The constitutional soap opera that is Brexit took on an interesting new plot line in November when the Queen’s bench division of the High Court for Justice heard the case of R Miller v The Secretary of State for Exiting the European Union. The panel of three judges found that the government did “not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty of European Union for the United Kingdom to withdraw from the European Union”.
The political and media reaction was predictable. The Independent described the decision as a “momentous defeat” for the May government. The Guardian thought it the most “encouraging day” for Remainers since the vote on June 23. Champagne socialist MP for the super-rich ghetto of Hampstead, Tulip Siddiq, tweeted that the decision was a vindication of “parliament’s sovereignty”, whilst Liberal Democrat Nick Clegg promised that parliament would amend “any legislation” before triggering Article 50. By contrast, the Sun wondered, “Who do EU think you are?” and the Daily Mail disparaged “gloating Europhiles” who hailed Theresa May’s “humiliation”, and condemned the “out of touch judges” as “enemies of the people”.
The decision by the three High Court judges, all of whom have significant ties to the European Court and judicial system, has added a surreal new act to the evolving political drama. It also creates an unanticipated impediment to Theresa May’s announcement, at the Conservative conference in October, of “a quiet revolution” that would make the United Kingdom a “sovereign and independent” country once again. Australians, of course, need no such revolution as they already enjoy the sovereignty and constitutional liberty bequeathed to them by what the nineteenth-century constitutional authority A.V. Dicey termed the “imperial mother of parliaments”.
What was the ground for the judges’ dramatic decision, which they asserted dealt “only with a pure question of law”, and does it make legal or constitutional sense? Interestingly, in rejecting the prerogative power of the Crown, the judges reaffirmed Dicey’s view that only parliament has “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament”.
In order to establish the principle of parliamentary sovereignty, both Dicey and the High Court judges referred to the history of English common law and the great constitutional debates of the seventeenth century. In particular, alongside Dicey the judges cited the great oracle of the common law, Sir Edward Coke, who in his legal report on The Case of Proclamations (1610), ruled that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”, because “the King hath no prerogative, but that which the law of the land allows him”. This position was confirmed in the first two parts of section 1 of the Bill of Rights (1688), which stated “that the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall”.
This all sounds like a splendid reassertion of the sovereignty of parliament against the unaccountable and despotic use of the executive power. In the common-law mind of the judges it would appear that they are replaying the long struggle for the sovereignty of parliament that runs from Magna Carta through the “absolutism” of Charles I and the trauma of the English Civil War to the Glorious Revolution of 1688.
The judges, it seems, rather than ignoring the democratic wishes of the people expressed in a referendum, believe they are reaffirming basic liberties and “fundamental constitutional law” against an over-mighty sovereign. In this view, Theresa May is the new Charles I and David Davies the new Strafford using the prerogative power to impose a policy of absolutist Brexit “thorough”, contrary to common law and the sovereignty of parliament. But is this in fact the case and what exactly is the prerogative?
One of the most important constitutional authorities (not mentioned by the judges), William Blackstone, significantly, dedicated a chapter of his Commentaries on the Laws of England to the prerogative power. The prerogative is the “discretionary power of acting for the public good, where the positive laws are silent”. Blackstone focused on states of exception that legitimated the suspension of habeas corpus or the imposition of martial law. In this context parliament had fixed “the limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should either mistake or legally exceed them without the consent of the people”. This aspect of the prerogative applied therefore to emergencies like revolution, invasion or civil war and required “parting with liberty for a while in order to preserve it forever”. Following Locke’s Two Treatises, Blackstone commented that it further consisted in:
the discretionary power of acting for the public good, where the positive laws are silent … Thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.
More particularly, “with regard to foreign concerns, the king is the delegate or representative of his people”. This was because:
it is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels.
From this perspective, the Crown “being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone”. These proclamations, moreover, have, according to Blackstone’s interpretation of Coke’s Reports (but not in the view of the High Court judges) “a binding force, when (as Sir Edward Coke observes), they are grounded upon and enforce the laws of the realm”.
As Dicey subsequently observes, this power transferred over time from the king into:
the hands of a committee called the Cabinet. If there be any one person in whose single hand the power of the State is placed, that one person is not the King but the chairman of the committee, known as the Prime Minister.
In other words, the prerogative power resides with the prime minister, who has the constitutional power to make and abrogate treaties. In fact, this was the basis of the Attorney-General’s not-very-well-argued case in the High Court in November.
The judges, however, rejected this understanding of the prerogative, asserting that “the European Communities Act of 1972 and other statutes” meant that EU law had become domestic law. Thus, the Crown has no “prerogative power to give notice under Article 50” to withdraw from the EU, since that would offend against “the constitutional principle … allowing the Crown to alter domestic law by exercise of its prerogative powers and to deprive them of their legal rights under that law”.
The judges further argued that “for so long as EU law is accepted and applied by the national courts of a Member State, it operates as a form of law which is in that sense superior to all domestic law”. They even contended that “the removal of the ability to seek authoritative rulings of the Court of Justice of the European Union regarding the scope and interpretation of such rights would itself amount to a material change in the domestic law of the United Kingdom”.
“The principle that the Crown cannot use its prerogative powers to alter domestic law” is thus somewhat perversely deployed to assert the authority of EU law over parliamentary sovereignty. In other words, this specious piece of legal casuistry draws selectively on Coke and Dicey and ignores Blackstone in order to assert that constitutional precedents to protect the people’s liberty are manipulated to maintain the unelected authority of the European Union.
The judges compound their increasingly bizarre judgment by asserting that as “the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body”, it is for “Parliament, not the executive, to repeal legislation”. This leads “to the conclusion that a referendum on any topic can only be advisory for the lawmakers”, despite the fact that when he proposed the bill on the referendum in 2015, Phillip Hammond stated that “the decision about our membership should be taken by the British people, not by parliamentarians in this chamber”. Moreover, the judges’ favourite constitutional authority, Dicey, agreed. A referendum, Dicey argued, is a democratic “appeal to the people”. It is also “conservative since it ensures the maintenance of any law or institution which the majority of the electors effectively wish to preserve”.
The judges and the Remainers also overlook Dicey’s telling conclusion:
Nor can any one who studies the present condition of English society seriously believe that, under any system whatever, an institution deliberately condemned by the voice of the people can for a long time be kept in existence. The referendum is, in short, merely the clear recognition in its negative form of that sovereignty of the nation of which under a system of popular government every leading statesman admits the existence.
Melodrama aside, the ruling on the prerogative power seemed either oddly quaint or a misreading of the actual political and constitutional context.
It is precisely because the UK has given away its prerogative to Brussels that the judicial decision appears a mixture of the arbitrary and the absurd. By a peculiar irony, of which the judges seem blissfully ignorant, diehard Remainers who wish to dissolve the sovereignty of parliament through ever closer European union brought the case that parliamentary sovereignty cannot be overridden. This seems illiberal, antidemocratic and profoundly hypocritical.
Associate Professor David Martin Jones is Reader in Political Science at the University of Queensland. His latest book is The Political Impossibility of Modern Counterinsurgency: Strategic Problems, Puzzles, and Paradoxes (2015, with M.L.R. Smith). He reviewed Joao Carlos Espada’s The Anglo-American Tradition of Liberty in the November issue.