The UK Supreme Court’s Miller II: Keeping the Court out of politics’ way?

Abstract

1. Introduction

Constitutional law these days is not a boring subject. Especially in the United Kingdom, since recent Supreme Court judgments in R v. Prime Minister and Cherry v. Advocate General for Scotland (“Miller II”) in 2019¹ and the earlier Miller v. Secretary of State (“Miller I”) case in 2017,² the discipline is right back in the center of both academic and public attention. Constitutional law blogs thrive as outlets of pungent and yet thoughtful perspectives on whether the two aforementioned court rulings deserve public appraisal.³ In Miller I, the Supreme Court majority ruled that the Prime Minister needed explicit authorization from Parliament to initiate the “article 50” procedure to leave the European Union, thereby effectively forcing Parliament to pass legislation to grant such authorization as to initiate the process.⁴ In Miller II, the Supreme Court again got in the way of the “pro-Brexit” government, ruling that the Prime Minister was not legally authorized to prorogue Parliament for five weeks just before the date the United Kingdom would drop out of the European Union (October 31, 2019).

Both Miller cases provoked a significant amount of criticism, most of them in some way or another accusing the Supreme Court of judicial activism. The Court, the critics assert, should not have claimed such a prominent role for itself. Why, after all, should courts feel licensed to intervene in the political dynamics between Parliament and government, which has for so long regulated itself quite successfully?⁵ Defenders of the Supreme Court judgments retort that important constitutional principles are at stake—and that courts should never allow constitutional principle to be trampled upon because politics gets contentious.⁶ To which more conservative voices in turn reply that surely the Supreme Court is not the babysitter of British democracy, and that Parliament is politically perfectly able to look after itself.⁷

This article focuses on the Miller II judgment, and analyzes the constitutional tension underlying the case as revolving around the notion that judges should not enter the domain of “politics.” It makes two claims. First, three normative worries guide attempts to distance adjudicative judgment from the political sphere. Courts should not disrespect settled law (the “lawmaking worry”), or interfere with the autonomy of politics (“the interventionism worry”), or answer political questions (“non-justiciability worry”). Though they overlap, these worries reflect different normative commitments: respectively, to positive legality, to the autonomy of the political domain, and to a clearly bounded judicial role. Second, though all these three worries represent coherent norms in the abstract, in deeply controversial cases like Miller II, those norms fail to be of independent help. Differently put, judgments on the proper role of courts within the wider political scheme build on definitions that themselves function as partisan positions in society’s wider political struggle. Once fully grasped, this insight provides an important reality check in reviewing programs to depoliticize adjudication. Sure, attempts to determine the proper constitutional relation of the judiciary to the political domain may be sensible and even cogent, but we should not deny their ideological roots.

The first half of the text (Sections 2–5) defends the first analytical claim introduced: that to fully grasp the Miller II dispute, one needs to understand how three separate constitutional worries govern the controversy. In doing so, the article first briefly sketches the background to the dispute in Miller II (Section 2). Then, it discusses the complaint that Miller II’s legal reasoning is not sufficiently embedded in existing law, which constitutes the lawmaking worry (Section 3). Subsequently, it introduces the idea that the Miller II judgment fails to respect the autonomy of politics, which I label the interventionism worry (Section 4). As I explain, this latter worry manifests itself in two strongly intertwined and yet distinct varieties. Judicial intervention would paralyze healthy political antagonism (the “legalization variety”) and block effective attribution of constitutional responsibility (the “dilution variety”). Lastly, I discuss the “non-justiciability worry,” being the idea that Miller II justices engage with issues that are not properly dealt with by judges (Section 5). Miller II, the criticism is, regards questions that politicians are there to answer, that are insufficiently technical-legal in nature, and/or that do not concern any individualizable issues of rights.

The remainder of the article defends the second claim introduced: that norms on the proper role of the judge vis-à-vis politics cannot mediate constitutional disputes in a politically neutral way. As I show, the principles of legality, democracy, and separation of powers that define the normative concerns behind the Miller II dispute are crucially ambiguous in their practical upshot. That is, they can always be used both to criticize judicial interventions and to justify them (Section 6). At first sight, one could think that justiciability norms have more potential to independently guide legal practice, but also that hope is likely to be in vain. The answer to whether an issue is justiciable, I demonstrate, depends heavily on how one frames the relevant question at stake. Due to the immediate, adversarial, and hermeneutically situated nature of judgments in politically charged moments, that framing virtually always reflects partisan commitments (Section 7). Therefore, the article concludes, there will ordinarily be no politically neutral way to decide on what the constitutionally appropriate relation of the judge to politics is (Section 8).

2. Miller II

In the United Kingdom, prorogation of Parliament is the way to bring a legislative session to an end. Prorogation takes place during a ceremonial procedure in Parliament, with a five-member Royal Commission authorized by the Queen shutting down both Houses. While prorogued, neither House of Parliament can meet. This grants the Prime Minister some time to prepare the Queen’s speech—the general outline of government policy which the Queen reads shortly after Parliament reconvenes. Furthermore, prorogation can serve a variety of more procedural purposes, such as killing off unsupported Bills, forcing a deadline on outstanding legislative disputes,⁸ or allowing the government to push through Bills that the House of Lords has delayed to the next session.⁹

In normal circumstances, the prorogation of Parliament is hardly an exciting event. To put it in Jacob Rees-Mogg’s words, usually it is a rather “routine” and “actually quite boring” constitutional event.¹⁰ But on August 28, 2019, a prorogation was announced about which many politicians and constitutional commentators felt differently. The prorogation was planned to take place between September 9 and October 14, 2019. That is an unusually long period—usually a prorogation takes under ten days; this would be thirty-four days. Moreover, the prorogation was felt to be planned at an unusually precarious political moment, namely quite shortly before October 31, the day the United Kingdom was to exit the EU. Many thought the prorogation was a political tactic—a way for Boris Johnson’s Government to “reduce the time available for Parliamentary scrutiny” and “a means to stymie any further legislation regulating Brexit.”¹¹

To the Scottish Court of Session, it was evident that this was indeed the “true reason” for the prorogation.¹² As Lord Brodie opines, the prorogation was sought in a “clandestine manner,” and had “no apparent purpose, other than not to have time available for. . . the ongoing Brexit procedure.”¹³ The UK Supreme Court, on the other hand, cleverly refused to adopt an explicitly accusatory attitude. What matters legally, it determines, are not the (subjective) reasons or motives of the Prime Minister, but rather whether there is (objective) reason to close down Parliament for five weeks.¹⁴ That, the Supreme Court Justices unanimously declare, is “impossible to conclude” on the basis of the evidence put before them.¹⁵ The only thing that the evidence shows is a lack of thought about the time needed to approve a possible new withdrawal agreement, a lack of visible consideration of the consequences of prorogation for Parliament’s opportunities to exercise scrutiny, and a hardly reassuring reassurance that parliamentary sitting in September is a mere “rigmarole” anyway.¹⁶

Now, as Paul Yowell has pointed out, the Supreme Court’s confident assertion that there was not “any reason—let alone good reason—to advise Her Majesty to prorogue Parliament for five weeks” is questionable at best.¹⁷ Indeed, the Supreme Court itself already cites a few reasons discussed in an intragovernmental Memorandum (e.g. the abnormally long parliamentary term, and the need to put pressure on passing pending bills and to make room for new legislation in the fresh term).¹⁸ Still, we might still endeavor to interpret the judgment more favorably, and read the Court as saying that there are no constitutionally valid reasons to prorogue Parliament. Formulated as such, the judgment does indeed seem to make sense as a statement of British constitutional law, especially so if one considers the alternative to prorogation: recess. Both Houses of Parliament can pass a motion to recess, which, like prorogation, also stops them from sitting.¹⁹ If the Prime Minister really wanted to close parliamentary doors for as long as five weeks, why did he not consider asking Parliament to authorize this by passing a formal recess motion?²⁰ Surely that was at least a constitutional procedure worth considering in a controversial case such as this one.

At this point, a second line of counterargument is available to the critic of Miller II: that there is a difference between principle and legally enforceable principle. It is undoubtedly true, as a matter of political convention, that it is Parliament’s proper role to scrutinize the functioning of government. But that does not imply that courts should therefore consider themselves to be the guardians of these political mores. The interaction between government and Parliament, it is true, is often driven more by the “dirty” logic of political interest than by the tidy logic of legalistic principle. But perhaps it is precisely for that reason that courts should be anxious not to get involved in “high politics” themselves. Better to acknowledge the inherent limits to the judicial craft than have our judges become just another actor in the political game—a role which they are particularly ill suited to fulfill.²¹

I take it that the formulation above represents, in broad strokes, the general argument put forward by those who criticize the Miller II judgment for its alleged “political” nature. Now, the goal of this article is not to argue for or against the critique’s normative persuasiveness in this specific case. Rather, it is to explicate the general worries underlying it, and explain why the Supreme Court’s judgment, though seemingly presenting good arguments to counter the accusations, fails to fully accommodate those worries. As mentioned in Section 1, we can distinguish three direct forms in which the political adjudication critique manifests itself: the lawmaking worry, the interventionism worry, and the non-justiciability worry. Sections 3–5 discuss them one by one and show how they represent three fundamental leaps in the Supreme Court’s reasoning that are open to discussion.

3. The lawmaking worry

One critique that has been raised to the Miller II ruling lies in its alleged poor embeddedness in the British positive law. Instead of dutifully sticking to the law, the complaint is, the Supreme Court has effectively invented new law. In areas of law that speak less to the democratic or symbolic imagination—say, when it comes to technical issues of trade law or the law of trusts—such lawmaking may not be experienced as problematic. When a case becomes more politically charged, however, critics are less inclined to trust the judge with effective lawmaking power, and may interpret judicial creativity as a form of political adjudication. The legal controversy in Miller II, then, is how the power to prorogue is embedded in the law, and whether the law indeed prohibited the Prime Minister’s attempts to prorogue Parliament.

To understand the debate surrounding this question, one should start with noting that the decision to prorogue Parliament is a so-called exercise of the prerogative. That means, roughly put, that it is a customary power of the Queen and the ministers who act in her name. Its origin does not lie in an express legal authorization of some kind, but rather the lack of any rule of law indicating the Queen (in practice, the Prime Minister) would not be authorized.²² The legal question in the Miller II case, then, is whether such a rule of law exists under British public law. Is there a binding rule or legal principle that entails that September 2019’s five-week prorogation was legally impermissible?

In the literature, there are two competing answers to this question. Political constitutionalists, such as Timothy Endicott and Richard Ekins, argue against the involvement of law in political disputes like the one concerning the prorogation of September 2019. In their view, there are plenty of informal political tools to fight off and punish any disproportionately long prorogation.²³ Due to the Fixed-Term Parliaments Act 2011, government can be thrown out by Parliament at any time (section 2(3)), and can never escape the judgment of voters during regular elections (section 1(3)). Moreover, when the prorogation was announced, the House of Commons still had a week—between September 3 and 10—to pass legislation to counteract any of the government’s overambitious plans. (Indeed, Parliament did not fail to take that opportunity, passing an Act requiring the Prime Minister to request an article 50 extension by October 19).²⁴ Furthermore, if everything else goes wrong, the government will still never be able to prorogue Parliament for a period longer than a year, since it will always need parliamentary approval to raise public money and to keep a standing army.

In its Miller II judgment, the Supreme Court showed itself little comforted by these political constraints on government, calling them a “scant reassurance.”²⁵ Taking a more legal constitutionalist perspective, the Court assumes an active role in protecting the British parliamentary democracy as such. Constitutional law, thus seen, incorporates parliamentary ideals, making Miller II about more than “not dropping out of the EU by 31 October,” or “making sure Parliament will reconvene eventually.” Rather, it is about the principle that the government does not try to bypass Parliament, and instead behaves with an appropriate amount of constitutional respect. That means that government should not use its prerogative power to try and undercut parliamentary mechanisms that ensure legislative (co)authorship and political debate—even if one gets away with it politically.²⁶ Especially when government actively undercuts the mechanisms of parliamentary control, the thought is that the Supreme Court should step in to restore the balance.²⁷

To underpin its view, the Supreme Court identifies two legal principles that supposedly have been invoked “time and again” by courts: parliamentary sovereignty and parliamentary accountability.²⁸ The former of these two principles—protected in the Case of Proclamations,²⁹Attorney General v. De Keyser’s Royal Hotel Ltd,³⁰ and Fire Brigades Union (FBU)³¹—regards the notion that the will of the democratically elected legislature overrides the prerogative powers of the Crown.³² The latter, which the Court declared can be found back in R v. Secretary of State for the Environment, ex parte Nottinghamshire County Council³³ and Mohammed (Serdar) v. Ministry of Defence,³⁴ roughly concerns the idea that Parliament has means to subject policies of the executive to question and scrutiny.³⁵ Clearly, the Supreme Court proposes, these principles of parliamentary sovereignty and accountability are jeopardized by abnormally long prorogations like the one in September 2019. After all, it is hard for Parliament to exercise its sovereign legislative authority if it stands prorogued, and the same counts a fortiori for its opportunities to hold government accountable.³⁶

Though the abstract force of constitutional principles of parliamentary sovereignty and parliamentary accountability is clear, the Supreme Court’s reasoning on this point has not been beyond controversy. In particular, critics have questioned the legal basis behind the reasoning. The Court is undeniably right to state that all prerogative powers are limited by the common law.³⁷ Consequently, prerogative powers cannot be used to unjustifiably frustrate the operation of the constitutional principles that flow from the common law.³⁸ Undoubtedly, parliamentary sovereignty is such a common law principle—and, in certain contexts, parliamentary accountability is also of legal significance. But even so, it remains open to dispute whether the prorogation of Parliament of September 2019 was inconsistent with the (common) law.

Though I do not aim to take a legal stance myself, one can see the reason for controversy. Consider the Supreme Court’s interpretation of parliamentary sovereignty. Up till the Miller II judgment, the principle of sovereignty had always been understood as a rule granting supremacy to acts of Parliament. That is not the same as a functional principle that would protect the Houses of Parliament against being prorogued or (temporarily) sidetracked.³⁹ Putting the two on a par stretches the parliamentary sovereignty principle in two non-trivial respects. First of all, one might wonder, with Richard Ekins, why Parliament would in effect “lose” its sovereignty when it stands prorogued, while it retains its sovereignty when it does not convene for other reasons (notably, when it is dissolved before elections).⁴⁰ Second, and more crucially, the traditional principle of supremacy of Acts of Parliament serves different values than Miller II’s principle of functional immunity of the Houses of Parliament. The traditional supremacy principle establishes a democratic principle of legality, and thereby creates a regime of legal unity and equality under the law. The “new” functional principle seems to serve different values (e.g. effective political influence by the House of Commons), which, indeed, have traditionally not directly been protected by law.⁴¹

When it comes to the principle of parliamentary accountability, the legal underpinnings of the Supreme Court’s judgment are unfortunately also open to criticism. Up to the Miller II judgment, the accountability principle as such had never been quite recognized as a principle of British public law—or at least not as a ground for judicial intervention. In the aforementioned Nottinghamshire County Council and Mohammed v. Ministry of Defence rulings cited by the Supreme Court, it is true that the importance of respecting political accountability mechanisms was emphasized. In those cases, however, the Court cited the principle to justify an attitude of restraint: the idea that the judiciary should refrain from imposing legal accountability if political accountability mechanisms are in place. From that perspective, it is not hard to understand the objections to the Supreme Court’s appeal to the principle of parliamentary accountability. Not only is there a notable difference between respect-worthy practices and conventions on the one hand, and legally enforceable principles on the other.⁴² (The law may respect, say, values of friendship and family, but that does not turn them into legal principles.) But critics also complain that Miller II transforms a principle of deference to established political supervision mechanisms into an excuse to actively mingle in that supervisory relationship (i.e. by determining that the prorogation cannot be tolerated).⁴³

That summarizes the argument behind the first variety of the political adjudication critique: that the Court is making the law up out of thin air. Sure, in some cases judicially enforced legal change may be unavoidable or even desirable, but this is (arguably) just a shot in the dark. And quite to the detriment of healthy political procedure, one could contend. As Sir Stephen Laws puts it, “[w]hen you have a court departing from settled law to tell you who is right and who is wrong in suitably uncompromising terms. . . the incentive to conciliate your political opponents disappears.”⁴⁴ Surely, indeed, the Court’s democratic legitimacy is in jeopardy if legal sources become a mere framing mechanism, instead of a genuine constraint.

4. The interventionism worry

The previous section highlighted the positive-legal problems with Miller II. The following section discusses the limitations to judicial competence when it comes to adjudicating issues with political content. The current section focuses on the idea that “politics” should function autonomously, and that the judiciary should thus not over-supervise the functioning of the other branches of government. Consider article IX of the Bill of Rights of 1688, one of the key constitutional norms under dispute in Miller II: “[T]he Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” The question here is: does prorogation count as one of the “Proceedings in Parlyament” as described by article IX? In common sense terms, one might think it does. As Section 2 mentioned, the actual ceremony that constitutes a prorogation takes place within parliamentary confines. In the Miller II ruling, however, the Supreme Court did not support this common sense reading of what constitutes a “proceeding in Parliament.” Rather, it defined the term in more purposive and essentialist terms:

The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a “proceeding in Parliament.” It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. . .. This is not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end.⁴⁵

Yes, the prorogation took place within the premises of Parliament. And yes, Members of Parliament were present at the time and implicitly recognized the prorogation as a legally valid (though perhaps politically defiant) exercise of the prerogative. But no, this does not count as a “proceeding in Parliament,” because it is not part of the “core or essential business of Parliament.” One can see why opponents of Miller II, who defend a more proceduralist version of Parliamentarianism, have trouble accepting this line of argument.⁴⁶ Judges, the thought is, are not to mingle with parliamentary politics—even when it concerns affairs we would judge no part of the ultimate purposes “politics” is there to fulfill.

This needs further explanation. Why should we desire to categorically protect “politics” as an autonomous practice anyway, now that we could also only protect valuable aspects of that practice (e.g. parliamentary debate)? This section presents two answers, or “varieties” of the interventionism worry: the “legalization variety” and the “dilution variety.” The first concerns the idea that too much judicial intervention trifles healthy political antagonism. The second regards the fear that judicial interference paralyzes the mechanisms that help to ascribe final political responsibility and accountability.

Let us start by discussing the former “legalization” variety: the idea that healthy antagonism requires that politics is not burdened with too much legal regulation. An eloquent expression of this principle can be found in Lord Reed’s dissent in Miller I, the Supreme Court case already mentioned in this article’s introduction:

[C]ontrols over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character. . .. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.⁴⁷

Lord Reed teaches us here that there are not only technical-legal but also systematic arguments against judicial interference in issues of national politics. Legal constitutionalist approaches like the Supreme Court’s in Miller II start with a moralized picture of what a well-functioning parliamentary system looks like, and see it as the responsibility of Courts to protect that system. For the critic, however, such an approach neglects the negative side-effects that are inherently tied to legal intervention in the political arena. Democratic politics, the point is, is ultimately not something that can be outsourced to courts, like one could outsource the maintenance of an office space to cleaning personnel. Rather, one needs an adversarial political sphere—an arena where political movements get the chance to openly clash and flourish.

Consider what Carl Schmitt tells us in his notes on democracy: “In the domain of the political, people do not face each other as abstractions, but as politically interested and politically determined persons, as citizens, governors or governed, politically allied or opponents—in any case, therefore, in political categories.”⁴⁸ The argument against legalization here is twofold. First, if human beings are indeed the politically defined beings Schmitt thinks they are, and judges are human beings, then judges can be expected to be motivated by partisan loyalties. That introduces the ancient question that comes with all legal supervision of power: quis custodiet ipsos custodes (who guards the guardians)? If both politicians and judges are politically motivated anyway, then that produces a systematic argument against justifying judicial interference. (At least politicians are legitimated through elections.) Secondly and more importantly, Schmittian thought teaches us that politics is fundamentally not driven by rule-guided conduct and rational deliberation, even if we wish it would be. Rather, the idea is, some kind of friend–enemy distinction (as Schmitt would have it⁴⁹), or another adversarial principle, fundamentally fuels the practice. Political friction—such as, in Miller II, between government and Members of Parliament—is then not a pathology of democratic government. It is a sign that democracy is still alive.

The basic upshot is that even if parliamentary sovereignty is an undisputed principle of British politics, that does not mean that government cannot legally taunt Members of Parliament. The role of government within a parliamentary system is not one of simple subordination, as would be the case with, say, a soldier who awaits orders from the squad’s sergeant. Instead, parliamentary dynamics are more bidirectional in nature: government tries to push through certain policies and must direct Parliament even though the latter is ultimately in charge. For the perspective of the legalization variety (the first variety of the interventionism worry), this observation constitutes an important warning against overregulating parliamentary politics. Saying that courts should correct “undemocratic” interactions between Parliament and government becomes like saying that a referee should step in every time when players on a football pitch are being impolite to each other. It fails to recognize that the game of football is partly energized by emotions that border on aversion and the idea that “the other team cannot be allowed to win.” Shortcutting all manifestations of such antagonism does not improve the quality of the game. It kills it.

Bear in mind that politics can only be a domain of legitimate struggle if it comes with an ascription of responsibility: our Members of Parliament must fight for us. Having our political issues transposed to courtrooms brings the risk of making politicians eschew this responsibility—out of constitutional respect, or some other (more pragmatic) consideration.

That introduces the second variety of the interventionist worry: the dilution variety. If politics is indeed fundamentally a matter of ascribing responsibility, then we should confide our representatives with the power to do what is asked from them. If we do not grant political actors the freedom to make the decisions necessary to fulfill their constitutional roles, and install a rigid regime of supervision, political responsibility becomes diluted. Sometimes, the point is, it is better to have clearly defined pockets of final decision-making power than to have it spread among a plethora of different constitutional actors and supervisors. In politics, the perfect is often the enemy of the good. Yes, all politicians sometimes make constitutionally questionable decisions, but accepting an incidental transgression may be desirable above imposing excessive checks and balances.⁵⁰

In the debates surrounding Miller I and Miller II, this idea has particularly been expressed in relation to the position of the executive within the constitutional order. By imposing a regime of judicial supervision upon government, critics complain, the Supreme Court blocks and dilutes government’s proper functioning in two intertwined ways.

First of all, such supervision might be said to cripple the effective functioning of the executive, compromising government’s power to show—in William Blackstone’s terms—“unanimity, strength and dispatch.”⁵¹ Especially when it comes to matters of international affairs, such as Brexit negotiations, the thought is, it is important that government has final decision-making power. When executive decisions are regularly overturned by the judiciary, that principle is in jeopardy.

A second, related point may be even more important: even if we focus solely on the mission of making government accountable for a moment, judicial supervision may not be the best strategy. Judicial supervision, the concern is, could devalue the status of the primary democratic accountability mechanisms, notably elections. The genius of representative democracy lies partially in its simplicity. Whenever government makes bad policy, the traditional remedy is clear: rally to hold them accountable through elections and other political means. One might worry, then, whether installing a parallel system of accountability to judges does not distort this straightforward relationship between politicians and the electorate. Political actors will be incentivized to turn to courts rather than to popular mobilization to influence policies, and government gets to blame failures to deliver on promises on an overly restrictive judiciary. In the end, one could imagine, this leads to politicized litigation and juridified politics, both of which imply a problematic dilution of constitutional responsibility.⁵²

5. The non-justiciability worry

The previous sections highlighted two grounds to reject the Miller II judgment: one derived from the positive law (Section 3), the other from the institutional nature of politics (Section 4). Now, we will consider a third and last ground to criticize the judgment: subject-matter-related limitations to judicial competence. Some kinds of questions, the idea is, are fundamentally of such a nature that courts should not be reviewing them. The government’s exercise of powers of prorogation may be one such “political” issue.⁵³ In such a case, the issue does not even reach the stage of substantive review. As the judges of the Divisional Court put it: “The question of justiciability comes first, both as a matter of logic and of law.”⁵⁴

In its judgment, the Supreme Court brushes aside the non-justiciability worry. Because the question in Miller II concerns a question about the “lawful limits” of the power to prorogue, and not about its “exercise,” the Court deems its subject matter perfectly justiciable.⁵⁵ Among which lines the Supreme Court draws that lawful limits/exercise distinction, however, remains rather obscure. Unless the Court can show that what it does is methodologically different from substantively reviewing public policy, any lawful limits/exercise distinction looks awkwardly invented.⁵⁶

On its face, finding a formal framework to distinguish justiciable (“judicial”) from non-justiciable (“political”) issues is not a task we need to give up on before we started it. Indeed, careful analysis of existing doctrinal thought directs us towards three conceptual lines among which such a distinction can be defended. In order to be justiciable, one could argue, a question must be external to institutional politics, technical-legal in its nature, and about particular rights issues (not general policies). Accordingly, the idea is, if any of these three preconditions (“reason externality,” “legal technicality,” and “rights particularity”) is not met, a question is “political” and thus non-justiciable. Let us discuss them one by one.

The first variety, reason externality, is arguably the source of most of the debate on the Miller II case. The main idea here, which ties to the “dilution variety” presented in the previous section, is that judges should not second-guess the sincere normative judgments politicians make in fulfilling their constitutional task. Courts should then only interfere if the norms justifying that interference are the kind of obvious procedural ground rules that all democratically minded people should share. For example, judges cannot interfere with housing policies merely because they think they are a bad idea. They can, however, interfere if that housing policy is drafted to secretly boost Conservative electoral advantage by reshaping demographics.⁵⁷ The reason is that no one would defend the latter as a healthy part of democratic politics. To borrow the metaphor introduced by Jacob Rowbottom, there is a key distinction between “the government playing its hand of cards well to secure a desired outcome, and the government attempting to stack the deck in its favor.”⁵⁸

Of course, proponents of Miller II can coherently insist that the government’s attempt to prorogue Parliament is more like stacking the deck than just “playing the hand well.” Indeed, the judgment of the Scottish Court of Session mentioned in Section 2 defends an argument along those lines. So arguably does the Supreme Court, which—despite its denial to be concerned with political motives—dismissively labels the Prime Minister’s conduct as “[nothing] more than simply the leader of the Government seeking to promote its own policies” (who thereby forgets his “constitutional responsibility”).⁵⁹ Now, there is good reason to be careful with these kinds of ascriptions of constitutional foul play: political partisanship might cause us to ascribe bad faith when there is a genuine and sincere constitutional disagreement (a fact which reignites arguments in favor of deference).⁶⁰ Nevertheless, it seems clear that if we can indeed factually establish constitutional foul play, there is a strong argument to justify judicial correction.

A second, related way in which non-justiciable “political” questions can be identified is by defining them as questions that are insufficiently technical-legal in character. Here, what judges should refuse to take a stance on is “the” political purposes the constitution should ultimately be used for. Especially in common law jurisdictions, the thought is, there is not one such coherent set of purposes, and judges do better to refrain from authoritatively taking a stance on it. Rather, their forte lies in their skill in engaging with the conundrums of law by making use of several lawyerly piecemeal techniques, such as analogical reasoning, grammatical interpretation, and legislative-historical analysis.⁶¹ Whenever questions allow to be answered by using such technical-legal modes of reasoning, the idea is, the substantive issues at stake can legitimately be adjudicated. Questions, on the other hand, that do not allow to be answered by reference to judicially well manageable standards and techniques should be put aside as “political.”⁶² Assessing the political costs and benefits of the September 2019 prorogation, one could argue, can hardly be done by reference to such legal standards.⁶³ From that perspective, it might have been better if the Court had never considered itself incompetent to deal with in Miller II’s substantive questions.

Thirdly and lastly, it seems possible to make a coherent distinction between judicial and political questions among the lines of “particular rights versus general policy.”⁶⁴ Judges, one could contend, may be competent to answer the former kind of questions, but should refrain from adjudicating the latter.⁶⁵ Unlike legislative assemblies and departments of government, judicial panels lack the expertise and institutional nature to transparently balance competing policy considerations—and are, moreover, not politically accountable.⁶⁶ There are therefore good reasons to deny judges the benefit of the doubt, and not to allow them to consider issues that cannot sensibly be abstracted from general policy questions. For example, in MacCormick v. Lord Advocate, Lord President Cooper deemed himself incompetent to review Queen Elizabeth’s use of the title Elizabeth “II,” because that concerns an issue of “public right” (not of individual rights).⁶⁷ Similarly, in Gibson v. Lord Advocate, Lord Keith declared the Court of Session incompetent to review legislation regarding the control of fishing in territorial waters, because questions of general utility are political, and therefore non-justiciable.⁶⁸

Defenders of the Miller II judgment may point out that the Supreme Court has explicitly emphasized that the issue at hand in the Miller II case is unique; a “one off.”⁶⁹ The ruling, it could then be argued, is highly particular in its scope of application, and it should therefore not be feared that it has general policy implications. But the opposite conclusion seems at least equally defensible. The reason the Supreme Court feels obliged to emphasize the “one off-ness” of the judgment, one could say, does not prove the particularity of the rights question at stake, but rather the opposite: a lack of any principled legal issue. In other words, the Court tries to push its general policy agenda without being able to ground its judgment in a principled rights argument. Such a situation, indeed, triggers all worries that underpin the particular rights/general policy distinction. The last thing we want our judges to be is the kind of super-politicians that can overturn political decisions whenever they see fit.

Debate remains. This section has shown that “reason externality,” “legal technicality,” and “rights particularity” are coherent demands to set for justiciability. That in and of itself does not yet prove that Miller II was wrongly decided. Proponents of the judgment still have two straightforward ways to try and counter the non-justiciability critiques. First, they may deny the minor premise behind the critique, and argue that the Miller II ruling does concern an external and technical judgment of law regarding a particular rights issue. Alternatively, proponents may deny the major premise, and argue that we have no reason to accept the justiciability criteria mentioned—that modern courts should be able to pass judgment even when it involves (re)assessing political, teleological, or policy considerations. Accepting that latter line of argument would effectively imply getting rid of the non-justiciability doctrine entirely. Perhaps the time is ripe for such a development,⁷⁰ but surely such a reformation is not constitutionally uncontroversial.

6. Neutrally defining “legality” and “politics”?

The previous three sections showed that constitutional tension about the political position in the Miller II case can be classified among roughly three divisions. Critics build on distinctions of positive legality/extra-legality (the lawmaking worry), functional/dysfunctional politics (the interventionism worry), and judicial competence/incompetence (the non-justiciability worry). In this section, I argue that how one draws the first two distinctions in practice is not a matter of technical application, but rather a matter of politicized contextual judgment. In the next section, the same will be done for the justiciability/non-justiciability distinction, leading to the conclusion that there is no neutral way to separate legal judgments from political ones. That results in a remarkable observation about attempts to distinguish the judicial sphere from the domain of politics. Such a distinction may be coherently construed, but, I contend, it cannot neutrally be discovered—that is, without adopting a set of politically deeply controversial assumptions and definitions.

Let us start with the first theme: the legality/illegality distinction underlying the lawmaking worry. Critics assert that the Supreme Court took insufficient account of existing law by building on two legal principles that do not follow from the legal sources as such. Miller II sympathizers, like Paul Craig and Nick Barber, reply that the fact that the Court breaks new ground does not mean that the Court is bluntly making law; it may just be developing it.⁷¹ Sometimes, the argument is, the systematicity of the law simply asks for such a development.

Here lies, I think, the central paradox: though the distinction between “developing law” and “making law” is inherently suspect, there are no clear ways to avoid drawing it at least sometimes. The reason is that, however we may like to deny it, interpretations of standing law are always highly selective in how they build on existing legal sources. Creative reinterpretations of standing legal rules and principles may be inherently problematic, but at the same time there is no justification (or clear method) for categorically rejecting them. That counts both as a matter of legal doctrine and as a matter of normative principle.

As a legal matter, the legal conservative’s notion—namely, that legal interpretations need directly be tied to statute or legal precedent—may itself be poorly embedded in law.⁷² There is, in short, no contradiction in having a legal system that demands itself to be interpreted with some teleological imagination. In the UNISON case, for instance, the Supreme Court opined that a commitment to law comes with a commitment to the rule of law, ensuring that parliamentarianism does not become a “meaningless charade.”⁷³ Stephen Laws may reply that UNISON “went wrong,” because its standard is “so uncertain in its operation as to make the lawfulness” it propagates “totally unpredictable.”⁷⁴ Even so, the positive law may not always ascribe the highest relative value to the principle of predictability (whether we like it or not).

Of course, the lawmaking worry does itself not fully have to derive its normative force from standing legal doctrine. Indeed, it may also be grounded in a normative commitment to the principle of legality, roughly concerning the idea that official conduct should have a transparent source of legal legitimation. Thus considered, the legal-interpretive warnings implicit in the lawmaking worry may transcend the particularities of legal doctrine, and instead flow from the normative logic of law as such. A legal-interpretative methodology that performatively undercuts the whole reason we have law (i.e. say, to guide behavior) is incoherent and should therefore be rejected (or so one might argue). Well and good. Still, legal disagreement remains: does the ideal of legality ask for a commitment to legal conservatism, or for a more purposive commitment to parliamentarianism and rule of law? Unless one can convincingly show that defenders of Miller II are insincere or incompetent masters of the legal language, there is no clear meta-criterion to answer that question. However wholeheartedly judges and legal commentators may believe in the correctness of their own legal views, who is ultimately right in the case of disagreement remains a matter of ideology.⁷⁵

That brings us to the set of “interventionism worries” introduced in Section 4. If the dispute in Miller II apparently cannot be resolved on an abstract-theoretical level, could reflections on the internal dynamics of politics perhaps help us further? Unfortunately, that also remains to be doubted. Remember the two closely related sub-arguments against interventionism distinguished presented in Section 4. Judicial intervention would burden politics with too much regulation (the “legalization variety”) and derogate mechanisms that ascribe and identify political responsibility (the “dilution variety”). With both varieties, the arguments for judicial restraint become absurd when taken to their extremes, which suggests that an applied (politically charged) judgment is again required.

Take the legalization variety of the interventionism worry, which Section 4 introduced by reference to Carl Schmitt’s understanding of democratic politics. Games that are inherently governed by an adversarial logic, the argument was, should not be over-regulated, because that kills the game itself. Political antagonism, it indeed makes sense to say, should not be smothered by the legalistic logic of courtrooms, but rather turned into something productive by giving it proper leeway. But notice the internal limits to this argument. Adversarial relations, in whatever context (whether on the football pitch, in the marketplace, or in politics) can only be transmuted into something productive when properly regulated. Referees in the game of football should not interfere too much, but neither should they be afraid to call a foul when the situation demands it. Economic markets do well when not overly burdened by regulation, but that principle only works if a rigid competition law system is in place.⁷⁶ The same principle counts in politics: antagonism can only be made to work if we first establish a strong set of background rules. That, proponents of Miller II would argue, is what the Supreme Court is doing in its judgment: patrolling the outer boundaries of fair democratic procedure.

Now, to be fair, a radical Schmittian would reject this reconstruction of the democratic attitude by analogy with the market regulation.⁷⁷ For Schmitt, democratic politics is about the “elimination or eradication of heterogeneity,” and the collective’s power “to refuse or keep at bay something foreign and unequal.”⁷⁸ Taking his word for it, democrats might as well abolish all forms of constitutional procedure, and install a form of rule “through acclamation.”⁷⁹ Happily, however, this view went out of fashion: no constitutional commentator to the Miller II controversy questions the legitimacy of parliamentarianism as such. Instead, their disagreement is about what amount (and what form) of judicial intervention warrants the most sustainable and vivid form of parliamentary adversarial pluralism. Judges should intervene, but only when it serves the functioning of democratic politics as a whole. Try to apply that standard in abstraction from highly contextualized political judgment. It is impossible.

When we turn our attention to the dilution variety (the other argument underpinning anti-interventionism), quite the same point comes to the forefront. As is already evident from the Founding Fathers’ reflections on Montesquieu’s constitutional writings, there is a deep tension inherent to the separation of powers doctrine. On the one hand, there is a functional notion implicit to the doctrine: to keep governance sufficiently specialized and transparent, we should assign each state power its own set of tasks.⁸⁰ Diluting or intermixing those constitutional tasks jeopardizes both the efficacy and the accountability of our political institutions. But on the other hand, there is the notion of checks and balances as explicated in The Federalist Papers. An absolute separation of constitutional powers, the point is, is not a durable solution. Dividing constitutional tasks only works if the constitution also provides the tools to the several governmental branches to actively correct encroachments upon the division.⁸¹ Parliament’s power to exercise control over government is an example of one such mechanism. Independent judicial reflection on constitutional systematicity (as conducted by the Miller II Justices) is another.

The takeaway point here is that doctrines of separation of powers are (almost by definition) ambiguous or controversial in their application. Yes, it is true that Alexander Hamilton has warned us that “plurality in the executive. . . tends to conceal faults and destroy responsibility.”⁸² That should count as a warning: judges should be careful not to effectively become second executives by overloading the branch with too intensive supervision. But even if we take on board that consideration, the “rightness” of the argument against the Miller II judgment hardly follows from the abstract logic of the system of separation of powers. The separation of powers is, quite simply, not a doctrine of toleration of practices of usurpation of constitutional power. Rather, its very purpose is to prevent such usurpation from taking place. In the end, James Madison’s instruction remains leading: “giving in those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”⁸³ Whether the judicial intervention in Miller II serves that end properly may be open to disagreement, but it seems certain that that is what the Supreme Court thinks.

7. Political questions and judgments

That leaves only one way out for those who wish to keep politics out of the domain of adjudication: to try and distil an unambiguous principle from the non-justiciability worry. Remember the idea pressed by Miller II critics that Section 5 explicated. There is a distinction between political and judicial questions. Political questions can be identified by applying comparably straightforward distinctions (internal/external to politics, political-purposive/technical-legal, general policy/particular rights). Whenever a judicial question pops up, the court adjudicates its merits. Whenever a political question pops up, the court leaves its substantive issues unadjudicated.

As announced at the beginning of the previous section, I think there is little cause for optimism that non-justiciability norms will be the solution in depoliticizing adjudication. One could summarize the problem as follows:

7.1. Non-effectivity thesis

• P¹: in order to be effective in depoliticizing adjudication, non-justiciability judgments must build on standards that are themselves not an essential part of the political dispute they are supposed to mediate.

• P²: whenever a legal case gets to the center of political controversy, determining its justiciability requires adopting an analytical frame that is an essential part of the political dispute that is supposed to be mediated.

• C: non-justiciability doctrines are not effective in depoliticizing adjudication.

P¹ will not stir much controversy. It simply highlights in what space political question doctrines operate: in their capacity to abstract from substantive disagreements and refocus on more general considerations of judicial competence. No earth-shattering insight, then, that justiciability standards can only depoliticize adjudication if they truly succeed in abstracting from the crucial points of normative disagreement at stake. P², on the other hand, can be expected to encounter more resistance, and does the important work in supporting the non-effectivity thesis. It moves from the (empirical) observation that non-justiciability norms are often controversial to a general (normative) skepticism about the mediating potential of political question doctrines.

Though there is no a priori proof for the truth of P² (and, therefore, for the non-effectivity thesis in general), I think there is good reason to believe in its de facto persuasiveness. Theoretically, the justiciability criteria mentioned in Section 5 (reason externality, legal technicality, and rights particularity) could help depoliticize adjudication, but not in practice. The rest of this section explains why we can expect such a wide theory–practice gap. It does so by making three observations about the nature of normative judgments in politically sensitive moments. First, political judgments are practically immediate, and confer the kind of unmediated burden on decision makers that pushes the cogency of legal-theoretical reflections to the background. Second, judgments made in politicized moments are adversarially embedded, meaning that the practical considerations governing those moments tend to be produced ideologically. Third, and last, political judgments are hermeneutically situated, in the sense that they are rooted in certain politically colored expositions of the relevant facts and normative themes.

Let us start with discussing the first characteristic of judgments in politically charged moments: their practical immediacy. All normative concepts regulating society, we must realize, are ultimately products of collective human invention. They may historically have helped us to navigate our way politically, but that is no guarantee the same counts for the future (and the present moment). That introduces one core feature of the phenomenology of political judgment: its perceptual tendency to escape subsumption under general rules or normative standards. Of course, as a conceptual matter, we may register the normative distinctions we inherited, such as political/legal, moral/technical-legal, collective policy/individual rights. But, at the moment, it becomes time for action, the practical cogency or normative aptness of such distinctions is always open to radical reinterpretation and even total rejection.⁸⁴ The deep awareness that something has to be done in the face of the present (instead of theorized in the face of the eternal) drags the judge away from the comfort of theoretical “wisdoms.” Suppose, for example, that a judge believes the September 2019 prorogation of parliament showcased an “entirely new” and catastrophic disregard for the House of Commons.⁸⁵ How else to experience ex cathedra arguments about the non-justiciability of “political” questions in such an instance than as a distraction from the pressing normative issues at stake?⁸⁶

A second feature of political judgments even further weakens the potential of justiciability standards to depoliticize adjudication: their adversarial embeddedness. The point is that interpretive discourses surrounding a legal system’s central regulative concepts are not normatively neutrally oriented. Rather, they are pressure mechanisms: ways to curb the exercise of public power by imposing and making people internalize normative dispositions and patterns of thought.⁸⁷ Accordingly, their coherence should not be sought in their abstract truth-value, but in their mobilizing potential, and their effectiveness in giving shape to public ideological debate.⁸⁸ Here is the upshot: once normative ideologies are sufficiently effective in defining the terms of public discourse, finding a supra-partisan position to determine justiciability becomes impossible. The reason is, in short, that the field in such cases has become polarized to such a degree all normative positions are occupied by the interpretive frame of some political program. For instance, if the US Supreme Court declares itself incompetent to consider “partisan” gerrymandering issues,⁸⁹ the claim is that it does so in the name of political disengagement. But when a case is truly politicized, even judicial abstention counts as an expression of political support (here, by condoning a practice that discriminates against Democrats and non-whites).⁹⁰ The fact that a court claims not to support any party to the constitutional dispute does not necessarily make it so.

This observation about the deep relevance of socially embedded ascriptions of political meaning introduces a third characteristic of political judgment: its hermeneutical situatedness. Unfortunately, practical judgments about “political hot potatoes” like the issue in Miller II cannot be made from the God’s eye point of view. Instead, they will necessarily need to depart from a certain “reading of history”; a narrative that connects the dots and gives meaning to the normative issues at stake. Needless to say, any such reading will be highly selective in its exposition of relevant facts, the causal interconnection between those facts, and the major currents running through history. And although there are some boundaries to what can and what cannot pass for a plausible reading of history, there will always remain a virtually endless amount of resources to question the canon. (For instance, though everyone will agree that World War II redefined European history, how to interpret the subsequent rise of liberal capitalism in the West remains an open question.) As Hans-Georg Gadamer has taught us, there is no place outside history, and what reading of history one comes up with will highly depend on the practical purposes one needs it for.⁹¹

The lesson to be learned here adds to an observation made by George Letsas: when it comes to assessing justiciability issues, everything hinges on how one specifies the facts at stake.⁹² Especially when a case becomes politicized, there is usually no neutral way to do so. For example, the Miller II court liberally cites the Prime Minister’s written correspondence that shows him in a bad light, spelling mistakes included. Why, however, does it leave out crucial exculpatory facts (e.g. the fact that in 1948 Labour Prime Minister Clement Atlee also used the power to prorogue to force through parliamentary reforms)?⁹³ The Supreme Court justifies its intervention by writing that a “fundamental change” was due to take place on October 31, 2019,⁹⁴ but the actual issue there was not if Brexit, but how Brexit. One might then question the aptness of saying that Miller II is about Parliament’s say in Britain’s constitutional fate, if the principled “if Brexit” question has already been answered.⁹⁵ Besides, how credible is the Supreme Court’s appeal to parliamentary sovereignty anyway, now that common law courts since the 1990s have structurally set out to qualify this principle?⁹⁶

Taken together, the three applied problems that come with using justiciability norms to depoliticize adjudication highlight a paradox that is intrinsic to political question doctrines. Justiciability norms lose their efficacy at the very moment that they are most needed, that is, when the regulatory framework of law becomes deeply contested and politicized. Insisting that courts do not intervene may still be defended as the prudent constitutional choice in such moments, but it is a controversial one—constitutional-legally, and thereby politically. If, like Lord Sumption, you believe that the Prime Minister’s advice to prorogue Parliament for five weeks was an act of “constitutional vandalism,” things change.⁹⁷ The fact that judges in such cases feel forced to intervene may then still be “infinitely regrettable,” but in the end nothing more than the “natural result” of the circumstances.⁹⁸

8. Conclusion

This article argued that in the Miller II case, and by inference in politicized constitutional cases more generally, attempts to banish politics from court judgments are generally unsuccessful. It substantiated this point by first reconstructing the normative tension underlying Miller II (Sections 2–5), and then showing that this tension is not spurious, but (practically) irresolvable (Sections 6–7). The article touched on debates regarding the interpretation of legally embedded ideals of Parliamentarianism (Section 3), and reconstructed the notion of the autonomy of the political domain (Section 4). Specifically, it explicated the latter by highlighting warnings against overregulating politics (the “legalization variety”) and fragmenting constitutional responsibility (the “dilution variety”). Then, it discussed the option of preempting all first-order ideological debate by acknowledging limits to the justiciability of political issues (Section 5). As I demonstrate, all three worries (and the varieties in which they appear) are coherent lenses to criticize the Miller II judgment through.

As Section 6 demonstrated, concepts of law, democracy, and constitutionalism are too ambiguous in their meaning to allow for politically disengaged interpretation. However much we might like to avoid judicial lawgiving by staying close to positive-legal cues, the right way to give meaning to those cues remains a matter of integrative interpretation. Even when there is consensus about what count as sources of positive law, one cannot determine what conception of legality runs through those sources without making political value assumptions. Thus understood, the fact that legal actors may view interpretations they do not agree with to be self-evidently “wrong” is a product of their political standpoint—not the other way around. For similar reasons, concerns about overburdening politics with judicial supervision (“interventionism”) do not have practical bearing without grounding in a richer political narrative. Yes, both Schmittian antagonism and the American separation of powers tradition may bring to bear insights that are relevant to the Miller II case, but they are both normatively ambiguous. They can both be used to legitimate judicial intervention (i.e. protection of political procedure by judges) and to bar it (i.e. protection of political procedure from judges).

Section 7 went into the reasons why even justiciability doctrines that declare certain “political” issues unfit for judicial treatment are unlikely to depoliticize adjudication. All judgments about justiciability, the argument is, happen against the background of larger narratives about how judges are to stay away from getting involved with “ordinary politics.” But due to their practical immediacy, their adversarial embeddedness, and their hermeneutical situatedness, these judgments can be rarely made in an “apolitical” fashion. That sharply deteriorates (if not, practically annuls) the effectivity of justiciability doctrines in fighting the politicization of adjudication. In fact, a deeper understanding of the immediate, adversarial, and interpretive nature of political judgments does not only warrant a critical attitude towards the political question doctrine. It licenses a general suspicion towards anyone who claims to apply constitutional-legal standards in isolation from political ideology. Even if one can reformulate constitutional rules in such a way that they allow for technical application, that still does not necessarily mean adjudication is depoliticized. Where, after all, does the reformulated standard itself come from? The moment of its invocation, the partisan-adversarial arena in which that happens, and the richer hermeneutical narrative that underlies it—these factors are usually highly relevant.

All of this leads to a conclusion that is almost too tautological to spell out: that normative judgments in politically controversial cases such as Miller II are made from a politicized standpoint. Of course, political judgments made in courthouses can be expected to be more embedded in existing legal tradition than, say, those that one finds in the Prime Minister’s Cabinet Room. But the differences should not overshadow the normatively relevant and sociologically salient similarities. Alas, adjudication that is immune to political ideology does not exist. What we should look for is the next best thing: ways to channel the role politics plays within legal discourse, even if that channeling itself will happen among politicized lines. That, then, is how we should probably read the different contributions to the Miller II debate: as long-term visions about the future of the United Kingdom and the political institutions within it. Once we enter that broader conversation, however, it seems impossible to engage with the more fundamental questions about what the British democracy’s role in the twenty-first century is to be. What stance should it take towards global challenges surrounding, say, mass migration, climate change, income inequality, the resurgence of authoritarianism, and so forth? Only if we manage to formulate an answer, in broad strokes, to those fundamental questions, can we hope to seriously think about the role of courts within the picture. Constitutional theory is helpless without the greater narratives of political philosophy. That is not something we need to be embarrassed about. It is something we should embrace.

Special thanks go to Georgia Antonopoulou, Wibren van der Burg, Lonneke Poort, and Paul Yowell for comments to earlier versions of the manuscript. Errors remain mine.

Footnotes