The Closing of the Common-Law Mind

brit judgeThe 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.


14 thoughts on “The Closing of the Common-Law Mind

  • Jim Kapetangiannis says:

    I get the “sovereignty of parliament”; I get the “sovereignty of the Crown; I don’t get the “sovereignty of strange, old, white men who dress up in long red robes and wear drag queen wigs” pretending to be cleverer than the “common man”. Who exactly do they think they are?

    And as for Parliament being the absolute and highest authority in the United Kingdom or any land for that matter, surely that is by “permission” of the people. Members of Parliament are voted in and accorded significant honour and standing in exchange for executing the majority will. This majority will is not necessarily expressed just at the time of voting and for matters know only at the time of voting. It can be expressed through a referendum at any time, particularly if the gravity of the matter referred to the peoples collective wisdom is such that it will have profound effects on the lives of the people.

    A Parliament that does not respect the “will of the people” leaves the people only two choices. The first and by far the most desired is to turf out the constituent members of that Parliament in the next election cycle; the second and the one which is best avoided if it can be (though historically it has been the course of last resort) is to take up arms and assert the “people’s sovereignty”.

    “Vox Populi Vox Dei” is the bedrock principle of a truly democratic society. It can be the only unchangeable principle. All other authorities like the Crown, the supposed “mother of Parliaments” and even the drag queen Judiciary are derived from the sovereignty of the people. If this is not so, then there is really no democracy.

    I fear that as the horrors of the twentieth century wars recede into history, western democracy looks set to be like Pericles’ democracy which went before it, just one small flash of brilliance in ages of almost utter darkness. The enemies of the people are no longer just at the gates, they are within the city walls.

  • ianl says:

    > ” … the three High Court judges, all of whom have significant ties to the European Court and judicial system …”

    Yes, which is why the direction of judicial decisions was easily anticipated. A perfect opportunity for judicial activism to combine cherry-picked black letter law with political self-help and then claim the high ground.

    Now that the Supreme Court has unsurprisingly decided that the UK Parliament must vote on Article 50, it is incumbent, if too obvious, to point out that politicians also have the opportunity to find tax-free sinecures within the EU for the last stage of career. No turkeys, they – in my view voting to leave the EU seems unlikely.

  • en passant says:

    Being of Scottish ancestry I am naturally of a pessimistically realist disposition. I can see the black cloud that surrounds every silver lining. The problem is, I am usually right.

    On the day after the positive BREXIT vote I predicted that there were seven ways that the democratic vote could be thwarted. There were more, but like the six failed attempts to thwart Trump and the lost cause of the Jacobite Rebellions that plagued Scotland for 60+ years and Ireland for 300 years, the losers never give up and will never accept that those lesser humanoids, the voting proles should have any right to express their wishes on how they should be governed. Voting (as in Oz) is just a formality to select which one of our ‘betters’ should tell us what is good for us.

    Here for reference are the seven deadly sins of the BREXIT democracy and why it must be stopped before it harms the power of the entrenched elites: (the political bunyip royalty of the useless and otherwise unemployable talking heads in Oz).

    1. The vote was illegitimate as only 52% of the 72% of eligible voters voted for BREXIT, this means only 38% actually voted for leaving. Specious and illogical, but it is a straw worth grasping. [JUST ASK THE CLINTON CRIME CARTEL]
    2. Inertia: lots of talk, but no action will drag out the exit for longer than a Turnbull waffle on agility, brevity and innovation. Years later exiting the EU will still be in ‘the negotiation stage’.
    3. Problems, endless problems and contradictions will be found that delay and reiterate Point 2 to the point of suffocating leaving. “Yes, Minister, it really is all too hard, but we are working on it day and night. Trust me.”
    4. The Referendum was ‘only advisory’ and is not binding on the government to implement it, so the government simply will not. [THIS IS WHAT IS HAPPENING WITH UNELECTED JUDGES THWARTING THE WILL OF THE PEOPLE’.
    5. The EU bureaucrats will impose various crippling embargoes and trade restrictions to demonstrate to these ignorant rebels that they erred and should sack their government and come back to the fold in return for grants (of returning some of their own UK money and an easing of restrictions)
    6. The UK traitors arrange a pseudo-exit and punish their own ignorant voters by agreeing to more onerous trade and travel punishments. That’ll show the proles where the real power lies.
    7. Scotland decides to exit the UK to stay in the EU (these chains are quite comfortable once you get used to them …) and causes chaos so that an exit plan becomes impossible to implement.

    So here we are, nearly eight months after the vote and little progress. Trump could solve the dilemma by agreeing to a trade deal. That would sink the EU as the Netherlands and maybe France would then follow suit.

    Austria, Sweden, Belgium and Germany should be allowed to descend into the cultural Hades their Leftoid politicians so desire and then their maggot-ridden carcasses should be closely observed as yet another example of why and how societies can choose to fail.

  • Lacebug says:

    Sorry for being TOTALLY off-topic, but PLEASE can we have a separate forum on Quadrant Online where we can discuss ideas and issues of the day that are not always related to Quadrant essays? For example, we could discuss Clementine Ford’s diatribe in today’s SMH.

    • ianl says:

      Such as a Weekend Unthreaded ?

      Ok, but who is Clementine Ford ?

      • Lacebug says:

        She is a Feminazi of the most extreme kind.

        • Jody says:

          Can you provide a link because SMH is behind a paywall for. Ford is arguably the most divisive and unpleasant member of the Australian society. Like so many who have gone to university from the working class, they are more shrill, more angry, more entitled than their middle class counterparts.

          • Lacebug says:

            The SMH rejected my comment: Clementine reminds me of a few of the humourless young women I taught at university last year. Nightmare. For the record, I wouldn’t want to go to a party with any of them, including Clementine. The problem is they tend to view EVERYTHING through a prism of sexism.

  • Lacebug says:

    Yes a Weekend Unplugged would be a great idea.

    • Warty says:

      Well, it seems you have almost created such a forum by default. You could make it more formal, by commencing your thread with a code word or phrase to indicate you are deliberately going off topic and not suffering from an early onset of dementia.

      • Lacebug says:

        Great idea Warty. BTW: Did you see the column in the SMH today by Islamic sympathiser Paul McGeough? I Tweeted him to ask whether he’ll be spending today in Punchbowl with all of his Islamic mates.

        • Warty says:

          I’m afraid Paul McGeough brings on uncontrolled retching every time I hear mention of his name. Quite frankly I wouldn’t care two dingo’s droppings if he morphed into a Wilson (volley ball) of Castaway fame. I can visualise him drifting away from the raft with a bearded luvvie crying after him: “Wilson! Wilson!”

      • Lacebug says:

        Codeword could be LACEY UNDERPANTS – my nickname at school.

  • padraic says:

    A timely article and a cautionary tale for other countries like Australia to be careful that what starts out as a “Trade Agreement” (e.g European Common Market ) does not end up as a loss of sovereignty or impact on domestic legislation or frustrate the domestic Legislature. We have seen that problem here to a small degree after signing the Trade Agreement with USA and how our legal system has changed dramatically with the US emphasis on commercialised litigation and the resultant need for “victims”. This has come about because of a requirement to make changes to our domestic “competition” legislation to facilitate trade. It’s bad enough having our democracy undermined by signing up to some UN Conventions but it is equally sad to see trade deals undermining our sovereignty.
    The article is also spot on about the Royal Prerogative. I first came across this concept when trying to understand the Australian Constitution, where it also plays a role. The Royal Prerogative was a by product of the “Divine Right of Kings” which conferred upon the King in feudal times an absolute power to run the country and to prevail over any common law and statute. He could have advisers but was under no compulsion to accept their advice. The Royal Prerogative has been a shifting paradigm ever since the Magna Carta. The Magna Carta did not deny the Royal Prerogative as such but sought a fairer exercise of it by spelling out how some aspects were to be exercised by the King. It was in effect, a legal document. This meant that the King now had to deal with not only the powerful land owners but also the legal profession which also meant he had to deal with both Parliament and the Judiciary, both potentially hostile. Prior to Coke’ accession to Chief Justice of the King’s Bench in the reign of James 1st the judges had generally shown themselves to support the prerogative. Coke however, considered that the prerogative was subject to the law of the land, a view which caused him to be relieved of his post by King James in 1616. When the prerogative question came up again, this time in the third Parliament of King Charles 1st in 1628 when Charles made a threatening speech as he opened Parliament, Coke advised the Commons as they were drafting the “Petition of Right” that “I know that prerogative is part of the law, but sovereign power is no parliamentary word. In my opinion it weakens Magna Carta, and all our statutes; for they are absolute, without any saving of sovereign power. …. Magna Carta is such a fellow that he will have no sovereign”. This struggle between the King, the Parliament and the legal profession over the Prerogative reached its apogee when the Solicitor –General , John Cooke, under Cromwell, conducted the court case that led to the execution of Charles 1st. At that stage the Royal Prerogative ceased to exist, bit it was later to be resurrected.
    After Cromwell’s death there was a lot of civil unrest and it was decided to bring back the Monarchy to calm things down, but on Parliament’s terms. Emissaries were sent to France to sound out Charles 2nd to do a deal. One of the sticking points raised by Charles was recognition by Parliament of the Royal Prerogative, an issue that had caused his father’s death. Both sides would not budge from their views on the Prerogative and it is my understanding that a compromise was reached so that Parliament would recognise the prerogative of the King provided he did not use it. The Prerogative issue flared up again after the death of Charles 2nd and his brother James 2nd sought to re-establish absolute powers to the King and this resulted in the “Glorious Revolution” in which James was replaced by William of Orange. Eighty years after this Revolution Blackstone spelt out in detail the King’s prerogative powers which were in effect part of the law, and neither outside it or above it and could be subject to decisions by the courts. Over subsequent centuries the Prerogative has changed so that in practice the vast prerogative powers outlined by Blackstone have long been exercised not by the will of the sovereign , but of responsible ministers of the Crown, who represent the will of the majority in the House of Commons (Tanswell-Langmead). One of these prerogative powers identified by Blackstone was that the King “had the sole power …. of contracting treaties and alliances…” .
    So it appears that if the prerogative is to be exercised by ministers of the crown when contracting treaties and alliances then the Prime Minister was entitled to give notice under Article 50. If, however, the judges are right and their decision is not “a specious piece of legal casuistry” (I agree with David on that apt description) then they have done everyone a service by exposing how the nation state is under threat.

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