own time, it was “firmly established” eventually.[91] The way it was established illuminates a problem with Cherry/Miller (II) itself, and Dicey is helpful to this end.

First, it is uncontroversial to state that the earliest authorities show that the Royal Courts acted in the name of the King, and embodied his will even if his personal involvement was “obsolete”.[92]  However, it does not logically follow that a prerogative may cease to be actively exercised and simultaneously be extinguished, since it may become a reserve power, a rationale used in the Stuart revival of several disused prerogatives.[93]  However, Lord Coke crystallised a practical reality into a legal rule by employing, as Dicey says, “artificial” and “unhistorical” reasoning.[94] This “induced or compelled” the King, a senior legal official, to cease attempting to personally adjudicate cases.[95]

Here we may safely conclude that it was not so much the soundness of legal reasoning which established the rule, but a change in the customary recognition of the constitutional rule regarding that prerogative. This represents, therefore, a political-constitutional dispute, touching questions of theoretical conceptions of law and the constitution of political authority. It shall be demonstrated that such was also the case with Cherry/Miller (II),[96] and for this we must clarify what has been asserted about customary consent and constitutional law. As regards reserve powers, modern case law has at any rate clarified the legal position stating that a prerogative’s disuse does not extinguish it but it, at least now, applies for a case “not covered by statute”.[97]

(iii) The Groundwork of Constitutional Law

The fact that a written constitutional instrument is considered legally binding, may be said to be because those who exercise power in a polity, by their practical adherence to it, give it continuing effect in the day-to-day governance of the State. It is thus not so much the mere writing, but the acceptance of a constitutional instrument by customary adherence, by customary interpretations of it (e.g., in constitutional jurisprudence), that renders it valid. Such is the case with the United States.[98] Much more so in the United Kingdom is constitutional law grounded in customary law, where there is no single document which can be appealed to as “the constitution”.[99] Their Justice’s at paragraph [39] recognise that the Constitution has thus “pragmatically” developed, but simultaneously contains certain legally enforceable principles. Leaving aside, for now, the enforceability of all these principles, we may more clearly reformulate the essence of what is said there.[100] We may say that the ‘reason’, or collective mind, of the senior legal officials contains certain notions of governance which are embodied by the institutions of governance which they constitute in practice.[101]  So, in the United Kingdom the senior legal officials are constituted by the King in the person of the Crown or the Crown’s Executive Officers,[102] and the members of the Houses of Commons, and Lords, and the judiciary. This itself should be relatively uncontroversial since all these exercises some essential authority in the three-fold distinction between the Executive, the Legislature, and the judiciary.[103]  

The Court then proposes that the courts have an especial duty to uphold and “make … effective” these values and principles of law, effectively refereeing the exercise of powers within their proper bounds.[104] That is very well, except that it had previously been considered that not all exercises of legal powers will be amenable to being enforced by the courts, but by the political avenues of Parliament, as we have discussed. The Court (at least nominally) recognises this, but also maintains the legal exercise of the power is amenable to review, is quite problematic as we shall see later on in subsection (iv) below.   The Court itself considers that the sources of the constitutional law that principles are either contained in are Statute or are “developed by the common law” (emphasis added).[105] Immediately thereafter, it enunciates Parliamentary Sovereignty and Parliamentary accountability.[106]

Here lies a major fault in the Court’s reasoning. It may be that the Courts have proposed certain principles, but it does not follow that it is merely because they have proposed them that they have become law. Consider our discussion of the Case of Proclamations, where the legal rule proposed therein was only legitimised by a change in the customary constitution, underpinned by the rule of recognition.[107] Otherwise, a change would be inherently illegitimate by reason of there being no agreement, or implicit permission for such a change. The courts may initiate a change in the customary constitution, or in the rule of recognition, but this is hazardous, since it requires that all other senior legal officials to agree – or at least acquiesce – to the change, which is not guaranteed.[108] It is, thus, submitted that constitutional legal principles emanate first from the agreement of the senior legal officials, and are embodied by Statute and in recognition at common-law. Though these are not necessary for their existence, since the principles, being contained in the “enabling context” of the rule of recognition, themselves precede both Statute and the common-law.[109] The basic law itself, the particular nature of which is expressed in principles, thus, must lie before any positive legal institutions, or instruments empowered by it. In sum, the customary Constitution operates in a way analogous to the Rule of Recognition, which is itself the most fundamental of all the customary constitutional laws.

The Court sought to make explicit what it thought were justiciable legal principles, but it instead committed various errors (later examined) in attempting to develop the law, but in terms of constitutional theory (whether it realised it or not) de facto attempted a change in the customary constitution. This is implicit in the reasoning of commentators who assert that the judgment was a “correct conclusion” in the law.[110] This is based, inter alia, on current constitutional circumstances justifying an extension of judicial control of prerogative, and the Courts apparently having the authority to extended controls to defend even such ideas as democracy, which is itself only a relatively recent British constitutional development.[111] The theory in the next subsection shows why this would not be legitimate.

• The Doctrinal Misunderstanding in Cherry/Miller (II)

The Courtwas reductive in assuming that besides Statute it is the common-law where these principles are contained, and in not considering that there may be principles which are legal but not judicially enforceable.[112] As our discussion has shown, the customary constitutional law is grounded in the agreement of the senior legal officials, itself legitimated by the implicit consent of the governed, without which no government is possible.[113] It is submitted that the prerogative is of such a nature that the court does not have the authority to encroach upon it unilaterally, which we shall show has (perhaps accidentally) done in the judgment. It is not necessary that we invoke the Case of Proclamations again. However, in paragraph 40 the Court passingly refers to Burmah Oil[114]wherein are contained dicta useful for our purposes. Therein, it is stated that at a point in British history, presumably the 1688 Revolution,[115] it was settled that Absolute Sovereignty was found in the Crown-in-Parliament. However, the estates of Parliament united to the Crown chose to leave a certain portion of Sovereignty in the form of high prerogative powers such as waging war, and presumably prorogation and parliamentary dissolution, with the Crown as Executive.[116] To clarify this dictum, one may say this is a kind of Conditional Sovereignty, itself dependant on and derived from the ultimate Sovereignty of the Crown-in-Parliament, analogous (but not identical) toa steward exercising wide authority, dependant and derivate from the householder under whose authority he is placed.

Historically, in the 1688 Revolution it was the Houses of Commons and Lords who had the greatest influence in the settling of the rule of recognition such that the Crown-in-Parliament was recognised as ultimately Sovereign, with the other senior legal officials submitting with varying degrees of willingness.[117] So, such fundamental constitutional legal principles might be recognised by the Courts, as a sign of their adherence to the customary constitution, but never unilaterally modified by them because they are not their sole parents, but rather one of various formulators.

Applying this to prerogative, we may consider GCHQ again, in terms of its constitutional-legal basis and its doctrine. Taken historically, is quite clear that had the judiciary attempted to establish judicial review of the sort allowed after GCHQ during the reign of James I, or even later, when the rule of recognition accorded prerogative a higher constitutional position apropos Sovereignty, then the vigorous opposition of the executive in allowing such a change would have frustrated such judicial efforts.[118] From this we may conclude that the meaning of the old judicial review law being “overwhelmed” by then current developments meant also that the customary Constitution had already shifted to accommodate the constitutional formulation in GCHQ.[119] Thus, the customary constitution, underpinned by the rule of recognition, from at least 1984, the year of the GCHQ judgment, to 2019, the year of Cherry/Miller (II), recognised judicial review for ordinary prerogatives with the proviso that certain matters of high policy for which the executive was the “best judge”,[120] which we shall call ‘Prerogatives Adjacent to Sovereignty’. These ‘Adjacent Prerogatives’ thus form the ‘Conditional Sovereignty’ which remains subject to the Absolute Sovereignty of Parliament.[121]

Here, again, we see a doctrinal problem in the Supreme Court judgment. As we have observed above, the Court recognises the previous case law that certain powers were non-justiciable. However, after this the judgment says that nevertheless the exceeding of the lawful limits of just such a power is determinable at law, which leaves an unresolved tension in the judgment’s reasoning.[122] For, logically, a power which is non-justiciable cannot be adjudicated, by the very nature of it being non-justiciable or else such a description would be meaningless. If the customary constitutional law, and the rule of recognition were developed by the common-law, the common-law could conceivably change to fit the reasoning of the common-law, because the fundamental law of the Constitution would then be a   creature of the common-law.[123] As it is, it is not. This point may be clarified by future authors using Paul Daly’s 2010 article on political questions, and Lord Legatt’s recent dissent in the Shvidler v. FCDA [2025] UKSC 30.

If the judgment refers to the exceeding of a lawful power, or the use of a lawful power in an unlawful manner (e.g., contra natural justice)[124] there still remains a key issue. For, indeed, with both characterisations of the judgment, it remains true that at heart of the customary Constitution exist judicially unquestionable legal realities such as the Sovereignty of Parliament (the rule of recognition), and the derivatively and analogously described ‘Sovereign’ powers contained in the prerogative.[125] These rules, we have posited, are authoritative by force of the customary consent of the whole body the senior legal officials. We will expand more on this when we discuss the Court’s principles.

It is insufficient to say that the “excluded categories” only apply when dealing with the lawful use of prerogative, and not the unlawful, because it is for the court to determine if an act is unlawful as the separation of powers requires.[126] For, first, the logical operation of Lord Roskill’s dictum on excluded categories, as observed, precludes their adjudication. To argue otherwise is to draw an insubstantial distinction which has the practical effect of defining “the problem of justiciability out of existence”.[127]  That this has an effect on one’s conception of the executive-parliamentary relationship is recognised,[128] and will be addressed later. Next, it need not follow that the lawful exercise of a power be necessarily a question for the Courts to decide, because the power may be accorded such a status by the customary Constitution as to be rather regulated politically than juridically.[129] Just because the safeguard may be insufficient, it need not follow the Court is constitutionally justified in asserting jurisdiction. Perhaps a crisis or situation may arise such that the political-constitutional justification of “necessity” be employed to that end,[130] and indeed prove beneficial, as in the Proclamations Case, but it is not legally valid. It constitutes, what Dicey would perhaps say is, an “artificial” and “unhistorical”, though beneficial, reasoning of doubtful legality.[131] As Endicott says, the Supreme Court used the “time-honoured tradition” of appealing to history to (at least attempt) a change in the basic customary constitution.[132] Of “necessity” Harcourt observed regarding Parliament, that the law in matters of Sovereignty postulates ”the general rule” with no exception.[133] “Cases of necessity, such as the Revolution”, says he, ”[…] are improper to be expressed” for fear of subversion of the normative rule.[134] Harcourt’s citing the Revolution implicitly supports the application of his argument to the Crown itself, and the subversion of its power to direct the common-good, considered later. We may postulate a weakened form of Harcourt’s observation for Derivatively Sovereign prerogatives.

At this point, it may be retorted that since all prerogative powers (indeed, all things besides the ultimate Sovereign power) have a legal limit, then it must follow that the Court decides where the lawful limit of these powers lies.[135] However, why should this be so? The Court cited several cases, which it seems do not support the justiciability of the prerogative. De Keyser’s[136] concerns statutory supremacy over prerogative.[137] The Case of Proclamations concerns the invalidity of non-parliamentary authorised ‘legislation’ and the Crown’s relation to the Courts.[138] Fire Brigades Union[139]concerns the effect of specific legislation.[140] Considering the above cited dicta of Lord Roskill on excluded categories, and our prior analysis, we may conclude that Cherry/Miller (II) could not be an analogous case to the ones cited by the Court, because of the nature of the power. Even if an analogy could be made,[141] there could not be a legitimate development becausewhat was attempted exceeded the customary constitutional bounds of the court’s position as presently constituted. Indeed, for the decision to become constitutionally legitimate, a development, discussed above, akin to that which allowed for GCHQ or of Proclamations would be required. So, a change in the customary consent of all the senior legal officials must occur.[142]

The then Attorney General, rejected the legitimacy of Cherry/Miller (II), [143]but no direct actions were taken to overturn or contradict the judgment. It would require a longer-term acceptance, or acquiescence to the judgment as constitutionally legitimate (which is related but distinct from democratic legitimacy) for acquiescence to be shown clearly.Indeed, the revival of the prerogative of dissolution[144] so soon after the judgment was a reaction by the other senior legal officials to bolster executive control of Parliament.[145] Even the judgment’s supporters, like Elliot, seem to recognise this.[146] In sum, there was not legal development which we can, at present characterise as constitutionally legitimate, becausewhat was attempted exceeded the constitutional bounds of the court. T customary recognition of the prerogative’s bounds had not shifted. It would require a development akin to that of GCHQ or of the Case of Proclamations, to legitimate it for the reasons of customary recognition explicated. This would also be the case in constitutional “necessity”[147] when there was, in political-constitutional fact, an abuse of prorogation, because the Court does not have a monopoly on constitutional change. To try, as Young advocates,[148] to protect other principles, for the same reason, would all the more lack legitimacy, since they are arguably less fundamental to the constitution’s operation.

Inasmuch as prorogation is a use of the Crown in Council acting on its prerogatives adjacent to the authority of the Crown as a part of the legislature, [149]  this prerogative comes under the same excluded category as dissolution.[150] This is because prorogation is analogous and closely related to dissolution.[151] It has also been used for manifestly political reasons to control the Houses of Parliament, notably in the passage of the Parliament Act 1949.[152] The fact that the customary Constitution allowed for it, shows it was permissible. Furthermore, it seems that the senior legal officials’ recognition of that rule has not changed, as discussed.

There are thus two faults in the Court’s reasoning regarding GCHQ. First, that the lawfulness of the exercise of prorogation is justiciable, because it makes a false distinction.[153] Indeed, as our argument implies, prorogation is such that no real formal rule prevents its exercise in any case because it is inherently a judgment of political prudence.[154]  Second, the failure, in Cherry/Miller (II), to distinguish mere “political hue” from overtly political judgements,[155] whereas the case law, as seen in Shergill,[156] makes a much clearer distinction. The Court’s faulty reasoning, thus, led to a constitutionally illegitimate result that is per incuriam. The second error flows from the first. For, prorogation is inherently an act of political prudence and so meets the Shergill criteria, since not only does it trespass on the executive’s proper province, but also is a highly subjective determination that differs from official to official making the determination.[157]

Regarding the Court’s attempt to decide the legal limits of the prerogative, two sentences in the judgement are telling. For the Court adds to a common-law justification a justification based on principles, themselves apparently rooted in the common-law.[158] First, the Court asserts that the constitution, though including convention, includes legal principles which are juridically enforceable.[159] Second, that in enforcing them, the Court is obliged to uphold and “make effective” (that is, make embodied in the practical State) presumably deeper “values and principles” which underpin the legal principles.[160]

Again, we see a failure to appreciate how, as explicated above, there may be principles and rules which, though legal, are non-judicable. It is, however, quite possibly accurate to say that the Courts do make effective deeper values when making rules of common law. These may be reflections of the mores and will of the polis,[161] or the personal value-political judgements of the judges, or actual misinterpretations of existing legal principles themselves grounded on values. Of the last, misinterpretations may arise from implicit value-political judgements, insofar as values are applied to political questions for which no legal standard previously existed, and which still remain of their nature highly subjective. For this reason, their Justices in Shergill sought to further clarify the lawon justiciability by stating that the Courts could not adjudge a matter of prerogative for which a legally manageable standard, that is one which could consistently be applied, could not be formulated.[162] It is thus posited that the judgement not only carried a mere “political hue,” in that it was ostensibly a legal judgement in a political context.[163] Instead, the nature of the judgement was such that it could not but be political, and as such the decision exceeded the jurisdiction the customary Constitution has accorded to the judiciary.

C) The Principles of the Court

The judgment’s overarching analytical error is what Dicey calls the error of “conventionalism” in the study of constitutional law.[164] By this is indicated a category error between what safeguards are ensured in law proper, and which are ensured by what Anson calls, and we may expand the sense of his words, a “practical [here, conventional] check” on a “capricious use of prerogative”.[165] As we shall show, this is done by the Court’s analysis of constitutional-legal principle. This error has two manifestations, first in the misconstruing of Parliamentary Sovereignty (the rule of recognition) and the practices and rules, legal and political, emanating from it. The second is a false inference drawn from the ministerial accountability as related to Parliamentary Sovereignty, to wit, of it being legal such that “responsible government” is a justiciable matter.[166]  

• Parliamentary Sovereignty

Elliot, and Craig argue that to conceptualise Parliamentary Sovereignty vis-à-vis the legal Constitution as only a formal rule, as they say Ekins does, unacceptably legitimises means through which the Lords and Commons can be neutered.[167] Thus, they posit that, legally, the Sovereign Parliament as the chief legal institution must be such that it cannot be frustrated by executive will but interpreted to be “meaningful and effective”.[168] Indeed, Craig essentially accuses those who see Sovereignty, in legal-constitutional analysis, as a formal rule, to be antiquarians defending a pre-Revolutionary Stuart conception of Parliament’s relation to the Crown’s prerogatives.[169]

However, it is more accurate to state that the account of Parliamentary Sovereignty adopted in Cherry/Miller (II) is “very surprising and novel”.[170] To establish this first let us consider the formal rule of Parliamentary Sovereignty. The Crown, in Parliament assembled,[171] has no legislative superior.[172] Thus, it may prescribe or repeal laws at will, with no one legally permitted to question the legal rectitude of any of its actions.[173] Thus, the legislative authority of the Crown-in-Parliament is “unlimited by law”,[174] which logically follows from it having no legislative superior, nor a prior constitutional arrangement clearly limiting its power. Here, the question of Parliament imposing formal or substantive restraints on itself, or the possibility of the Acts of Union[175] fundamentally limiting Parliament need not be addressed.[176]

What must be addressed is the use of prerogative apropos the Sovereign Parliament. Recall the discussion above of the Conditional Sovereignty of certain prerogative powers, a rule of the customary Constitution readily apparent in the witness of the case law to the legal custom of the constitution. Indeed, as stated above, the cases the Court cites to build its argument for the justiciability of prorogation’s relation to Parliament, in no wise support that proposition, or if they are analogically applicable, they are irrelevant because prorogation itself is excluded from such juridical analysis.[177] The Court, however, continues from this point to argue that if prorogation were legally unlimited, then the Sovereign Parliament’s legally unlimited legislative will could be fettered, and (the Court says) as such the rule of recognition (Parliamentary Sovereignty) prevents a rival unlimited power being exercised in relation to Parliament’s activity.[178]  

For the Court, practical-constitutional restraints (maintenance of a Standing Army, and raising money) are “scant assurance”.[179] This brusque dismissal is of practical-constitutional fundamentals controlling the executive capacity of the Crown, dating to the settlement following the Civil War and Restoration. To call their assurance “scant”[180] indicates a judicializing view of the constitution, which we shall touch upon later. Indeed, the very fact that practical assurances of so robust a nature exist is reason for the Court to seek not to intervene, than to seek to superadd to the Constitution judicial rules regarding prorogation.[181] We see that here the Court does not distinguish between the formal rule, and the practical safeguards ensuring that the formal rule does not become ineffectual. Indeed, there seems here to be an interpretation of the Sovereignty rule as implying maximisation of legislative opportunities[182] whereas it may be better interpreted (as is argued below) in light of the legal pre-eminence of the Crown.

Furthermore, the statutory provisions referenced by the Court[183] may be interpreted as a recognition of prorogation’s drastic effects, and seek to control them in certain circumstances. Thus, they may be viewed as meaning prorogation, when not limited by Parliament, has no other legal remedy as to its effects. But the Court prefers to maintain its view as to the logical incompatibility of unlimited prorogation powers and an unlimited Parliament. Thus, recognising its reality qua prerogative, it seeks to render it “compatible” with Parliamentary Sovereignty qua secondary constitutional rule, prerogative being below Sovereignty simpliciter.[184] This would be accurate if the Constitution were an analytically constructed instrument based on explicit principles of modern liberal democratic theory. It seems here their Justices political-theoretical framework may thus have accidentally intruded upon their analysis of customary legal-constitutional fact. Then, again, the distinctions between such frameworks and the highest reaches of the common law constitution are murky.

In fact, as shown above, the prorogation prerogative, as part of the Crown-in-Council’s participation in those powers of that Crown that are Secondarily Sovereign,[185] has been used to control the Crown-in-Parliament. To establish this, consider first the Crown’s Absolutely Sovereign prerogatives. Craig subtly errs in seeing the Crown as external to Parliament when signifying its external will to the democratic legislature when done during prorogation proceedings.[186] Rather, the Crown qua constituent part of Parliament exercises the Assent prerogative.[187] Thus the Crown, viewed as one thing, possesses the fusion of the (ultimate) legislative and executive powers in a single entity. For, without the prerogative of assent no legislative attempt of the junior parts of Parliament, the three estates of the realm, is law. From a legal-constitutional perspective the conventional limit on assent need not be directly addressed, precisely because it is not legal. Conventions have other purposes vis-à-vis the legal constitution, as we shall explore.

Now, we directly address Craig’s error in failing to make an important distinction, transferring the theory behind his discussion of the 1689 Billhere, since it is relevant.[188] Concomitant to (so in the GCHQ excluded categories) the supreme legislative-executive control of Parliament in assent, are other executive prerogatives controlling Parliament. These include dissolution and prorogation, which both have been used to enforce the Crown’s conceptions of the common-good or partisan expedience (both expressed by its Ministers) when the other three estates of Parliament do not cooperate. The entire past practice of the British Constitution from the Revolution until Cherry/Miller (II), including, Major’s controversial prorogation following the cash-for-questions scandal supports this observation.[189] The distinction between Absolute, Adjacent, and Ordinary prerogatives should logically escape Craig’s criticism of a legislative act (and we may expand his criticism to include Adjacent Prerogative) being used to cloak an illegitimate use of a justiciable one.[190] For, at law they, we propose, ought to, should a case arise, be distinguished as legally distinct acts only linked by temporal coincidence. From what has been said, it follows that the Crown as executive-legislative has a real role in controlling Parliament. But if this is true, the Court’s limited view of prorogation’s legitimate uses at paragraph 45 must be mistaken, from a historically informed doctrinal perspective.

Following the evidence of practical-legal custom in the British Constitution, helpfully summarised by Steven Spadijer,[191] we may theorise that the Constitution is ordered to the final aim of the common-good’s pursuit.[192] This is seen ultimately in the Acts of the Crown-in-Parliament.[193] Therein, the estates of the realm, united to their head in the Crown legislate as if in a single body, “representing the estate of all the people in the realm”.[194] The state, the unique rank, that is the Crown exercises a preeminent power in the unique legislature-executive control prerogatives outlined above, being the Parliament‘s “caput, principium et finis” (‘head, commencer and dissolver’).[195] It would thus seem ultimately responsible for managing the other estates of Parliament in the ultimate pursuit of the common-good through the Conditionally Sovereign prerogative, exercised primarily through its Ministers in Council. This leaves room for misuse, which is unconstitutional though not necessarily illegal, and for which robust political controls can be exerted.[196] Accusations, like those of Craig, against those who thus posit the seniority of the Crown’s position in Parliament as anachronistically adopting a Stuart Constitution are false.[197] On the contrary, positing the necessity of legal controls because political controls are “scant”[198] errs by anachronism to a time when the legal-constitutional controls on prerogative were necessary, for want of sufficient political control.

• Executive accountability
  • Executive Accountability as related to prerogative, and the junior Parliamentary estates

The legal-constitutional powers are politically limited. In Britain, as Paley noted, are “formidable prerogatives dwindled into mere ceremonies”.[199] But these prerogatives may still be legally exercised, as Lord Balfour argued.[200] Lord Sumption notes, though supporting the judgment, that the Executive sought to use these prerogatives contrary to convention.[201] Thus, it follows, the Supreme Court acted to protect the Constitutional settlement regarding the legally junior estates of Parliament’s ability to exercise their legislative and supervisory powers. Assuming this interpretation to be true, it does not follow that the Court’s attempt to redefine the Crown’s executive powers in relation to the united operation of the parts of parliament was legitimate. As we have said, this would require a shift in the customary constitutional-legal consensus to be legitimate, which is not at all guaranteed. This justification of “necessity” (as Endicott calls it)[202] may be morally right in certain circumstances, but their efficacy with the opposition of the other senior legal officials is questionable. From the foregoing analysis, we see the Court’s attempt to crystallise certain consequences flowing from the practice of “responsible government”. But the principle itself is political-constitutional, that is, concerning the Executive’s discretionary pursuit of the common-good, not merely party politics, which is ‘political’ in a derivative sense,[203] the shakiness of the Court’s crystallising attempt must be addressed. At this point having slowly shifted into considerations of executive accountability which is closely related to the Court’s first principle of Parliamentary Sovereignty. We have also entered the conflux where the rivers of higher-order political and legal considerations meet, and careful distinctions must be made to avoid error.

• Inaccuracies in the Court’s conceptualisation of Executive Accountability considered as a principle

In considering if the Prime Minister’s advice was lawful, the Court sought to examine the foundations of the Constitution.[204] It then gave a particular interpretation of the role of Parliament as supervisory of the executive, especially in the House of Commons which possesses the greatest democratic legitimacy, being the democratically elected estate of Parliament.[205] The linguistic emphases in paragraph 55 support such an interpretation, with the House of Lords role seemingly inserted as an afterthought.[206] McHarg is correct, on this paragraph, to note that in giving this particular interpretation the Court fails to acknowledge the “important tensions” which emerge from the political-constitutional fusion of executive and legislature,[207] a reality whose legal-constitutional grounding in the Crown we have analysed above. Indeed, this is a creative tension. Endicott is correct to state that the Court’s view of the House of Commons is incomplete for the supervision is conducted “in the House of Commons” (emphasis in original).[208] There, political rivals scrutinise their opponents, seeking to replace them.[209]Thus, parliamentary accountability is energised by partisan politics.[210]

For the Court to adjudicate on the appropriateness of prorogation on this standard is to not merely tread the blurred line between political-constitutional and legal-constitutional considerations, but to trip into a political judgment. The Court did not explicitly have to make this judgment in the instant case, but that a “reasonable justification” for affecting this particular principle being required,[211] taints the whole standard. For what is “reasonable” cannot but be informed by partisan considerations when the conventional principle itself has an intrinsically partisan element. Indeed, as McHarg notes, until Cherry/Miller (II), Executive Accountability as a part of responsible government was rather a grounds for judicial restraint over action.[212]

A judicially “manageable standard,” uniformly applicable, as Shergill postulates,[213] could not be formulated on this ground. For, as our prior analysis indicates, the legal-constitutional basis for the executive-legislative fusion, in the Crown, contains in itself the ability to control the junior parts of Parliament (based on common-good considerations) through the Crown’s derivatively sovereign powers. The Court is not fitted to judge the validity of common-good policy considerations, as Lord Diplock has said.[214] Parliament may be disabled to make such judgments, where the Court’s may seek to shift the customary constitutional agreement, but if here there was such a case is dubious.[215] Indeed, this would not be a legal act per se, but only have acquired legality by customary change, as we have observed above about The Case of Proclamations.  

• The notion of “responsible government”[216]

The Court invokes “responsible government” thrice in its judgment,[217] especially in reference to the Executive’s accountability as essential to democratic government without which it would be antithetical to democracy.[218]  This is probably the influence of the Lord Advocate’s evidence throughout the English and Scotch proceedings.[219] It is essential the Court’s conceptualisation of the legal relationship between the Crown and the junior parts of Parliament, and its role in Parliament.[220]  

Paragraph 48 indicates that without responsible government, there would be unaccountable government, which is antithetical to “the democratic model”.[221] This seems influenced by paragraph 99 of the Inner House’s judgment which makes a similar but more developed point,[222] which, it is submitted, illuminates the Supreme Court’s judgment. There, Lord Drummond Young argues that Executive Accountability exists to prevent “arbitrary exercise or abuse of executive power”.[223]Preventing “arbitrary exercise or abuse” being significant historically (but also therefore legally) in conjunction to Parliamentary Sovereignty.[224]

In relation to the Supreme Court judgment, one must consider our prior discussion on the legal status of executive accountability. From it, it follows that it is a non-judicially enforceable principle which nonetheless, when the Constitution is considered generally (politically and legally), complements the formal legal Constitutional rules. True, as the CSIH implies,[225] Parliamentary Sovereignty, considered as the ability of the legally junior parts of Parliament to exercise their will in conjunction with the Crown, would be a “dead letter” if an unsupervised Executive could entirely prevent the formal rule’s operation.[226] Thus, ‘executive accountability to Parliament’ is synonymous with ‘responsible government Parliamentarily supervised’, and it emerges as concomitant to Parliamentary Sovereignty. However, it does not follow, as our prior discussion argues, that it is judicially enforceable. Thus, the Supreme Court’s view is, at root, a conventional, not a legal one because responsible government itself is conventional,[227] being determined by changing and disputed notions of right governance. At best, on this view, the judgment can be considered a legalisation of conventional rules, even for some supporters of the judgment.[228] Whether or not that is a legitimate use of the judicial power in the United Kingdom exceeds the scope of our query, but it certainly was not a lawful exercise of the judicial power at the time the judgment was given.

• The Relative Constitutional Position of the Court Considered in Relation to the Principles: A further assessment of the constitutionally “proper function”[229] of the Court, vis-à-vis the principles of the Court

Furthermore, it is in principle, and thus in fact, wrong for the Court to seek to develop legal principles to limit abuse of extraordinary uses of prerogative powers when there is not a truly unprecedented case. Sir Matthew Hale said that the law provides normative rules for ordinary circumstances where one may not legitimately deviate from the rule, and that framing the ordinary law on extraordinary exceptions is (in his unhappily intemperate tone) “madness”.[230] Thus, McHarg asks if then analogous uses of prorogation for political ends (notably for us, that of John Major discussed above) would be legally illegitimate.[231]  Clearly, therefore, there must be a rupture between this case and the customary Constitution and common-law preceding it, if it would seem to forbid actions which were constitutionally conscionable before. Thus, because of customary constitutional rupture, it is insufficient to argue that the firm distinction drawn in this thesis between legal-constitutional matters and political-constitutional matter would be “sloppy”.[232] For, the Court itself misconceives its proper role in enunciating the legal-constitutional implications of political-constitutionally enforced principles.

Here we see, as Loughlin argues,[233] a tendency in the Court of seeing itself as an interpreter of the Constitution such that it is its guardian As its ostensible guardian, it becomes also its “master” inasmuch as it holds the monopoly on determining its true meaning.[234] That is how Dicey describes the operation of the United States Supreme Court in relation to America’s written constitutional instrument.[235] Truly, presenting itself as a “guardian of constitutional principle” (as Elliott lauds it),[236] the Court over-extends its constitutional role. For, the British Constitution in legal custom, providing itself a place for political custom, has already provided means (whether sufficient or not) of securing Parliament and the Crown’s relative positions, as discussed. Contra Daly, the ability of certain principles as political not to be adjudicated does not flow from arbitrary judicial line-drawing,[237] but from the inferior constitutional position of the judiciary in the distinction (not complete separation) of powers customarily excluding its interference with the interaction of principles with certain prerogatives interaction with Parliament.

Indeed, for the Court to be involved in managing the use of Adjacent Prerogatives would inherently involve it in matters of a partisan nature. The literature on this, particularly Maurits Helmich’s interesting article on Cherry/Miller (II) and political adjudication, seems to indicate this.[238] To maintain the soundness or preferability of a certain relationship between the Crown and the estates of Parliament, and its Ministers accountability thereto may indeed entail higher order political-constitutional (“ideological”) commitments.[239] Here there is indeed a Case where such commitments are clear from the particular enunciation of the principles, as our analysis thus far should show. However, not only may this be an (perhaps inadvertent) attempt to change the customary legal-constitutional consensus, but also be taking a side in a dispute about the incompletely theorised constitution, where such definite acts may lead to constitutional friction.[240] The prior analysis, has, at any rate, argued that at the time of the Case, the Case was unorthodox within the customary constitutional enabling context.[241] Therefore, it follows that it was wrongly decided.

• 3. Conclusion

The first set of our considerations address justiciability. To begin, the British Constitution (indeed, to an extent, all constitutions) is based on the customary consent of the senior legal officials.[242] This has restricted the judiciary’s authority from enquiring into matters where the Executive (the Crown exercising its prerogatives) is “best judge“.[243] These prerogatives derivatively partake of Sovereignty, and so we define as Prerogatives Adjacent to Sovereignty.[244] The case-law, particularly in GCHQ, indicates that prorogation is such a power, and non-judicable.[245] The customary consent has been judicially refined by the Court in Shergill[246] to note there must be a judicially manageable standard to govern a prerogative, if the Court is to consider even adjudicating a prerogative. Considering the prudential political considerations that may be used to politically control Parliament by prorogation, which was until Cherry/Miller (II) considered legally legitimate by virtually all the senior legal officials,[247]  such a standard cannot be formulated. This is apart from considering the general constitutional legitimacy (or not) of the act itself.

After justiciability, flowed the second set of considerations, based on the proposed standard to apparently judge a prorogations legality. This standard is formulated on the Court’s principles of Parliamentary Sovereignty and Executive Accountability.[248] It is submitted that here the error of “conventionalism” is committed.[249]

On Parliamentary Sovereignty, the Court deliberately trespasses on the role of practical safeguards to Parliament’s ability to legislate, not merely in a formal rule, but in political reality, by deeming the robust safeguards “scant”.[250] Further, even if the safeguards were awanting the standard would not be legitimate unless all the senior legal officials gave their consent to the Court’s novel understanding of the rule.[251] The Crown’s power to control the Parliament is derived from its position as the legally superior part of Parliament,[252] itself charged with making common-good judgments,[253] which the Court cannot pry into.[254] Thus, the limitation of prorogation in law is not “concomitant” to the formal rule of Parliamentary Sovereignty.[255]

The other principle, that of Executive Accountability to the junior parts of Parliament,[256] saw the Court more deeply enmeshed in the conventionalist error. That idea has been, before Cherry/Miller (II) a reason for the restraint of the judiciary, not its action,[257] indicating its non-competence to adjudge the matter. Indeed, the entire operation of Executive Accountability to Parliament derives from the Executive’s position within Parliament, being driven by partisan politics.[258] It is submitted that from this it flows that adjudicating Executive Accountability is almost impossible to do without the taint of prudential political considerations, for which reason no judicially manageable (uniformly applicable) standard can be postulated.[259] Indeed, the Court weighing “responsible government”[260] indicates the conventional nature of its principles insofar as this requires an assessment of legal issues based on prudential judgments on right governance.[261]

Consider again the Court’s constitutional position regarding the principles, having before examined it under the aspect of justiciability. It had no competence to adjudicate prorogation. Its standard was misconceived and itself illustrative of the exercise prorogation prerogative having to it a prudential political element[262] beyond the Court’s customary constitutional authority. Therefore, Court had no competence to postulate an expansive conventionalist standard of Parliamentary Sovereignty, nor notions of Executive Accountability. Indeed, it overstated its powers relative to the other senior legal officials in the Constitution vis-à-vis constitutional principles.  Only a change in the customary consent of the senior legal officials (the Constitution’s “enabling context”) can legally legitimate Cherry/Miller (II).[263]

Bibliography

Statutes

Bill of Rights 1688, art. 9

Union with Scotland Act 1706

Union with England Act 1707

Parliament Act 1949

Dissolution and Calling of Parliament Act 2022

Cases

Case of Proclamations (1611) 12 Co Rep 74, 76

Re De Keyser’s Royal Hotel [1920] AC 508, 539 (Lord Atkinson)

Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75, 100, 101 (Lord Reid)

R v Inland Revenue and Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982]AC 617, 644 (Lord Diplock)

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374, 387, 397, 398, 407, 418

M v Home Office [1994] 1 AC 377, 395 (Lord Templeman)

R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others [1995] 2 AC 513, 567-568

R (ex parte Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA 1598 (Civ) [85] (Lord Phillips MR)

Jackson v Her Majesty’s Attorney General [2005] UKHL 56 [104], [107] (Lord Hope)

R (ex parte Barclay and another) v Lord Chancellor and Secretary of State for Justice and others (No 2) [2014] UKSC 54 [48]

Shergill v Khaira [2014] UKSC 33 [40]

R (ex parte Miller) v Secretary for State for Exiting the European Union [2017] UKSC 5 [44]

Cherry and Others v Lord Advocate for Scotland [2019] CSOH 70, [5]

 Cherry and Others v Lord Advocate for Scotland [2019] CSIH 49 [35], [38], [76], [99]

R (On the Application of Miller) v The Prime Minister [2019] EWHC 2381 (QB) [33], [34], [40]-[50], [42], [47], [55]

R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41 [4], [31]-[32]. [33], [34], [35]-[37], [38], [39]. [40]-[41], [42], [43], [44], [45], [46], [48], [50]-[51], [52], [55], [57], [67]-[68], [69]

Patriotic Front-ZAPU v Minister of Justice 1986 (1) S.A. 532 in Hadfield, Brigid, ’Judicial Review and the Prerogative Powers of the Crown’, in The Nature of the Crown: A Legal and Political Analysis, Sunkin, Maurice, and Payne, Sebastian, (eds) (OUP 1999) 196-232, 229

Journal Articles

Bogdanor, Vernon, ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’ (2012) 32 Oxford Journal of Legal Studies 1, 180

Craig, Paul, ‘The Supreme Court, Prorogation and Constitutional Principle’ [2020] PL 248, 250-251, 253-254, 256- 258, 264, 265

 Craig, Paul, ‘Response to Loughlin’s note on Miller; Cherry’ [2020] PL 282, 282-283

Daly, Paul, ‘A Critical Analysis of the Case of Prorogations’, [2021] Canadian Journal of Comparative and Contemporary Law (forthcoming) 11, 18 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3787470&gt; accessed 7 March 2024

Elliott, Mark, ‘Constitutional Adjudication and Constitutional Politics in the United Kingdom: The Miller II Case in Legal and Political Context’ [2020] EuConst 625, 626, 631-632, 634, 642, 643-645

Endicott, Timothy, ‘Making Constitutional Principles into Laws’ [2020] LQR 175, 177, 179-180, 181

Helmich, Maurits, ‘The UK Supreme Court’s Miller II: Keeping the Court out of politics way?’ [2022] ICON 2008, 2010, 2031

 Loughlin, Martin, ‘A note on Craig on Miller; Cherry’ [2020] PL 278

McHarg, Aileen, ‘The Supreme Court’s Prorogation Judgment: Guardian of the Constitution or Architect of the Constitution?’ [2020] 24 ELR 88, 91, 94-95

Sunstein, Cass R, ‘Incompletely Theorized Agreements’ [1995] HLR 1733, 1739

Sunstein, Cass R, ‘Incompletely Theorized Agreements in Constitutional Law’ [2007] Social Research 1, 13

Ullmann, Walter, ‘This Realm of England is an Empire’ [1979] 30 JEH 175, 201n110

Books and Publications

Anson, William R, The Law and Custom of the Constitution, (vol 1, 3rd edn, Clarendon Press 1907) 47-48

Anson, William R, The Law and Custom of the Constitution (vol 2, 3rd edn, Clarendon Press 1907) 2, 28, 259

Aristotle, Politics (Barker, Ernst, and Stanley, R F, trs, OUP 1998) 7

Blackstone, William, Commentaries on the Law of England (Vol 1, Clarendon Press 1765) 149

Bingham, Tom, The Rule of Law (2011, Penguin Books) 160, 162, 163

Dicey, A V, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund 1982), cxxix, cxxxi, cxxxvi, 3, 20-21, 95, 100, 281

Finnis, John, The unconstitutionality of the Supreme Court’s prorogation judgment (Policy Exchange 2019) 5, 7-10, 14

Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (OUP 2001) 1, 9, 71, 73, 78-109, 159-173, 180, 165-173, 234-235, 245-246, 235-257, 253-259, 236-279

Gordon, Michael, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Bloomsbury 2017) vii

Gratian, Decretum 1.4 in Porter, Jean, Ministers of the Law: A Natural Law Theory of Legal Authority (Wm.B. Eerdmans Publishing Co. 2010) 250

Hale, Matthew, ‘Reflections by the Lord Chief Justice Hale on Mr Hobbes his Dialogue of the Law’ in Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (OUP 2001) 269

Hart, H L A, The Concept of Law (1st edn, Clarendon Press 1961)

Hearn, William Edward, The Government of England: its Structure, and its Development (Longmans, Green, Reader, and Dyer 1867) 68-70

Hooker, Richard, Of the Laws of Ecclesiastical Polity (1888) in Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (OUP 2001) 73

Le Sueur, Andrew; Sunkin, Maurice; and Murkens, Jo Eric Khushal, Public Law: Text, Cases, and Materials (5th edn, OUP 2023) 114-115

Loughlin, Martin, The Case of Prorogation: The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court’ (Policy Exchange 2019) 6, 8, 15, 16

Low, Sidney, The Governance of England (1st edn, T. Fisher Unwin 1906) 258

Micklem, Nathaniel, Law and the Laws, being the Marginal Comments of a Theologian (Sweet and Maxwell 1952) 1-7

Paley, William, The Principles of Moral Philosophy (Liberty Fund 2002) 329

Porter, Jean, Ministers of the Law: A Natural Law Theory of Legal Authority (Wm.B. Eerdmans Publishing Co. 2010) 244-257, 259, 265-272

Simon, Yves, A General Theory of Authority, 30-33, 47-67

St German, Christopher, An Answer to a Letter (1535) in Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (OUP 2001) 71

Webley, Lisa, and Samuels, Harriet, Complete Public Law: Texts, Cases, and Materials (OUP 2021) 146

Will, George F, Statecraft as Soulcraft: What Government Does (Simon and Schuster 1983) 17, 19, 24

Contributions to Edited Books

Elliot, Mark, ‘Parliamentary Sovereignty in a Changing Constitutional Landscape’ in Jowell, Jeffrey, and O’Cinneide, Colm, (eds), The Changing Constitution (9th edn, OUP 2019) 29

Garrigou-Lagrange OP, Reginald, ‘The Subordination of the State to the Perfection of the Human Person According to St Thomas’ in Mineard, Matthew K (ed), Philosophising in Faith: Essays on the Beginning and End of Wisdom (Cluny Media, 2019) 183-203

Goldsworthy, Jeffrey, ‘Parliamentary Sovereignty and Constitutional Change in the United Kingdom’, in Rawlings, Richard; Leyland, Peter; Young, Alison L, (eds), Sovereignty and the Law: Domestic, European, and International Perspectives (OUP 2013) 55

Hadfield, Brigid, ‘Judicial Review and the Prerogative Powers of the Crown’, in The Nature of the Crown: A Legal and Political Analysis, Sunkin, Maurice, and Payne, Sebastian, (eds) (OUP 1999) 196-232, 197, 229, 231

Hope, David, ‘Is the Rule of Law now the Sovereign Principle?’ in Rawlings, Richard; Leyland, Peter; Young, Alison L, (eds), Sovereignty and the Law: Domestic, European, and International Perspectives (OUP 2013) 95-96

Payne, Sebastian, ‘The Royal Prerogative’ in The Nature of the Crown: A Legal and Political Analysis, Sunkin, Maurice, and Payne, Sebastian, (eds) (OUP 1999) 77, 86, 95-96

Command Papers

Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (Cm 200304, 2004) para. 7

Parliamentary Evidence

Ekins, Richard, ‘The Supreme Court’s prorogation judgment and its constitutional implications’ (HC PIS 0001) [9], [12], [15]

Ekins, Richard, ‘The Supreme Court’s prorogation judgment and its constitutional consequences’ (HC FTP 0007) [17], [32]

Ekins, Richard, in ‘Oral evidence: Prorogation and implications of the Supreme Court judgment’ (HC 2666) 15

Spadijer, Steven, ‘Miller No 2: Orthodoxy as Heresy and Heresy as Orthodoxy’ (HC PIS 0002)

Parliamentary Research Briefings Publications

Torrence, David, ‘Royal Assent’ (CBP 9466, 23 October 2023) 12

Scott, Edward, ‘Dissolution and Calling of Parliament Bill HL Bill 51 of 2021–22’, (Lords Library Briefing, 3 November 2021) 3

Speeches

Braverman, Sue-Ellen, ‘Judicial Review Trends and Forecasts 2021: Accountability and the Constitution’ (UK Government, 19 October 2021) <https://www.gov.uk/government/speeches/judicial-review-trends-and-forecasts-2021-accountability-and-the-constitution&gt; accessed 18 January 2024

Newspaper and Magazine Articles

Sumption, Jonathan, ‘Supreme Court ruling is the natural result of Boris Johnson’s constitutional vandalism’, The Times (24 Sept 2019)

Poole, Thomas, ‘Understanding what makes ”Miller and Cherry” the most significant judicial statement on the constitution in over 200 years’, (Prospect Magazine, 25 Sept 2019) <https://www.prospectmagazine.co.uk/politics/39279/understanding-what-makes-miller-cherry-the-most-significant-judicial-statement-on-the-constitution-in-over-200-years&gt; accessed 6 March 2024

Blog Posts

Elliott, Mark, ‘Prorogation and justiciability: Some thoughts ahead of the Miller II case in the Supreme Court’ (Public Law for Everyone, 12Sept 2019) <https://publiclawforeveryone.com/2019/09/12/prorogation-and-justiciability-some-thoughts-ahead-of-the-cherry-miller-no-2-case-in-the-supreme-court/&gt; accessed 6 March 2024

Elliott, Mark, ‘A new approach to constitutional adjudication? Miller II in the Supreme Court’ (Public Law for Everyone, 24 Sept 2019) <https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/&gt; accessed 6 March 2024

Twomey, Anne, ‘Article 9 of the Bill of Rights 1688 and Its Application to Prorogation’ (UK Constitutional Law Association, 4 Oct 2019) <https://ukconstitutionallaw.org/2019/10/04/anne-twomey-article-9-of-the-bill-of-rights-1688-and-its-application-to-prorogation/&gt; accessed 7 March 2024

Young, Alison L, ‘Prorogation, Politics and the Principle of Legality’ (UK Constitutional Law Association, 13 Sept 2019) <https://ukconstitutionallaw.org/2019/09/13/alison-young-prorogation-politics-and-the-principle-of-legality/&gt; accessed 6 March 2024

Encyclopedia

James Fowkes, ‘Prorogation of the Legislative Body’, Max Planck Encyclopaedia of Constitutional Law in Steven Spadijer, ‘Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy’ (HC PIS0002)

---

Endnotes

[1] R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41

[2] ibid [69]

[3] Thomas Poole, ‘Understanding what makes ”Miller and Cherry” the most significant judicial statement on the constitution in over 200 years’, (Prospect Magazine, 25 Sept 2019) <https://www.prospectmagazine.co.uk/politics/39279/understanding-what-makes-miller-cherry-the-most-significant-judicial-statement-on-the-constitution-in-over-200-years&gt; accessed 6 March 2024

[4] Cherry/Miller (II) (n1) [34]

[5] Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Wm.B. Eerdmans Publishing Co. 2010) 244

[6]Cf Cherry/Miller (II) (n1) [42]; Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (OUP 2001) 1; Tom Bingham, The Rule of Law (Penguin Books 2011) 160; Mark Elliot, ‘Parliamentary Sovereignty in a Changing Constitutional Landscape’ in Sir Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, OUP 2019) 29.

[7] M v Home Office [1994] 1 AC 377, 395 (Lord Templeman)

[8]  Jeffrey Goldsworthy (n6) 253-259; Cf Jean Porter(n5) 244-257

[9] Jackson v Her Majesty’s Attorney General [2005] UKHL 56 [104], [107] (Hope LJ); David Hope, ‘Is the Rule of Law now the Sovereign Principle?’ in Richard Rawlings, Peter Leyland and Alison L Young (eds), Sovereignty and the Law: Domestic, European, and International Perspectives (OUP 2013) 95

[10] Cf Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75, 100

[11] Cherry/Miller (II) (n1) [40]-[41]

[12] Ibid [42], [46], [50].

[13] Thomas Poole (n2)

[14] Jean Porter (n5) 244.

[15] Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418 (Roskill LJ); Cherry/Miller (II) (n2) [35]

[16] Shergill v Khaira [2014] UKSC 33 [40]

[17] R (On the Application of Miller) v The Prime Minister [2019] EWHC 2381 (QB) [42]

[18] Re De Keyser’s Royal Hotel [1920] AC 508, 539 (Atkinson LJ); cf William Blackstone, Commentaries on the Law of England (Vol 1, Clarendon Press 1765) 149; Christopher St German, An Answer to a Letter (1535) in Jeffrey Goldsworthy (n1) 71

[19] Burmah Oil Co (Burmah Trading) Ltd (n10) 100 (Reid LJ)

[20] ibid

[21] Tom Bingham, The Rule of Law (n6) 163; Cf Vernon Bogdanor, ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’ [2012] 32 Oxford Journal of Legal Studies 1, 180

[22] Jeffrey Goldsworthy(n6)

[23] Jean Porter (n5) 244-257, 265-272.

[24] Ibid 255-257; Jeffrey Goldsworthy(n6) 235-257; Cf H.L.A. Hart, The Concept of Law (1st edn, Clarendon Press 1961)

[25] Maurits Helmich, ‘The UK Supreme Court’s Miller II: Keeping the Court out of politics way?’ [2022] ICON 2008, 2031

[26] Cf Nathaniel Micklem, Law and the Laws, being the Marginal Comments of a Theologian (Sweet and Maxwell 1952) 1-7

[27] Cf Maurits Helmich (n25) 2031

[28] Paul Craig, ‘The Supreme Court, Prorogation and Constitutional Principle’ [2020] PL 248; Paul Craig, ’Response to Loughlin’s note on Miller; Cherry’ [2020] PL 282

[29] Cf Mark Elliott, ‘A new approach to constitutional adjudication? Miller II in the Supreme Court’ (Public Law for Everyone, 24 Sept 2019) <https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/&gt; accessed 6 March 2024; Mark Elliott, ‘Prorogation and justiciability: Some thoughts ahead of the Miller II case in the Supreme Court‘ (Public Law for Everyone, 12Sept 2019) <https://publiclawforeveryone.com/2019/09/12/prorogation-and-justiciability-some-thoughts-ahead-of-the-cherry-miller-no-2-case-in-the-supreme-court/&gt; accessed 6 March 2024

[30] Cf Mark Elliott ’Constitutional Adjudication and Constitutional Politics in the United Kingdom: The Miller II Case in Legal and Political Context’ [2020] EuConst 625, 642

[31] Alison L Young, ‘Prorogation, Politics and the Principle of Legality’ (UK Constitutional Law Association, 13 Sept 2019) <https://ukconstitutionallaw.org/2019/09/13/alison-young-prorogation-politics-and-the-principle-of-legality/&gt; accessed 6 March 2024

[32] ibid

[33] Jonathan Sumption, ‘Supreme Court ruling is the natural result of Boris Johnson’s constitutional vandalism’, The Times (24 Sept 2019)

[34] Paul Daly, ‘A Critical Analysis of the Case of Prorogations’, [2021] Canadian Journal of Comparative and Contemporary Law (forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3787470&gt; accessed 7 March 2024

[35] Maurits Helmich (n25)

[36] John Finnis, The unconstitutionality of the Supreme Court’s prorogation judgment (Policy Exchange 2019)

[37] Richard Ekins, ’The Supreme Court’s prorogation judgment and its constitutional implications’ (HC PIS 0001); Richard Ekins, ’Written evidence submitted by Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford’ (HC FTP 0007)

[38] Steven Spadijer, ’Miller No 2: Orthodoxy as Heresy and Heresy as Orthodoxy’ (HC PIS 0002)

[39] Martin Loughlin, The Case of Prorogation: The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court (Policy Exchange 2019); Martin Loughlin, ’A note on Craig on Miller; Cherry’ [2020] PL 278

[40] Timothy Endicott, ’Making Constitutional Principles into Laws’ [2020] LQR 175

[41] Richard Ekins, ’The Supreme Court’s prorogation judgment and its constitutional implications’ (n36)

[42] John Finnis (n36) 5, 7-10

[43] Steven Spadijer (n38)

[44] Paul Craig, ‘The Supreme Court, Prorogation and Constitutional Principle‘ (n28) 265

[45] Loughlin The Case of Prorogation (n39) 6, 15; Endicott (n40) 177, 179-180

[46] Endicott, ibid 181

[47] Cf Cherry/Miller (II) (n1) [4], [35]-[37], [42]; GCHQ (n15) 418.

[48] Cf A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund 1982) 100

[49] Cf Cherry/Miller (II) (n1) [34]

[50] Cf Jeffrey Goldsworthy (n6) 9

[51] Cherry/Miller (II) (n1) [48], [52]. [57]

[52] Cherry/Miller (II) (n1) [31]-[32], [34]

[53] ibid [33]

[54] ibid [34]

[55] ibid [38], [41], [46], [50]-[51]

[56] GCHQ (n15) 298; A.V. Dicey (n48) 20-21, 281; William R Anson, The Law and Custom of the Constitution (vol 2, 3rd edn, Clarendon Press 1907) 2

[57] Sidney Low, The Governance of England (1st edn, T. Fisher Unwin 1906) 258

[58] A.V. Dicey (n48) 21

[59] William R Anson (n56) 259

[60] GCHQ (n15) 397; M v Home Office (n7) 395; Cf Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 422, 16 March 2004) 6 [7]

[61] Case of Proclamations (1611) 12 Co Rep 74, 76; cf GCHQ (n8) 407

[62] GCHQ (n15) 407

[63] ibid 418

[64] Cherry/Miller (II) (n1) [35]-[36]

[65] Cherry/Miller (II) (n1) [32], [41]

[66] Miller (II) (n17) [34]

[67] GCHQ (n15) 387; cf Aileen McHarg, ’The Supreme Court’s Prorogation Judgment: Guardian of the Constitution or Architect of the Constitution?’ [2020] 24 ELR 88, 91

[68] Miller (II) (n17) [40]-[50]

[69] ibid [47]; Shergill (n16)[40]; Cf R (ex parte Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA 1598 (Civ) [85] (Phillips MR)

[70] GCHQ (n15) 418; cf Cherry/Miller (II) (n1) [35]

[71] Patriotic Front-ZAPU v Minister of Justice 1986 (1) S.A. 532 in Brigid Hadfield, ’Judicial Review and the Prerogative Powers of the Crown’, in The Nature of the Crown: A Legal and Political Analysis, Maurice Sunkin and Sebastian Payne (eds) (OUP 1999) 196-232, 229

[72] ibid

[73] Cherry/Miller (II) (n1) [31]

[74] Shergill (n16) [40]; cf. Cherry/Miller (II) (n1) [31]

[75] Cherry/Miller (II) (n1) [41]-[42], [46]; Cf John Finnis (n36) 7-9, 14-17

[76] Martin Loughlin, The Case of Prorogation (n38) 16

[77] Cf Cherry/Miller (II) (n1) [34]

[78] Cherry/Miller (n1) [67]-[68]

[79] Cf John Finnis (n36) 7-9

[80] Bill of Rights 1688, art. 9

[81] R (ex parte Barclay and anor) v Lord Chancellor and Secretary of State for Justice and ors (No 2) [2014] UKSC 54 [48]

[82] Martin Loughlin, ’A note on Craig on Miller; Cherry’ (n38) 278

[83] R (Barclay) (No 2) (n81) [48]; cf Re De Keyser’s Royal Hotel (n18) 539 (Atkinson LJ); cf William Blackstone (n18) 149

[84] Cf Paul Craig, ’Response to Loughlin’s note on Miller; Cherry’ (n28) 282-283; Anne Twomey, ’Article 9 of the Bill of Rights 1688 and Its Application to Prorogation’ (UK Constitutional Law Association, 4 Oct 2019) <https://ukconstitutionallaw.org/2019/10/04/anne-twomey-article-9-of-the-bill-of-rights-1688-and-its-application-to-prorogation/&gt; accessed 7 March 2024

[85] Cf Re De Keyser’s Royal Hotel (n18) 539

[86] Cherry/Miller (II) (n1) [31]

[87] (n61); cf ibid [32]

[88] Cf Aileen McHarg (n67)

[89] Cherry/Miller (II) (n1) [32]

[90] Cf Lisa Webley and Harriet Samuels, Complete Public Law: Texts, Cases, and Materials (OUP 2021) 146

[91] R (ex parte Miller) v Secretary for State for Exiting the European Union [2017] UKSC 5 [44]

[92] William Edward Hearn, The Government of England: its Structure, and its Development (Longmans, Green, Reader, and Dyer, 1867) 68-70; cf A.V. Dicey (n14) cxxxvi

[93] William R Anson (n56) 28

[94] A.V. Dicey (n48)

[95] ibid

[96] Cf Martin Loughlin, The Case of Prorogation (n38) 6

[97] Burmah Oil Co (Burmah Trading) Ltd (n10) 101; cf Sebastian Payne, ’The Royal Prerogative’ in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (OUP 1999) 86

[98] Jean Porter (n5) 256-257, 259

[99] Cf Cherry/Miller (II) (n1) [39]

[100] Cherry/Miller (II) (n1) [39]

[101] Cf Jeffrey Goldsworthy (n1) 254, 256

[102] Cf M v Home Office (n7) 395

[103] Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens, Public Law: Text, Cases, and Materials (5th edn, OUP 2023) 114-115; cf. R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others [1995] 2 AC 513, 567-568; Cherry/Miller (II) (n1) [40]

[104] Cherry/Miller (II) (n1) [39]

[105] ibid (n1) [40]

[106] ibid [41], [46]

[107] cf Jeffrey Goldsworthy (n6) 236-279; Jean Porter (n5) 255

[108] Jeffrey Goldsworthy (n6) 245-246; Jeffrey Goldsworthy, ’Parliamentary Sovereignty and Constitutional Change in the United Kingdom’, in Rawlings, Richard; Leyland, Peter; Young, Alison L, (eds), Sovereignty and the Law: Domestic, European, and International Perspectives (OUP 2013) 55; Cf Cass R Sunstein, ’Incompletely Theorized Agreements in Constitutional Law’ [2007] Social Research 1, 13

[109] Cf Jean Porter (n5) 244, 257

[110] Mark Elliott (n30) 626

[111] Cf Alison L Young (n31)

[112] Cf Cherry/Miller (II) (n1) [40]

[113] Cf Jean Porter (n5) 256

[114] Burmah Oil Co (Burmah Trading) Ltd (n10)100

[115] Cf Jeffrey Goldsworthy (n6) 234-235

[116] ibid

[117] Cf ibid 159-173

[118] ibid 78-109; Cf Sebastian Payne (n97) 95-96

[119] GCHQ (n15) 407

[120] Patriotic Front-ZAPU (n71)

[121] Burmah Oil (n10)

[122] Cherry/Miller (II) (n1) [36]

[123] Cf David Hope (n9) 95-96

[124] Mark Elliot, ’A new approach to constitutional adjudication? Miller II in the Supreme Court’ (n28)

[125] Cf Brigid Hadfield (n71) 197, 231

[126] Cherry/Miller (II) (n1) [36]

[127] Timothy Endicott (n40) 179

[128] Paul Craig, ’The Supreme Court, Prorogation and Constitutional Principle’ (n28) 253-254

[129] Cf Cherry/Miller (II) (n1) [33]

[130] Timothy Endicott (n40) 181

[131] A.V. Dicey (n48) cxxxvi

[132] Timothy Endicott (n40) 177

[133] Jeffrey Goldsworthy (n6) 180

[134] ibid

[135] Cherry/Miller (II) (n1) [38]

[136] Re De Keyser’s Royal Hotel Ltd (n18)

[137] Timothy Endicott (n40) 177

[138] Paul Craig, ‘The Supreme Court, Prorogation and Constitutional Principle’ (n28) 256; Timothy Endicott, ibid

[139] R v Secretary of State for the Home Departement ex p Fire Brigades Union [1995] 2 AC 513

[140] Timothy Endicott (n40) 177

[141] Cf Paul Craig,‘The Supreme Court, Prorogation and Constitutional Principle’, [2020] PL 248, 256-258

[142] Richard Ekins, The Supreme Court’s prorogation judgment and its constitutional consequences (n37) [17]

[143] Sue-Ellen Braverman, ’Judicial Review Trends and Forecasts 2021: Accountability and the Constitution’ (UK Government, 19 October 2021) <https://www.gov.uk/government/speeches/judicial-review-trends-and-forecasts-2021-accountability-and-the-constitution&gt; accessed 18 January 2024

[144] Dissolution and Calling of Parliament Act 2022

[145] Cf Edward Scott ‘Dissolution and Calling of Parliament Bill HL Bill 51 of 2021–22’, (House of Lords Library Briefing, 3 November 2021) 3; Richard Ekins, The Supreme Court’s prorogation judgment and its constitutional consequences (n37) [17], [32]

[146] Mark Elliott (n30) 643-645

[147] Cf Timothy Endicott (n40) 181

[148] Cf Alison L Young (n31)

[149] Re De Keyser’s Royal Hotel Ltd (n18)

[150] GCHQ (n15) 418

[151] Cf Richard Ekins, The Supreme Court’s prorogation judgment and its constitutional implications (n37) [9]; James Fowkes, ’Prorogation of the Legislative Body’ in Max Planck Encyclopaedia of Constitutional Law in Steven Spadijer (n38)

[152] Cf Miller II (n17) [55]: Paul Daly (n38) 18; John Finnis (n36) 8-9

[153] Cherry/Miller (II) (n1) [37]

[154] Cf Miller II (n17) [42]

[155] Cherry/Miller (II) (n1) [31]

[156] (n16) [40]

[157] ibid

[158] Cf Paul Craig, ’The Supreme Court, Prorogation, and Constitutional Principle’ (n28) 250-251

[159] Cherry/Miller (II) (n1)[39]

[160] ibid

[161] Cf Jean Porter (n5) 250, 259; Gratian, Decretum 1.4 in Jean Porter (n5) 250

[162] Shergill (n16) [40]

[163] Cherry/Miller (n1) [31], [39]; Cf Mark Elliott (n30) 634

[164] A.V. Dicey (n48) cxxix

[165] Sir William Anson, The Law and Custom of the Constitution (vol 1, 3rd edn, Clarendon Press 1907) 47-48

[166] Cherry/Miller (II) (n1) [52],[57]

[167] Paul Craig, ’The Supreme Court, Prorogation and Constitutional Principle’ (n28) 253-254; Mark Elliott, ’A new approach to constitutional adjudication? Miller II in the Supreme Court’ (n28); Cf Mark Elliott (n30) 642-643

[168] Paul Craig, ibid 256; Cf Mark Elliott (n30) 631-632

[169] Paul Craig, ibid 254

[170]  Richard Ekins in ’Oral evidence: Prorogation and implications of the Supreme Court judgment’ [2019] (HC 2666)

[171] Cf A.V. Dicey (n48) 3; Jeffey Goldsworthy  (n6) 9

[172] Tom Bingham, The Rule of Law (n6) 162

[173] Tom Bingham ibid; A.V. Dicey (n48) 3

[174] Michael Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Bloomsbury 2017) vii

[175] Union with Scotland Act 1706; Union with England Act 1707

[176] Cf Jeffrey Goldsworthy (n6) 165-173, 259

[177] Cf Cherry/Miller (II) (n1) [41]

[178] Cf ibid [42]

[179]ibid[43]

[180] ibid

[181] Cf Richard Ekins, The Supreme Court’s prorogation judgment and its constitutional implications (n37) [15]

[182] Richard Ekins, ibid [12]

[183] Cherry/Miller (II) (n1) [44]

[184] Cf ibid [45]

[185] Cf Burmah Oil Co (Burmah Trading) Ltd (n10) 100

[186] Paul Craig, ’Response to Loughlin’s note on Miller; Cherry’ (n28) 282-283; Cf Anne Twomey (n84)

[187] R (Barclay) (No 2) (n81) [48]; cf Re De Keyser’s Royal Hotel (n18) 539 (Lord Atkinson)

[188] Paul Craig, ’Response to Loughlin’s note on Miller; Cherry’ (n28) 282-283; Anne Twomey (n84)

[189] Steven Spadijer (n38) 

[190] Paul Craig, ’Response to Loughlin’s note on Miller; Cherry’ (n28) 283

[191] Steven Spadijer (n38)

[192] Cf Yves Simon, A General Theory of Authority, 30-33, 47-67; Reginald Garrigou-Lagrange OP, ’The Subordination of the State to the Perfection of the Human Person’ in Philosophising in Faith: Essays on the Beginning and End of Wisdom (Matthew K Mienard trans, Cluny Media, 2019) 183-203

[193] De Keyser’s Royal Hotel (n18) 539 (Atkinson LJ)

[194] Christoper St German (n18); Richard Hooker, Of the Laws of Ecclesiastical Polity (1888) in Jeffrey Goldsworthy (n6) 73

[195] William Blackstone (n18) 149; Cf Walter Ullmann, ’This Realm of England is an Empire’ [1979] 30 JEH 175, 201n110

[196] Cf Steven Spadijer (n38)

[197] Paul Craig, ’The Supreme Court, Prorogation and Constitutional Principle’ (n28) 254

[198] Cherry/Miller (n1) [43]

[199] William Paley, The Principles of Moral Philosophy (Liberty Fund 2002) 329; Cf AV Dicey (n48) cxxxi

[200] David Torrence, ’Royal Assent’ (CBP9466, 23 October 2023) 12

[201] Jonathan Sumption (n33)

[202] Timothy Endicott (n40) 181

[203] Cf Aristotle, Politics (Ernest Barker and R.F. Stanley trs., OUP 1998) 7; George F Will, Statecraft as Soulcraft: What Government Does (Simon and Schuster 1983) 17, 19, 24

[204] Cherry/Miller (II) (n1) [55]

[205] ibid

[206] ibid

[207] Aileen McHarg (n67) 94-95

[208] Timothy Endicott (n40) 177

[209] ibid

[210] ibid

[211] Cherry/Miller (II) (n1) [50]

[212] Aileen McHarg (n67) 94

[213] Shergill (n16) [40]

[214] R v Inland Revenue and Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982]AC 617, 644

[215] Endicott (n40) 181

[216] Cherry/Miller (II) (n1) [48], [52], [57]

[217] ibid

[218] ibid [48]

[219] Cherry and Others v Lord Advocate for Scotland [2019] CSOH 70, 5; Cherry and Others v Lord Advocate for Scotland [2019] CSIH 49 [35]. [38], [76]; Miller (II) (n17) [33]

[220] Cherry/Miller (II) (n1) [48]

[221] ibid [48]

[222] Cherry and Others v Lord Advocate for Scotland [2019] CSIH 49 [99]

[223] ibid

[224] ibid

[225] ibid

[226] Mark Elliott (n30) 631

[227] Cf Jeffrey Goldsworthy (n6) 9; Steven Sapadijer (n38)

[228] Jonathan Sumption (n33)

[229] Cf Cherry/Miller (II) (n1) [34]

[230] Sir Matthew Hale, ’Reflections by the Lord Chief Justice Hale on Mr Hobbes his Dialogue of the Law’ in Jeffrey Goldsworthy (n6) 269

[231] Aileen McHarg (n67) 94

[232] Cf Mark Elliott (n30) 642

[233] Martin Loughlin, The Case of Prorogation (n38) 8, 15

[234] cf Dicey (n48) 95, 100

[235] ibid

[236] Mark Elliott, ’A new approach to constitutional adjudication? Miller II in the Supreme Court’ (n28)

[237] Paul Daly (n34) 11

[238] Maurits Helmich (n25)

[239] ibid, 2010

[240] Cf Cass R Sunstein (n108) 13; Cass R Sunstein, ’Incompletely Theorized Agreements’ [1995] HLR 1733, 1739

[241] Cf Jean Porter (n5) 244

[242] Jean Porter, ibid 259; Cf Cherry/Miller (II) (n1) [39]

[243] Patriotic Front-ZAPU (n71); Cf Shergill (n16) [40]

[244] Cf Burmah Oil Co (Burmah Trading) Ltd (n10) 100 (Reid LJ)

[245] GCHQ (n15) 418 (Roskill LJ)

[246] (n16) [40]

[247] Steven Spadijer (n38)

[248] Cherry/Miller (II) (n1) [33]-[34]

[249] Cf A.V. Dicey (n48) cxxix

[250] Cherry/Miller (II) (n1) [43]

[251]  Jeffrey Goldsworthy (n6) 245-246; Jeffrey Goldsworthy (n108) 55; Cf Cass R Sunstein (n108) 13

[252] Re De Keyser’s Royal Hotel (n18) 539; William Blackstone (n18) 149, 181

[253] Cf Yves Simon (n192) 30-33, 47-67; Reginald Garrigou-Lagrange OP (n192)

[254] Cf GCHQ (n15) 418

[255] Cf Cherry/Miller (II) (n1) [44]

[256] Cf Cherry/Miller (II) (n1) [34]

[257] Aileen McHarg (n67) 94

[258] Endicott (n40) 177

[259] Cf Shergill (n16) [40]

[260] Cf Cherry/Miller (II) (n1) [48], [52], [57]

[261] Cf Jeffrey Goldsworthy (n6) 9; Steven Sapadijer (n38); Jonathan Sumption (n33)

[262] Cf Maurits Helmich (n25) 2009, 2030

[263] Cf Jean Porter (n5) 244, 257