Abstract

The judgment of the UK Supreme Court in Miller (No 2) [2019] UKSC 41 that a prorogation of Parliament in September 2019 under the prerogative power was “unlawful, void and of no effect” is politically and legally controversial. It has led the newly elected government in the United Kingdom to announce a review of the constitutional relationships between the political and judicial branches of government. Eminent legal scholars have variously described the decision itself as either “wholly unjustified by law” or one that has “relit a lamp of the constitution”.  The paper examines such claims. 

 The case is the latest in a line in which the courts in the United Kingdom have sought to explain the principles and values of the British constitution and the role of the courts in protecting them from legislative or executive encroachment. Such cases turn on assessments of what is “constitutional” or “fundamental” in statutes and in common law and are hostile to encroachment by the executive or legislative branches.  The reasoning of the courts has been criticised for applying the methods of modern administrative law to matters of high policy.  In Miller (No 2), as in the earlier Miller (No 1), the focus is the institutional architecture of the constitution, rather than the more familiar context for constitutional contest of individual freedom and rights.  There are differences of opinion as to whether judges in such cases are carrying out their inevitable responsibilities under the rule of law to maintain and explain the constitution or whether they tip over into illegitimate constitution-building. 

 The changing scope of the political constitution of the United Kingdom post-Brexit and post-devolution and the incongruity of a constitution still based on the “efficient secret” of the near complete fusion of the executive and legislative powers of the state, may lead to a new constitutional settlement in the United Kingdom.  If so, Miller may come to be seen as a product of a set of circumstances that were “unique”, as the Court in is reasons suggested it was, and the march of common law constitutionalism may subside.  If not, Miller may point to further judicial development of the United Kingdom constitution. 

 The paper examines whether Miller is properly to be seen as part of what Justice Gummow once described as “the continuing intellectual agonies attending British constitutionalism”, of little relevance to constitutionalism in Australia or other common law jurisdictions with their own unique constitutional histories.  It suggests that the reasoning employed by the United Kingdom Supreme Court has implications for the continuing tug in all jurisdictions between the political and the legal (and in particular the concepts of “justiciability” and “parliamentary sovereignty”). It also has implications for the role in constitutional law of substantive values, many derived from antecedent common law in our shared traditions.  It questions whether the High Court’s location of sovereignty in the Australian Constitution and the stricter separation of powers under the Constitution will accelerate divergence in constitutionalism from jurisdictions such as Canada, the United Kingdom and New Zealand. 

Speaker

The Hon Dame Sian Elias GNZM PC QC

Commentator

Professor Cheryl Saunders AO, The University of Melbourne

Chair

The Hon Justice Catherine Holmes, Chief Justice, Supreme Court of Queensland

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About Current Legal Issues Seminar Series

Launched in 2009, Current Legal Issues is a high profile series of seminars featuring leading national and international legal scholars, practitioners and members of the judiciary.

The series is a collaboration between UQ Law, the Bar Association of Queensland, the Queensland University of Technology Faculty of Law and the Supreme Court of Queensland Library. It seeks to bring together leading scholars, practitioners and members of the Judiciary in Queensland and from abroad, with a view to:

  • providing a forum for the critical analysis and discussion of current legal issues
  • bringing to bear upon those issues the different perspectives offered by leading academics, legal professionals and the Judiciary
  • forging stronger links between academic and practising lawyers in Queensland.

Each seminar will comprise a Chair, Speaker, and Commentator. The Chair will introduce the Speaker and Commentator. A paper will then be presented by a leading practitioner or academic lawyer, and will be subject to a brief, expert commentary. There will then be an opportunity for members of the floor to ask questions and engage in further discussion. The paper and a short profile of each participant will be available in advance on this website to assist in facilitating full discussion.

Venue

Supreme Court of Queensland
Queen Elizabeth II Courts of Law Complex
415 George Street, Brisbane
Room: 
Banco Court

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