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To what extent can the Judiciary enter the political arena?

To what extent can the Judiciary enter the political arena?

Published: 3 October 2019

I believe that whilst some critics will argue that the Court crossed the line into the political sphere, it did not do so. The Court did not concern itself with whether Brexit was a good/bad idea, it merely ensured the Prime Minister adhered to constitutional principles. If anything, the Court acted as an umpire in assessing whether there was a genuine reason for Parliament to be prorogued for five weeks. Ultimately, it found that there was not.

The recent decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) considered (amongst other things) the circumstances in which the judiciary can intervene in matters of a political nature.

By a unanimous majority of 11-0, the Court ruled that the Prime Minister’s advice to the Queen was both “unlawful and invalid”. The Judgment therefore raises the question on what limit can be set on prerogative powers and to what extent can Courts intervene with these.

On 28 August 2019, Parliament was prolonged for a period of five weeks. This, alleged Gina Miller, was to deliberately prevent further debate and discussion of Brexit related issues.

Can a Court intervene with political matters?

The High Court was quick to rule that the case was “inherently political in nature and there were no legal standards against which [the Court] could Judge [the Prime Minister’s] actions”. However, when the matter reached the Supreme Court, it was deemed to be of an exceptional constitutional nature - particularly given the UK’s planned exit from the European Union.

In reaching its decision, the Supreme Court noted that whilst Parliament was sovereign, Courts had historically been involved where a question of prerogative powers arises. As early as 1611 in the Case of Proclamations, the Court had ruled that “The King hath no prerogative but that which the law of the land allows him”. In other words, the Court is entitled to intervene where the limits of constitutional principles require consideration.

The Court also noted that in absence of intervention, there is a greater risk of an “unaccountable government”. Put simply, if there is no referee on the rules of the constitution (ie. the Courts), then there is a risk that Parliament could exploit its position without scrutiny. In many respects, it can be said that whilst the Court did intervene with the political sphere, it did so only to preserve fair play and preserve Parliamentary Sovereignty. Most would agree that considerable limits need to be placed on prerogative powers to prevent decisions made which are immune from scrutiny.

The lawfulness of the decision of prorogue Parliament

Following its decision that it could rule on the matter, the Court looked into the lawfulness of the Prime Minister’s decision. Whilst the Court accepted that the electorate had voted to leave the European Union, it stressed that the democratically elected House of Commons had a right to voice their views as to how this process would happen. In particular, there was a need for the Prime Minister to be ready to answer questions on the topic. He could not just prorogue Parliament with a view to avoiding scrutiny – this in itself was unconstitutional.


The Court’s overall finding was that the decision to prorogue Parliament was unlawful and had no legal effect. The conclusion being that no prorogation had indeed taken place at all. Parliament could therefore (and did) resume its meetings the following day.


The outcome shows that, whilst the electorate did vote to leave the European Union, the manner in which this was to be brought about could not escape scrutiny. To that end, the Court’s intervention was justified to ensure the constitutional rulebook was adhered to.

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