“Constitutional coup” or a Close Call for the Constitution?

Megan Tomlinson - Writer

Just eight minutes before the historic judgment of the Supreme Court on 24th September 2019, a prominent and engaging EU lawyer addressed a room of aspiring lawyers in their Postgraduate induction week. In a fashion not dissimilar from a ‘hype man’, he drummed into each of us the significance of the judgment that could be delivered that morning.

The following talk happened to be scheduled with the Junior Counsel for Gina Miller on his research into the ‘Wives of ISIS’. Yet, as Dr Tom Hickman QC rushed into the room straight out of the Supreme Court, and the news articles on the decision popped up on every smartphone in the room, a cheer erupted from the next generation of lawyers: a success for the Constitution and for Parliamentary Sovereignty! It was safe to say that the topic of ‘Wives of ISIS’ was postponed for another time.

The second Supreme Court Miller judgment elicited a range of reactions in the political sphere, with Jacob Rees-Mogg MP allegedly terming the decision a “constitutional coup” due to this involvement of the judiciary in a largely political matter. Yet, in the legal sphere, it proved to be a reassertion of the importance of the judiciary in policing Parliamentary Sovereignty.

What happened in this case?

This judgment was the culmination of two joint appeals: one from the High Court of England and Wales (otherwise known as Miller 2.0), and one from the Inner House of the Court of Session in Scotland. In the context of the impending exit of the UK from the European Union on 31st October, the Prime Minister gave Her Majesty the Queen advice on the prorogation of Parliament. At the end of August, Boris Johnson advised the Queen that Parliament should be prorogued from 9th September for five weeks. Two cases were brought surrounding this decision, one prior to it being made and the other consequently, to question its lawfulness, arguing that this decision had been taken to avoid further Parliamentary debate surrounding Brexit prior to exit day.

The Court first addresses the justiciability of the question, which had been heavily discussed due to the huge overlap of this question with the political sphere. Yet, the Supreme Court concludes simply that, “the courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries”, citing an example back in 1611. This signals a clear confirmation that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.

The judgment relies on Parliamentary sovereignty; that this key constitutional principle would be undermined if the executive could use its prerogative to prevent Parliament for exercising its power to make laws. This is combined with Parliamentary accountability, meaning that Boris Johnson and his Cabinet are responsible to Parliament as a key part of our democracy. While the Prime Minister retains a power to prorogue, it is limited by constitutional principles.

In the judgment, the Supreme Court laid down a powerful principle: a decision to prorogue will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. 

The Supreme Court clearly avoids excessive interference by stating that if this is the effect, the court need not consider the Prime Minister’s motive. Instead, it came to its decision by identifying the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions, without reasonable justification. In the exceptional circumstances of exit day, this prorogation would have an extreme effect on our democracy without any attempt at justification.

To conclude its judgment, the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect, and Parliament had not been prorogued.


The ball was returned to Parliament’s court, and the Lord Speaker declared that Parliament would sit again the following day, 25th September. The country waited with bated breath to find out if Boris would resign.

The House of Commons erupted, with Jacob Rees-Mogg allegedly telling an emergency Cabinet call that the verdict was a “constitutional coup” and that some elements of the judgment were “factually inaccurate”. Conversely, Jeremy Corbyn called for an apology from the Prime Minister to both the Queen and the British people for this unlawful suspension.

Despite having maintained that the Government acted in good faith and that the decision would be legal, Attorney General Geoffrey Cox slammed the accusation of a “constitutional coup”, termed the Parliament a “disgrace” and accused the House of being too cowardly to call a vote of no confidence and to face the electorate. It remains unclear whether the Attorney General will release his legal advice to the Government.

Yet, while a ground-breaking case in Constitutional law, this has raised questions all over the board; from the tabling of a debate on democratic principles and the rights of the electorate, to a call for a review on the limits of abusive and inflammatory language in response to the word ‘traitor’ being thrown around.

Importantly, Boris criticised the decision as “wrong to pronounce on a political question at a time of great national controversy”. By the end of the day, Boris Johnson had walked out of the chamber.


This case is ground-breaking through its assertion of continued judicial patrol on the Constitution. It asserts that the courts can identify constitutional limits of Governmental power, and that they will enforce these.

Dr Tom Hickman QC, Junior Counsel for both Gina Miller cases, noted their exceptionality as the only two cases to ever have been decided by a panel of 11 justices, which is  the maximum number of serving justices who are permitted to sit.

He highlights that the court, in this case, steps into an area with no previous authority. This has only ever happened on one other occasion in the rest of the world, in Sri Lanka where it was reliant on a written constitution.

Having the privilege to hear from the Junior Counsel, just moments after the judgment within the introductory programme of University College London, Tom Hickman QC made five observations.

Firstly, that the unanimous decision of the maximum number of justices able to sit was significant. Despite certain judges seeming reluctant to agree with Miller’s argument, the Court concluded with unanimity to send a clear message. Lord Pannick made the case for why the English and Welsh courts had been incorrect to rule the Prime Minister’s decision to prorogue parliament as lawful. However, justices Lord Carnwath and Lord Reed interrupted and seemed sceptical of the argument, and were thought to be likely to side with the Government. The argument of Lord Keen on behalf of the Government was criticised as weak and confused. However, ultimately Lady Hale pulled the judges together to make this important statement.

Secondly, it can be noted that the judgment was delivered in a manner slightly out of the ordinary from two Justices. Delivering the judgment from both Lady Hale, the current President of the Supreme Court, and Lord Reed, who will take the mantel following Hale’s retirement, demonstrated a stability and solidarity of the Supreme Court despite the upcoming change.

Thirdly, the televised nature of the Supreme Court judgments enables the public to see who make these decisions, promoting transparency and trust despite our lack of a written constitution.

Fourthly, it is significant that the Court was careful to avoid any discussion of motives to distinguish the ideas of prerogative powers and the exercise of Parliamentary sovereignty. The Court clearly avoids seeming too political, both in its absence of discussion of the Prime Minister’s motives and of the Queen.

Finally, the Junior Counsel noted that the remedy clearly avoids putting the ball back into the Government’s court. It allows Parliament to continue without the involvement of the Government.

Therefore, what was in fact a close call for the Constitution has resulted in a reinforcement of the role of the judiciary in Parliamentary Sovereignty. 


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