At the outset of their judgment for the Supreme Court in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (a.k.a. Miller No. 2), Lady Hale and Lord Reed sought to reassure those who might be nervous about its implications: the case, they said, ‘arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”’. But the law is not supposed to work like that; once given, the reasons for judgment become part of the mass of legal materials of which jurists must make sense, and on which advocates and judges will rely in future cases.
One difficult aspect of Miller No. 2 of which commentators, the present author included, have sought to make sense is its relationship with the political constitution. While some accepted the Supreme Court’s position that the judgment gave effect to truly legal principles, others argued that it enforced political norms or constitutional conventions. I was, and remain, in the latter camp, arguing that the Supreme Court’s judgment ‘can be used by future litigants to demand and by courts to grant judicial enforcement of conventions’. (At 136)
How? Simply by framing the heretofore conventional rule as a legal limit on the scope the royal prerogative whose exercise the convention governs. That, I argued, is what the Supreme Court did in Miller No. 2, treating the political practice of short prorogations as a convention and transmuting it into a legal limit on the prerogative power to prorogue Parliament. Although some have suggested that the principle or convention the Supreme Court enforced was simply executive accountability writ large, this is far too broad and multifaceted a concept. As I explain in detail in the article linked to above, what the Supreme Court did was to draw on Sir John Major’s evidence to establish the precedents and normative considerations bearing on prorogations, and give the norm derived from this process the force of law.
I speculated that:
the most dramatic, yet also plausible, example of an application of the Miller No. 2 reasoning would be a declaration as to the rules governing the selection, and (in consequence, or even in the alternative) the identity, of a Prime Minister following a contested transition of power, because the relevant conventions … limit Her Majesty’s prerogative power of appointing the Prime Minister. (At 137-38)
Fordham J’s recent judgment in R (Tortoise Media) v Conservative Party [2023] EWHC 3088 (Admin) provides support for this guess. Tortoise Media is concerned with the amenability to review of a governing political party’s choice of leader — which, due to the operation of the conventions regulating government formation, is in effect the choice of a Prime Minister. One of the claimant’s arguments, as summarised by Fordham J, was that the leadership selection was akin to the advice to prorogue Parliament that was invalidated in Miller No. 2 ‘because the party is deciding the content of the reviewable and justiciable advice to the Sovereign’.
Now, I think that it is a mistake to speak of a leadership selection, or indeed of anything else that precedes the appointment of a Prime Minister, as ‘advice to the Sovereign’, or at least as the same sort of advice that was at issue in Miller No. 2. The appointment of the Prime Minister is a reserve power, not exercised on advice, but instead directly governed by a rule — a constitutional convention. But the Cabinet Manual is ambivalent about this, and this is ultimately only a pedantic quibble. What I would like to focus on here is what Fordham J says about the argument.
Fordham J is willing to assume ‘that Miller supports a scope for reviewability and justiciability in relation to advice to the Sovereign as to the appointment of a Prime Minister’. [46] This willingness might be in apparent contrast with the assumption of Lewis LJ in R (FDA) v Prime Minister [2021] EWHC 3279 (Admin) that ‘the appointment or dismissal of a minister, or the decision of the Prime Minister to retain a minister in office’ is non-justiciable because ‘[t]here are no judicial standards by which such purely political decisions can be judged’. [34] But there is no contradiction here: the King’s discretion in choosing a prime minister is circumscribed in ways a prime minister’s choice of minister is not, albeit that we would traditionally have understood it to be circumscribed by conventions and not legal rules or principles. More remarkable is the fact that Fordham J explicitly contemplates ‘an issue involving action beyond the scope and limit of the prerogative power, or even an illegality in the exercise of the prerogative power ’ [46; emphasis mine]—even though Miller No. 2 pointedly refrained from addressing the latter sort of argument.
Fordham J outlines several scenarios where that might happen, some suggested by the parties and one of his own devising: perhaps the selection of a future Prime Minister has been ‘corrupted by the influence of a foreign state’ (or, I am tempted to add, Francis Urquart’s heirs and successors); perhaps the would-be premier is not a member of the House of Commons; perhaps he or she is incapacitated. Fordham J accepts the submission that ‘a candidate for judicial intervention would need to be an appointed person incapable of satisfying the constitutional rationale of commanding confidence and support in the House of Commons’. [46] Unlikely, one hopes, but possible in principle.
I think that, at least until Miller No. 2, the view that, at least in some admittedly unlikely circumstances, the appointment of a Prime Minister would have been amenable to judicial review would have been a startling proposition. The constitutional orthodoxy, endorsed by the Supreme Court as recently as R (Miller) v Secretary of State for Exiting the European Union (a.k.a. Miller No. 1), was that the courts were strangers to conventions. They might take notice of these political rules, but not enforce them. But the device of transforming what Ivor Jennings, in his classic test for identifying conventions, described as the ‘reason for the rule’ which political actors in the relevant precedents followed and considered themselves bound by—or, in Fordham J’s words, ‘the constitutional rationale’ for it—into legal principles that limit the royal prerogative seems to have changed matters. If the approach suggested by Fordham J is followed, some of the key rules of the political constitution will have become legal rules.
Fordham J might demur. He endorses the ‘important caveat’ added by Kevin Brown, for the defendant, which is that, unlike in Miller No. 2, the appointment of a Prime Minister in breach of a convention could and presumably would trigger parliamentary accountability. As Fordham J sums it up, ‘[a]n inability to command that support [of the House of Commons] could therefore mean that a new mid-term Prime Minister does not in fact last long in office’. [47] Courts would not need to intervene, since the political process would sort things out. But there are two problems with this argument.
First, it is contingent on political events: what if, in fact, the House of Commons doesn’t deny confidence to a Prime Minister who is, say, not one of its members? Why, indeed, should we assume that it would do so? If the party that has a majority in the House chose a non-member for its leader, why would that party’s parliamentary wing suddenly change their minds?
Perhaps, as this blog’s editors have suggested to me, this would still amount to a sufficient opportunity for political accountability. But this brings me to the second and related difficulty with the ‘caveat’ accepted by Fordham J. UK courts have tended to be unmoved by the prospects of political accountability when these were advanced as reasons to prevent them from enforcing legal accountability. Many of the critics of Miller No. 2 did in fact argue that there could have been political accountability there, and Parliament simply chose not to impose any. And even if the argument was not convincing in that case, surely there could have been political accountability in the circumstances of R v Secretary of State for the Home Department, ex p Fire Brigades Union, [1995] 2 AC 513. As Lord Mustill pointed out, Parliament could have held the Home Secretary to account for his refusal to bring legislation into force—if it considered that this was problematic. Yet that possibility did not deter a majority of the House of Lords from holding that this potential for political accountability was not enough, and judicial intervention was warranted. So the ‘caveat’ is not, in my view, nearly as important as Fordham J thinks.
The hypothetical scenarios in which judicial review of the appointment of a Prime Minister could be sought are still, I hope, quite fanciful. But it now seems to be increasingly plausible, if not already conventional wisdom that, should the fanciful come to pass, it could in fact be judicially reviewable. After Miller No. 2 was decided, I suggested that it ‘call[ed] into question the continued vitality of a political constitution’, by making the conventions that were its beating heart subject to judicial enforcement. Tortoise Media takes another step towards a constitutional arrangement in which, as Antonin Scalia might have put it, the political constitution is dead, dead, dead.
I also suggested that, insofar as Miller No. 2 both was a product of and further contributed to the uncertainty of the rules of the United Kingdom’s ‘unwritten’ constitution, ‘writing down’ or, more accurately, codifying and entrenching this constitution would be a solution, though no doubt an imperfect one, to this problem. One objection to any such proposal is, of course, that it would undermine the political constitution, in particular by converting conventions into justiciable rules of law. But Fordham J’s judgment in Tortoise Media suggests that this has already happened. And if we are to have a legal and justiciable constitution in any case, working out its rules in advance, in a process of ‘reflection and choice’, in Hamilton’s words, seems far preferable to courts figuring them out on the fly in the midst of both legal and political controversy.
Leonid Sirota, Associate Professor in Law at the University of Reading
(Suggested citation: L. Sirota, ‘Tortoise Media: Another Step towards the Political Constitution’s Demise?’, U.K. Const. L. Blog (14th December 2023) (available at https://ukconstitutionallaw.org/))
