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Thomas Poole: Losing our Religion? Public Law and Brexit
Prerogative is the enemy of the people. This has been settled as matter of law for a very long time. The constitutional settlement of 1688 made a decision for responsible and representative government. We have had no constitutional moment of similar magnitude since. All constitutional changes – some very significant – have taken place within that foundational structure. The Bill of Rights treats prerogative as the antithesis of good government. Its primary target is a range of extra-legal powers hitherto asserted by the King, pride of place being given to the power to dispense with laws and the power to suspend Acts of Parliament.
Prerogatives, though, are a somewhat different matter. The constitution recognizes a bundle of prerogative powers – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters (for the range of prerogatives that existed on the eve of the Glorious Revolution see Sir Matthew Hale, The Prerogatives of the King (Selden Society, 1976)). The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions  AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.
The 1688 settlement limited the number of prerogative powers (or confirmed the non-existence of some that had previously been claimed). It firmly established that the prerogative was subject to law (on the debates on this question earlier in the century see Glenn Burgess, The Politics of the Ancient Constitution (Macmillan, 1992)). In so doing it scotched the medieval idea of an undefined residue of power, inherent to the notion of kingship, which the king might use for the public good (Entick v Carrington (1765) 19 Howell’s State Trials 1029). Prerogatives owe their legal existence now to an implicit licence from a sovereign Parliament, a licence that can be revoked in part or in whole at any point. They are the ‘residue’ of royal authority, in Dicey’s sense (A.V. Dicey, The Law of the Constitution (Oxford, 2013), 188), not just because they are what was left over historically but also in the more important sense that they exist on sufferance from a sovereign Parliament.
1688 also denied the idea of constituent authority – that authentic agency is vested directly in the People to create and destroy a constitution – which some radicals had been pressing for the best part of five decades (e.g. John Lilburne, William Walwyn, Thomas Prince, Richard Overton, An Agreement of the Free People of England (1 May, 1649); Algernon Sydney, Discourses Concerning Government (Liberty Press, 1990); John Locke, Second Treatise of Government ). This decision in favour of a parliamentary mode of responsible and representative government as opposed to a constitutional democracy grounded in ‘the People’ became a distinguishing mark of British constitutionalism (Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford, 2008)). As Tocqueville was to observe, framing British experience against the rise of modern (American-style) constitutionalism, ‘In England, the constitution may change continually, or rather it does not in reality exist; the Parliament is at once a legislature and constituent assembly’ (Alexis de Tocqueville, Democracy in America (Barnes & Noble, 2003), 81).
These statements are axiomatic: basic and uncontroversial constitutional principles. A High Court ruling that government cannot use prerogative to override statutory rights should be unremarkable (R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin)). Yet the reaction of some public lawyers, including the scholars examined in this essay, is surprise and incredulity. Their response has been to reach for better particulars – more precedents parsed more finely – while at the same time casting doubt on central aspects of the constitution. Proposing new doctrines and carve-outs in a sometimes vertiginous way, one wonders whether some public lawyers are reacting too fast to events that threaten to overwhelm them. Some seem on the verge of losing faith in their own enterprise. This at a time when that enterprise is becoming increasingly important: the project of subjecting public power to law – which means pre-eminently the subordination of open-ended discretionary power vested in the executive to (as Locke called it) settled, standing law.
I will examine some of the arguments that trade on the somewhat exceptional nature of events later. These arguments are misguided, at least in as much as they are meant to be adopted by the Supreme Court. But I focus first on another issue. The Brexit scenario is juridically fascinating in part because it raises the relationship between internal and external, domestic and international, so directly as a constitutional law matter. That relationship has become both more important and more complicated. But the outward-facing parts of the constitution in general and the foreign relations power in particular often represent something of a blind-spot.
Law and Prerogatives
The constitutional principles surrounding prerogative translate into a number of legal rules. These relate to, and serve to reinforce, the constitutional pre-eminence of legislation and include the following.
(1) A statute cannot be altered, dispensed with, suspended or repealed by prerogative (Blackstone, Commentaries, Book 1, Ch. 2, 178; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2)  UKHL 61 at  (Lord Hoffmann): ‘since the 17th century the prerogative has not empowered the Crown to change English common law or statute law.’).
(2) New prerogatives cannot be created. Those that exist are only available for a case not covered by statute (Burmah Oil Company (Burma Trading) Limited v Lord Advocate  AC 75).
(3) When a prerogative power has been placed under Parliamentary control, and directly regulated by statute, the executive no longer derives its authority from prerogative but from Parliament (Attorney General v De Keyser’s Royal Hotel Ltd  AC 508).
(4) A prerogative cannot be exercised in a way that would frustrate the will of Parliament as expressed in a statute (R v Secretary of State for the Home Department, ex p Fire Brigades Union  2 AC 513; Laker Airways Ltd v Department of Trade  1 QB 643. For close analysis on this point see Robert Craig, ‘Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum’ (2016) 79 Modern Law Review 1041).
(5) Treaty obligations do not take effect as part of the law of the land unless given effect to by statute (J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418 (HL)). The Crown is thus disabled from using its treaty-making powers as a device for legislating without the consent of Parliament (Higgs v Minister of National Security  2 AC 228, 241 (Lord Hoffmann); R (Wheeler) v Office of the Prime Minister  EWHC 1409, ).
These rules about prerogative and statute are rules about the institutional allocation of public power. They go to jurisdiction or competence and do not rely on judicial assessments of reasonableness, legitimate expectations or the like. They do not operate on a ‘sliding scale’ but exhibit the all-or-nothing quality of rules (Ronald Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14, 25). Deference does not feature. Other rules (or rather principles) relating to the lawfulness of the exercise of a prerogative operate on a somewhat different logic. Due to the policy sensitive context in which some prerogatives operate, the courts sometimes show deference when applying these principles (e.g. Blackburn v Attorney General  1 WLR 103; Council of Civil Service Unions v Minister for the CivilService  1 AC 374). The Article 50 case, however, relates to the rules about competence and not these principles of lawful exercise.
David Feldman questions the validity of some of these rules in an analysis of the High Court decision in Miller. He argues that authority exists for the proposition that the ‘prerogative in general’ can be exercised validly ‘to affect people’s legal rights’. He cites three main cases as authority. Of the first two – De Keyser and Burmah Oil – the first concerns the requisition of a London hotel in World War I, the second relates to the destruction of property as part of military action overseas. The claim that these cases are authority for the Article 50 case is problematic for the simple reason that neither case concerns the treaty-making prerogative at issue in Miller. They invoke the defence prerogative: that is, the power to do ‘those things in an emergency which are necessary for the conduct of war’ (Burmah Oil  (Lord Reid)). But there is a distinction, pivotal to the very idea of constitutional order, which Feldman ignores – the distinction between war and peace. Some exceptions are possible in wartime that would be normally unthinkable. Even within war, however, it is hardly a situation of limitless executive discretion so far as the law is concerned (the standard practice is to legislate – and has been for a long time). Act of state is no defence to acts committed against a British subject (or for that matter a non-enemy alien) on British territory (Nissan v Attorney General  AC 179).
The first two cases are not authority for Feldman’s proposition. This leaves his last case, Bancoult (No.2), with much to do. The Law Lords held in that case that the decision not to repatriate former inhabitants of the Chagos Islands, held by the UK as an overseas territory, was not unlawful. The case concerned the royal prerogative to legislate by Order in Council, the formal source of the Crown’s ‘legislative and constituent powers’ in the imperial context (Halsbury’s Laws of England (4th ed., 2003 reissue), vol. 6, para 823). This colonial prerogative was a natural offshoot of the foreign affairs and war prerogatives. Its presence in 21st century litigation was, Lord Bingham observed, an ‘anachronistic survival’ (R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No.2)  UKHL 61, ).
The judgment contains two parts, only the second of which was controversial (see the recent (unsuccessful) attempt to overturn that decision: R (Bancoult (No.2)) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 35,  (Lord Mance);  (Lord Clarke);  (Lady Hale)). First, the Law Lords agreed that prerogative legislation did not have the same constitutional status as an Act of Parliament and, unlike the latter, was subject to normal public law principles. ‘I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.’ (Bancoult (No.2)  (Lord Hoffmann)). This part of the judgment fits the long-term project of subjugating prerogative to legal control. Second, the majority of the court decided that the power the Crown had granted itself via Order in Council included the power to exclude the entire population from the territory and had not been exercised unlawfully.
Feldman seeks to rely on this second element of Bancoult (No.2). But there are reasons to doubt that he can. It was not in any event a case concerning the relationship between statute and prerogative because there was no statute in play. But more importantly, it is clear that the principles that animate it only apply in imperial law. It is case sequestered within ‘the conceptually distinct field of colonial law, the post-imperial long tail’ (Campbell McLachlan, Foreign Relations Law (Cambridge, 2014), 21) of which continues to raise difficult questions for our courts (e.g. Keyu v Secretary of State for Foreign & Commonwealth Affairs  UKSC 15). Quoting Blackstone to the effect that ‘no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will’, Lord Hoffmann said: ‘That remains the law of England today. The Crown has no authority to transport anyone beyond the seas except by statutory authority. At common law, any subject of the Crown has the right to enter and remain in the United Kingdom whenever and for as long as he please … The Crown cannot remove this right by an exercise of the prerogative.’ (see also Pham v Secretary of State for the Home Department  UKSC 19). (The minority judges of course would have gone further, arguing that even the colonial prerogative did not contain the relevant power – a point powerfully made by Lord Mance at . See also Lord Bingham at .) Bancoult (No.2) cannot support the claim that the prerogative can validly be exercised to affect the rights of British subjects. If anything, it is authority for precisely the opposite (this mirrors the argument made more fully by Gavin Phillipson on this blog).
None of the cases Feldman cites justify his conclusion: ‘the claim that the prerogative cannot be used to deprive people of rights, either absolutely or conditionally, is untenable as a matter of law.’ There is nothing in them that qualifies Dicey’s proposition, itself an elaboration of the Bill of Rights, that prerogative provides no legal capacity to suspend or override the ordinary law of the land, otherwise than in the exercise of the Crown’s right to use necessary force for the maintenance of peace or for repelling invasion (Law of the Constitution, 362-3).
Feldman’s claim is troublingly over-broad. Surely he does not want to the court to establish a precedent that prerogative can validly remove both statutory and fundamental common law rights – even in the domestic sphere and absent a situation of war or public emergency? His proposition that prerogative is a valid source for removing statutory rights is not just an impossible reading of the cases. It amounts to a repudiation of one of the constitution’s most basic elements. Blackstone, a ‘prerogative lawyer’ to Whig opponents (Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008), 246), could hardly be clearer. ‘An act of parliament’, he wrote, ‘cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation.’ He continued, ‘the suspending or dispensing with laws by regal [i.e. prerogative] authority, without consent of parliament, is illegal.’ (Commentaries Book I, Chapter 2, VI).
Statute and ‘Statute’
But what of those rights? Some suggest that we don’t really have rights in the relevant sense in play. The British constitution has generally been more comfortable with statutory rights, although common law rights are also recognized. On the face of it, then, there should be no issue here, as we have a whole roster of statutes – normal Acts of Parliament – from the European Communities Act 1972 onwards that grant British subjects in particular a diverse range of rights (the High Court in Miller broke these down into three categories: -).
But some statutes, we are told, may be more equal than others. John Finnis and Mark Elliott argue that the rights derived from these statutes are not rights in the full sense recognized by the constitution since their real authority derives from elsewhere, in an international treaty. These rights, Finnis explains, ‘are non-statutory in the precise sense that Parliament has not enacted them, and in many, most or all cases has given them efficacy contingently on their coming into effect and remaining in effect “from time to time” as treaty-based UK rights.’ Or in Elliott’s version, the creation of EU rights is a matter of EU law which the relevant UK statutes ‘simply affords access to and regulates the exercise of such rights at the domestic level.’ Such statutes he continues provide ‘“channels” so as to enable international law to have certain effects in domestic law and “filters” that condition and limit the extent of those effects.’ It follows, Finnis and Elliott argue, that the rights that arise under the operation of these statutes are free from usual constraints on prerogative and can be eliminated by the exercise of the foreign relations prerogative.
Authority for this position is scant. Elliott does not rely on precedent in his presentation of the argument. Finnis initially thought he had found a ‘clear and uncontroversial parallel’ with Double Tax Agreements (DTAs). But Kieron Beal QC revealed the analogy to be flawed in that (a) the Orders in Council in the DTA context are made and amended under statutory authority – and so not under prerogative – and (b) their operation corresponds in all relevant particulars to the normal rules of our dualist constitution. In his words,
‘[t]he withdrawal from the DTA does not automatically bring to an end the rights conferred by the Order, since the Order itself has independent legal validity … The Crown does not use the Royal Prerogative power to make or withdraw from international treaties to remove the right to double-taxation relief. It uses the set of statutory powers that conferred the right to make the original Order in Council in the first place.’
The core of Finnis and Elliott’s argument rests on a distinction between statutes and the source of the obligations to which they give effect. The distinction is of general application. It cannot just apply to statutes that contain an ‘from time to time’ clause or equivalent (e.g. ECA s.2(1)) as Finnis and Elliott include other statutes that give effect to EU law in the category (e.g. European Parliamentary Elections Act 2002). And it cannot just apply to statutes that give effect to EU law since the same authors also include statutes that give effect to treaty-derived obligations from different external sources (e.g. DTAs). The relevant proposition to be tested is this – statutes that give effect to obligations sourced externally from an international treaty are conduits or channels for the obligations that enter our legal order rather than being the true authors of those rights, and for that reason these statutes are not subject to all the normal rules that govern the relationship between prerogative and statute.
The key word here is ‘sourced’. But the way it is used in the argument obscures the central juridical question. To reveal the confusion we need to distinguish between two more analytically precise terms: derivation and authority. By derivation, I mean the point of origin of a norm or obligation. (‘Source’ in the descriptive or analytical sense.) By authority, I mean the act by whose warrant or say-so the norm or obligation is binding. (‘Source’ in the legal and normative sense.) To say that a statute giving effect to EU law (or an international treaty) in UK law is derived from a source external to statute is of course true. (It is also a tautology.) But that statement leaves untouched the central legal question, which is whether and to what extent such a statute is the authority for the obligations that pertain in UK law by virtue of it giving effect to the externally-sourced obligations. The descriptive observation cannot determine this point. It is a normative question the answer to which can only be found in constitutional principle.
The answer the constitution gives to that question position need not be black and white. It is possible to think of the relationship between internal norm and external source in terms of dual authorization – so that a treaty-derived statute may be said to be authorized both by the domestic constitution (parliamentary sovereignty) and the relevant body of international law. I prefer this view, and consider that it better reflects contemporary juridical realities (Thomas Poole, ‘The Constitution and Foreign Affairs’ (2016) 69 Current Legal Problems (available on advance access)). Others, including Finnis in a different context, take a more rigidly dualist line. Finnis argues in that context that international law is in such a crude and defective state that it is hard to treat it as independently authoritative. But that dispute does not matter here. The only answer that our constitution can give to the question at issue in the argument run by Finnis and Elliott is that the external norm is only authoritative for the UK legal order because it has been specified as such by statute. The only difference would be that whereas the strong dualist would say that the external norm was authoritative in the domestic order solely because of the statute the softer dualist would say that Parliament was the principal but not the sole author of the domestic norm.
It is worth spelling out why this is so. To say that the UK constitution is dualist is just another way of saying that its central structuring principle is parliamentary sovereignty. Dualism implicates and relates to the external dimensions of parliamentary sovereignty as opposed to the more normal (for public lawyers) internal specification. Just as parliamentary sovereignty hovers over just about any constitutional rule or principle one can mention in the internal context so too, under the guise of dualism, does it consistently structure practice in respect of the introduction of obligations incurred internationally into domestic law (For an insight into practice, look at the operations of the FCO Treaty Section).
For their argument to work Finnis and Elliott need to show that UK law recognizes that derivation as decisive on the question of constitutional authority. The fact, noted above, that they are unable to adduce supporting precedent is not surprising in light of what we have just observed. It would be very odd in a dualist constitution if it were otherwise. But just as telling is the way in which both courts and Parliament have reinforced core features of the dualist status quo, both in respect of EU law statutes and more widely. Let us turn to the case law first. There is no juridical category of a statute that is not subject to the normal rules and privileges that pertain to a statute: R (Jackson) v Attorney General  UKHL 56. And courts do not in fact treat ‘treaty-based statutes’ any differently from other statutes. Ahmed v HM Treasury  UKSC 2, for instance, concerned the targeted sanctions regime introduced in the UK to comply with various UN Security Council Resolutions (see also any number of cases concerning the interpretation of the Human Rights Act). The UKSC approached the authorizing statute, the United Nations Act 1946, in a conventional manner, and found that the Act did not provide the requisite authority to pass the measures in question. The Justices rejected the argument that a statute of this sort represents an exception to the application of ordinary public law principles such as would allow the executive to make orders without any kind of Parliamentary scrutiny. As Lord Phillips said at :
‘Nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country.’
Gavin Phillipson pushes the point further. There is, he rightly observes, one class of statutes which does have special status in UK law – constitutional statutes. These are distinguished in that they are recipients of not less but more judicial protection. The category includes a number of statutes that give effect to treaty obligations: indeed, most of the cases that invoke the doctrine concern the ECA (R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3; Thoburn v Sunderland City Council  EWHC 195 (Admin)). Mark Elliott wrote an approving note on the leading case that sought to identify a hierarchy of constitutional statutes and which concluded that the ‘HS2 judgment envisages a far richer constitutional order in which the differential normative claims of constitutional and other measures fall to be recognised and calibrated in legal terms.’ But if Finnis and Elliott (2016 version) are right then many of what the courts understand to be constitutional statutes will have less rather than more legal protection than other statutes.
Parliament has said nothing directly on the subject of constitutional statutes (although ECA 1972 s.2(4) could be construed as endorsing the notion). But we know that it shares the idea that animates the doctrine – that the source, authority and status of the ECA derives principally from UK law (i.e. Parliament itself) and not the Treaties (e.g. Thoburn at  (Laws LJ)). The European Union Act 2011 included a ‘sovereignty clause’ to address this point. Section 18 states that all ‘the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972 … falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.’ The distinction pressed by Finnis and Elliott rests on the contrary presumption. Their argument only works on the assumption that the real source of authority lies in the Treaties and that the legislative process of Parliament is not properly engaged when giving effect to our obligations that arise from their operation – Parliament here plays the role of ‘gatekeeper’ rather than legislator proper. But Parliament rejects this interpretation. The ECA, it says, is a British statute and ultimately subject to principles of British constitutional law (Mark Elliott reached exactly the same conclusion in his post on HS2 in 2014).
Despite the novelty of their own position, Finnis and Elliott task the High Court in Miller for introducing unreality into the constitution – ‘make believe’ in Finnis’s words. If their point is to criticize the Court for applying the doctrine of parliamentary sovereignty then it is facile. Parliamentary sovereignty is a legal rule and not a description of actually existing power relations (it is not just parliamentary sovereignty that produces such effects. So too does the prerogative). It can as such produce legal outcomes somewhat at variance to political realities. (Perhaps the best examples relate to the effects of granting independence to former colonies. Here the orthodox position is that, realities notwithstanding, Parliament remains sovereign in respect of its former colonial territories: British Coal Corporation v R  AC 500; Madzimbamuto v Lardner-Burke  1 AC 645.) If the point is to suggest that their solution involves less innovation than the Court’s then it is deeply in error. Their solution is to invent a category of statutes that are not subject to the normal rules that pertain to statutes. It rests on no statutory authority or judicial precedent. If that is not legal ‘make believe’, it is hard to imagine what is.
Exceptions 1: Popular Sovereignty?
The argument that Finnis and Elliott run about treaty-derived statutes is just one of a number of attempts to carve out significant exceptions to existing constitutional principle. These come in two main variants. One is that the referendum result constitutes a new species of superior constitutional act which has the capacity to displace existing constitutional rules. The other is that the question at issue in Miller is so intensely political that it is not amenable to juridical analysis. As public lawyers, we are (or should be) professionally sceptical about attempts to facilitate carve-outs to the legal framework in the face of apparent political imperatives, all the more so where the carve-out implicates basic constitutional principles. I do not think that there is a sound basis for making an exception here. Let us take the two types of exception in turn.
In a recent post, Mark Elliott and Hayley Hooper express a preference for popular sovereignty over parliamentary sovereignty and suggest that the court should have done the same in Miller. The relevant section starts with a misplaced comparison. The authors suggest that the court’s approach reflects a Burkean notion of representative government. But Burke was talking about the political relationship between the represented and their representatives. The court in Miller was articulating a series of organising principles relating to the institutional arrangement of power within the British state, demonstrably a different thing. The High Court, the authors suggest, gave more weight to parliamentary sovereignty than popular sovereignty. ‘But right now’, the argument concludes, ‘we are sailing in uncharted seas. For that reason, it is not straightforwardly clear that the principle of parliamentary sovereignty – once it is weighed in light of the relevant circumstances – exerts the degree of pull that the court assumes.’
Now, if the point is that we as public lawyers – and as citizens – need to reflect on the constitutional significance of referendums then I agree. ‘The referendum is now very much part of the British constitution’, Vernon Bogdanor writes. ‘But its place is uncertain’ (Bogdanor, New British Constitution, 186). Clearly this is something that we need to work on. But this is a debate, if not for another day, then certainly for another forum. To carve out an exception to parliamentary sovereignty for a referendum result is not a matter of minor constitutional detail. Our constitution posits as its supreme rule the supremacy of the Crown in Parliament. This is not to claim that this is the best way to organize a constitution. Just that this is the basis on which it is currently organized. As such, it is difficult to see on what the basis the Supreme Court might do what Elliott and Hooper ask. Their argument only begins to work if we take the referendum to have settled not just the question of whether we want to stay in the EU but also fundamental questions of constitutional order. The referendum asked no such question. It is hard to imagine that the people decided a question it wasn’t even asked.
Standing back a little, we can identify two distinct questions. The first is: should we recognize a constitutional principle that accords binding authority to a referendum result (irrespective of what referendum statutes themselves say or don’t say)? The second is: should the judiciary be the author of that principle? There is no need to answer the first question here because I am certain that the answer to the second question is no. Parliament has said nothing definitive on the matter. And the only other source of an authoritative answer – the people qua constituent agent – has not been engaged. For the court to deduce from a handful of (inconsistent) referendum statutes that the constitution has shifted in the direction of a hopelessly underdeveloped notion of popular sovereignty would be an act of folly. The court does not have the capacity or legitimacy to make such a far-reaching constitutional amendment. The matter falls outside judicial competence. As Lord Bingham responded to not wholly dissimilar arguments in Jackson, these are ‘issues which merit serious and objective thought and study. But it would be quite inappropriate for the House in its judicial capacity to express or appear to express any opinion upon them’ (R (Jackson) v Attorney General  UKHL 56 at ). Only Parliament – or, better, a constitutional convention with representatives from the UK’s constituent parts – can consider reform on this scale (Similar calls have gone up in other quarters. See e.g. Martin Loughlin, ‘The End of Avoidance’ (London Review of Books, 28 July 2016)).
By extension, though, might we not say that at the heart of Miller lies a political question to which the judges are incapable of giving a legal answer? Three considerations suggest that the answer is no. First, it is never wise to seek purity in the motives of those bringing a public law case. Claimants almost invariably seek a substantive outcome. They do not come to court to sharpen legal doctrine. In other words, public law is inescapably political. To describe a claim as ‘political’ is not in itself enough to turn it into a political question. The point of legal doctrines and categories is to sift between those cases (‘political’ or otherwise) that fall within the court’s purview and those that do not. Second, the legal question raised in Miller is one that sounds in constitutional law. It is not even a matter of the ‘new’ law of judicial review but invokes some of the most authentic and fundamental of ‘old’ rules. Third, while it can be appropriate for the court to defer to Parliament (e.g. R (Animal Defenders International) v Culture Secretary  UKHL 15) this is not such a case. The case concerns rules of constitutional allocation and here the entity to which the court is asked to defer is the executive, not Parliament. There is no constitutional basis for deferring to the executive when it comes to a conflict between prerogative and statute – given the pre-eminence of parliamentary sovereignty that is not surprising. The only reach around is to suggest that the ‘exercise of the prerogative to trigger Article 50 is no ordinary executive act: it is an act ministers have been told to undertake in a referendum’. But this just restates the referendum/popular sovereignty argument that I have already given reasons to reject.
Exceptions 2: Salus Populi?
Some writers are prepared to take the ‘Brexit as exception’ argument in a different direction by highlighting its supposed salus populi credentials. On this argument, current political exigencies are such that the law should accommodate itself to them. Mixing the functional with the frantic, Timothy Endicott argues that the Blackstonian virtues of ‘unanimity, strength and dispatch’ are paramount here given the ‘momentous constitutional importance’ of the politics surrounding Brexit and the ‘huge consequences’ that attend.
On the face of it, this is to be more executive minded than the executive (Liversidge v Anderson  AC 206, 244 (Lord Atkin)). Normally, the fact that a political process is of constitutional importance, ‘momentous’ or otherwise, and has significant consequences (including to existing rights) would be more than enough to ground an argument that Parliament must be the appropriate institution to handle it (R v Secretary of State for the Home Department, ex p Simms  2 AC 115; R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants  1 WLR 275 (CA)). Endicott’s argument for reversing the normal constitutional logic gains traction only if one assumes that we are in a situation of war or public emergency. (He does not rely directly, as others do, on what he calls the ‘earthquake of the referendum result’.) On this point, Endicott’s message is confused, even contradictory. On one hand, he wants to minimize the significance Miller, emphasizing (rightly) that Brexit will be a protracted and legally complicated process, on parts of which Parliament will have a say. On the other hand, he plays up the rhetoric and logic of the exception. And it is on this basis that he grounds a call for ‘scrutiny in extraordinary forms that respond to the extraordinary situation’ and the centralization of decision-making in the Prime Minister and Cabinet.
This is British Schmittianism. The position is tempered and qualified in a way that is unlike Schmitt, but some of its structural logic is the same. Schmitt favoured an authoritarian constitution in which the substantive unity of the people was represented in the figure of the president or decisive leader and where popular assent was expressed through plebiscites and other institutions of direct non-parliamentary democracy (Carl Schmitt, The Concept of the Political (Chicago, 2007); Legality and Legitimacy (Duke, 2004); The Crisis of Parliamentary Democracy (MIT, 1988)). It was not idly that Ernst Fraenkel, Schmitt’s ardent critic, called this model of government the ‘prerogative state’ (Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford, 1941), ch 1). To get there, Schmitt relied on exceptional moments – situations of constitutional crisis marked by the diminished normative force of existing legal rules and conventions in which space was opened up for the state to be reconfigured more openly in line with what he took to be the fundamental political dynamic of inclusion and exclusion (Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago, 1985)). The current urge to return to and reassess basic elements of the constitution bespeaks a move to some extent away from the constitutionally normal, whatever quite that is. But we need not overstate the point, especially in light of recent noises off (e.g. the front covers of The Daily Mail and The Telegraph on 3 Nov. 2016). Our instincts are – or should be – resolutely anti-Schmittian (a position I have tried to stake out elsewhere: Reason of State: Law, Prerogative and Empire (Cambridge, 2015)). Yes, the situation that we face is unusual and raises a novel set of legal questions (for analysis of what is to come, legally speaking, see Philip Allott on this blog). But we are not close to real crisis. What is more, it is not the courts’ job to suggest that we are (A v Secretary of State for the Home Department  UKHL 56,  (Lord Bingham)). The courts’ duty is to uphold the law, which means here to articulate and apply existing principles of constitutional law.
We have become familiar with the Baroque dance of norm and exception. The cases that have arisen over the last decade or so have come out of the more authentically salus populi context of national security. The courts have been pretty consistent in holding the normal constitutional line where one can be determined (e.g. A v Home Secretary; A v Secretary of State for the Home Department (No.2)  UKHL 71). If exceptions are to be made, the courts have held, the proper authority for this is Parliament (e.g. Al Rawi v The Security Service  UKSC 34). If courts have not caved in to the executive invoking some notion of ‘the people’ in the security context, why should they do so where the context is a long and drawn-out set of negotiations with basically friendly states? Endicott’s answer is to point to the sensitivity of the negotiations and other functional considerations, most of which government could adduce in respect of almost any moderately complex political or administrative act. ‘There is no indication in the Miller decision’, he continues, ‘to support the conclusion that the decision making will be carried out better or more accountably through the process of legislation’. But this is to miss the point. It is not the court’s constitutional role to assess competing options about what the best process to deliver a particular policy goal might be. It is to police the institutional allocation of functions as understood by the constitution. The point of the rules of constitutional law is to avoid ad hoc argument about which set of officials is best placed functionally speaking to take a particular decision. (On this score, administrative law is different. It regularly handles questions of this sort. But these take place below the level of an Act of Parliament which is immune from such considerations.) Arguably the design of the 1688 settlement is to avoid precisely this declension. The executive does not have power to make or unmake law, nor (certainly absent emergency conditions) the power to take away rights – unless Parliament itself authorizes it (see Jackson).
Constitutional Law and Public Opinion
Opinions differ about whether Miller is an ‘activist’ decision. In my view, while it blends the old with the new, it is rather conservative in its constitutional orientation. Telling in this respect is the nature of many of the critical responses. Those examined in this essay come from eminent scholars. But each proposal requires radical constitutional readjustment. David Feldman would have the courts drive a coach and horses through the law on prerogative. John Finnis and Mark Elliott conjure up a new category of statute to which rules of parliamentary sovereignty do not apply. Mark Elliott and Hayley Hooper ask the courts to act as agent to a sleeping sovereign still pressing the snooze button (Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge, 2016)). Timothy Endicott offers an exceptionalism so ill-defined and capacious that it could cannibalize most of ‘ordinary’ politics.
There is more than one way for a court to assert itself though. While not activist in the ordinary sense, Miller is an example of the courts adopting a ‘forward position’ on constitutional questions. The relevant dimension is not the extent of doctrinal or constitutional innovation (minimal in my view), but the way the court’s sense of itself as distinctive constitutional agent is asserted. While this may well be a feature of today’s judicial politics, it is worth noting that I have taken the term ‘forward position’ from a classic article by Philip Allott. He used the term to sum up the position that taken by what was then the House of Lords in four cases from 1960s and early 1970s on prerogative power (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 282). While the position of the courts may be a distinctive feature of the current climate, then, it is not one by any means unique to it. (We can go back much further, e.g. East India Company v Sandys (1685) 10 State Trials 371 and Nightingale v Bridges (1689) 89 English Reports 496, both of which concerned the king’s prerogative to manage foreign trade.)
What about the case’s short- and medium-term political implications? Endicott suggests that in practice the process favoured by the claimants in Miller may turn out to be only subtly different from the course of action defended by the government. He may well be right. Even if the case is won in the Supreme Court, the victory may turn out to be somewhat pyrrhic. The government could ask Parliament to pass legislation giving it a free hand in Brexit negotiations. There has been talk about introducing a very short Bill with that object in mind (including talk from sources that should have known better: see Lady Hale’s 9 Nov. 2016 lecture; it is true that she only touched on the matter delicately, but she should have shown even greater discretion). Such a scenario reminds us that Parliament and government usually act in concert – especially where stakes are high. He may overstate the case, but Bagehot was essentially correct to observe that our constitution is stronger on ‘fusing’ legislative and executive power than on separating them (Walter Bagehot, The English Constitution ).
But even on this scenario there may be upsides to Miller. First, the judgment should alter the balance of power between government and Parliament in favour of the latter. Even if this cashes out as a few extra degrees of bargaining power, that could be significant. Second, the case makes it harder for government to withhold information about Brexit strategies and negotiations. At the heart of the political claim for prerogative is a claim for secrecy and control. It almost always is. As Blackstone shrewdly remarked, prerogative ranks among the secrets of state (arcana imperii) and was ‘not suffered to be pried into by any but such as were initiated into its service’ (Commentaries, Book I, Ch.7, 230-1). It is a claim for special jurisdiction – as much as special power – in respect of which neither Parliament nor the public have their normal access rights. British government is congenitally secretive (e.g. Laurence Lustgarten and Ian Leigh, In from the Cold: National Security and Parliamentary Democracy (Oxford, 1994)), and the Prime Minister has a reputation for insularity (see also Mark Elliott’s excellent post). The risks go in both directions, but in this case the greater risk is not too much openness but too little. (For a recent example, consider the deal – the details of which we know nothing about – that seems to have been struck between the UK government and Nissan. The Treasury has refused a request for details from the Office of Budgetary Responsibility (23 Nov. 2016).) Third, the matter is at least as much about responsibility as about power. For Miller to shift the locus of power is also to reallocate responsibility. It may be valuable or beneficial for Parliament to have substantial oversight over the Brexit agenda. But it is essential for parliamentary democracy that it takes responsibility for it.
The author would like to thank Robert Craig, David Kershaw, Martin Loughlin, Gavin Phillipson and Sangeeta Shah for comments on early drafts.
Thomas Poole, London School of Economics and Political Science
(Suggested citation: T. Poole, ‘Losing our Religion? Public Law and Brexit’, U.K. Const. L. Blog (2nd Dec 2016) (available at https://ukconstitutionallaw.org/))