“You may think that your democracy is based on the sovereignty of the people. It isn’t. You may think the use of a referendum changed the constitution. It didn’t” – John Warren unpacks the Brexit politics.
Brexit does not mean Brexit. The British public (both lawyers and non-lawyers: I am not a lawyer) may draw that conclusion from the High Court of Justice decision in London on 3rd November. The case also provides robust evidence that Theresa May’s claim that ‘Brexit means Brexit’ was, and is, meaningless; which either her Government already knew, or it should have known. The Government has powerful legal resources at its disposal, and the Conservative Party never, ever stops telling the British public that it (alone in the body politic) understands the British constitution; through some ethereal, near-miraculous wisdom peculiar to Toryism. The ‘Daily Telegraph’ (4th November) was still attempting to peddle this egregiously risible doctrine in an ill-thought leader, while simultaneously headlining “The Judges Versus the People” (presumably without conscious irony) as it sank towards the vulgar discourse standards of the ‘Daily Mail’.
Three of the most senior judges in the English legal system begged to differ, and found against the Government in a case that the Conservative Government very, very conspicuously failed effectively to defend. The over-hysterical critics of the legal decision should look first at the adequacy of the case the Government brought; there lies the guilt, which tellingly, if disastrously, was represented at court in person for the Government by the Attorney General. The Government therefore, has no excuse and nowhere to hide from its own comprehensive failure. The critics should first look closely at the substance of the Government’s case that the Attorney General selected so badly, and then chose so ineptly to defend. We may then consider why such a thoroughly perverse course of action was even attempted by the Government. I shall return to this later.
First let us examine the judgement, rather than leave it to the dubious collection of vested interests that dominate British public discourse; which are invariably drawn from a rag-bag of ill-disposed media outlets, pre-disposed Conservative (or Neo-Conservative) politicians which most typically represent the Conservative Party’s indispensable paymasters’ vested interests; all existing exclusively to interpret every contentious issue on behalf of the British public, and to guide us unerringly towards a consensus understanding that will, in the event, rarely be in your, or for that matter in the public interest. If you do not wish your interests to be comprehensively filleted, spatchcocked and slowly cooked at leisure; and finally sliced and diced to serve as tasty morsels for someone much more powerful’s vested interest, it is best that you think for yourself.
Here is the judgement, and if you do not like my reading, read it for yourself here.
You may think that your democracy is based on the sovereignty of the people. It isn’t. You may think the use of a referendum changed the constitution. It didn’t. Our democracy is parliamentary; it is rooted in the sovereignty of Parliament. It is perhaps surprising that both Brexiteers and Unionists who have fought so bitterly over two referendums and three years (2014-16) to defend above all what they chose to emphasise was a British constitution founded exclusively on the sovereignty of Parliament; yet are now aggresively determined to abandon it wholesale and with immediate effect, for a conception of the ‘sovereignty of the people’ that they have resisted with equal, bitter antagonism through both referendums. These are indeed strange times.
Such a conception of ‘the sovereignty of the people’ that is now being promoted by the most improbable British advocates would, for example, conventionally require a written constitution. The first three words of the US Constitution (which is conceptually definitive in the Western political history of this tradition), are “We the people”: determining first in whose name the Constitution is written, establishing the terms in which this principle is best expressed, and finally defining whom it represents.
Returning to the British, Unionist conception of Parliamentary democracy we may now examine what question the High Court of Justice was called on to decide. This is not a matter of dispute.
“The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union” (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (a)4).
The Court Judgement makes clear that it is “agreed on all sides” that this is a justiciable question which it for the Courts to decide. The Judgement also makes clear that the Court “is only dealing with a pure question of law. Nothing we say has any bearing on the merits or demerits of a withdrawal by the United Kingdom from the European Union” (Miller v. Secretary of State Judgement; Introduction, (b)5). In the same paragraph the Judgement continues with a precise description of the nature of its legal ruling:
“The legal question is whether the executive government can use the Crown’s prerogative powers to give notice of withdrawal”.
The issue at stake is the use of Crown prerogative powers by the Executive Government to give notice of withdrawal from the EU (technically, Article 50). This is an issue essentially about the limits of power accessible to Executive Governments to exercise absolute authority, and not about the implementation of a referendum decision. It is the Conservative Government that deliberately chose to use Crown pregrogative powers to give notice of Article 50, and thereby by-pass Parliament. Effectively the purpose of this manoeuvre cannnot exclusively be a matter of using the only available method to give notice of withdrawal, because using Crown prerogative is not the only option open to Government to give the required notice, or to implement the Brexit decision. Such a claim is simply a canard trumped-up by interests who seek much more than the narrow Brexit decision itself, but complete control over your future, your liberties, and mine.
Why would the Government seek to use Crown Prerogative powers? Crown Prerogative is simply rather grand terminology for the Executive to take exclusively to itself, under special sets of circumstances, the absolute powers that in the British consitution are vested in Parliament alone. This is a matter of the dictatorship of the Executive, and it sets a dangerous precedent if it was sanctioned by the Courts.
The Judgement usefully summarises the agreed constitutional position:
“It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme. Parliament can, by enactment of primary legislation change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provsion to allow that to happen“ (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (b)20).
In order to cement this statement the Judgement provides precedent and authorities, including among the precedents Burmah Oil v. Lord Advocate (1965), and the authorities Sir Edward Coke, ‘The Case of Proclomations’ (1610), not long after the Union of the Crowns. But the first authority to which the Judgement appeals is Dicey, “still the leading account”; who argued that, in the Judgement’s words “Parliamentary sovereignty means that Parliament has”:
“the right to make or unmake any law whatever; and further, that no person or body is recognised by law … as having a right to override or set aside the legislation of Parliament” (Quotation from AV Dicey, ‘An Introduction to the Law of the Constitution’, 1915: 8th edition, Ch.1, p.38).
The Judgement goes on to quote Dicey further, where he makes it abundantly clear that:
“The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors” (Dicey, pp.57 and 72).
Where then does the Crown prerogative intrude into the untrammeled and absolute power of Parliament to represent alone the ‘Crown in Parliament’? The Judgement states:
“…. as a general rule, applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (d)30).
While this applies to international relations, the judgement makes clear that:
“An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers” .… “The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised” (High Court of Justice: Miller v. Secretary of State Judgement;(c)25. The precedent quoted in the Judgement is Burmah Oil v. Lord Advocate (1965); (c)24).
The Judgement goes on immediately to emphasise that:
“This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom” (High Court of Justice: Miller v. Secretary of State Judgement; (c)26).
Notice that the Judgement is more down-to-earth than the ethrereal vapidity in which Conservatives (the ‘Daily Telegraph’, or perhaps Jacob Rees-Mogg are exemplars) only too readily wrap the concept of the ‘Crown-in-Parliament’ in a heady, self-intoxicating, narcissitic stew: in Dicey’s terms the Crown simple represents absolute power; and in the High Court of Justice’s terms the Crown IS the executive government, whenever the Executive borrows Crown prerogative powers from Parliament; where, otherwise sovereignty permanently resides. The cold, hard matter at the bottom of this debate is who is entitled to exercise absolute power in the British constitution. Whatever Brexiteers suddenly, and totally out of character, now wish the public to believe; the ‘sovereignty of the people’ does not register on the Brexiteer menu, save solely to usher absolute power into the hands of a Brexiteer Executive. The question at stake is only whether the Courts would allow the Conservatives to accomplish this dangerous and essentially piratical raid on the British constitution.
More important here, the Judgement crucially emphasises that The Crown “cannot change domestic law by any exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (e)32; reinforcing the point raise by the Judgement in (c)25).
The stark problem for the Conservative Government attempting to exercise Crown prerogative powers over giving notice of EU withdrawal, is that in issuing Article 50 there are, beyond any argument, serious implications for domestic law.This is not an abstruse matter of arcane constitutional law, of interest only to Jurists; nor an issue of small moment: it potentially affects everyone in Britain. It is, therefore a well established principle of the working constitution, and it is no small matter.
There is a direct link between the creation of EU law in the appropriate EU Treaties, and British domestic law (High Court of Justice: Miller v. Secretary of State Judgement; (e)32; reinforcing the point made by the Judgement in (c)25). The EU Treaties could only have effect on domestic law through Parliamentary enactment (the exercise of Parliamentary sovereignty): in this case through the key European Community Act (ECA) 1972; which has been termed a ‘constitutional statute’ because of its profound effect on the daily lives of the British people.
In what the Judgement describes as the “nub” of the Government’s argument, which rests on its interpretation of ECA (1972), and particularly section 2(1) of that Act; the Secretary of State contended that EU rights were:
“ …. defined by reference to the EU Treaties. This means that Parliament intended for there to be a contunuing condition for the existence of any EU rights to be given effect in domestic law under section 2(1), in the shape of the continued membership of the European Union on the part of the United Kingdom; and that whether that condition is satisfied or not was intended by Parliament to depend entirely upon the action of the Crown on the plane of international law” (High Court of Justice: Miller v. Secretary of State Judgement; (a)77).
In this case EU rights would be subject to “removal by executive action on the plane of international law through the use of the Crown’s prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (a)78).
The Court’s decision, which ruled against the Government interpretation of the law on this issue, rested on the two principles discussed above:
1. The Crown “cannot use its prerogative powers to alter domestic law”
2. The Crown’s “prerogative powers operates only on the international plane”.
The Court ruled that “Parliament intended EU rights to have effect in domestic law” and “Parliament also intended that British citizens should have the category (ii) rights [ECA 1972] and that, likewise, they should not be capable of being undone by the Crown by exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (e)94). The finer details of the technical legal arguments may be reviewed by readers in the Judgement, paras.,79-94. In the words of the Judgement:
“The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law” (High Court of Justice: Miller v. Secretary of State Judgement; (e)93, sub-para.,8).
Finally, notice here that Parliament (and the Courts) stand as the defender of the citizen against the exercise of absolute power by the Executive.
On the (principal) action that the Claimants brought against the Government, to the effect that
“the Crown could not change domestic law an nullify rights under the law unless Parliament had conferred upon the Crown authority to do so either expressly or by necessary implication by an Act of Parliament. The ECA 1972, in their submission, contained no such authority” (High Court of Justice: Miller v. Secretary of State Judgement; (f)95).
The Courts agreed with the Claimants primary submission, and decisively, that “the Crown cannot give notice under Article 50(2)” (High Court of Justice: Miller v. Secretary of State Judgement; (f)96).
The Court’s Judgement was less a decision against the Government, than a rout; with the Attorney General at the head of the flight. Within the careful wording of the Law Lords, we find the following insights into the scale of the defeat: the Court refers to the Secretary of State’s submission being “flawed” at a “basic level” (para., (b)85); the Secretary of State “goes too far” (para., (a)81); the Secretary of State’s submission “glossed over an important aspect” of the interpretation of ECA 1972 (para.,(b) 84); the Secretary of State’s submission “left out part of the relevant constitutional background”, indeed “It was omitted” in spite of his submission making recourse to the omitted approach a “keystone” of his submission (para.,(b) 84); the Secretary of State’s submission “gave no value to the usual constitutional principle” that the Crown “should not have power to vary the law of the land by the exercise of its prerogative powers” (para., (b)84); the Secretary of State’s case is “substantially undermined in a case such as this, where [he] is maintaining that he can through the exercise of the Crown’s prerogative bring about major changes in domestic law” (para., (d)89); the decision in ‘ex. p. Rees-Mogg’ “on which the Secretary of State sought to place considerable weight, does not provide guidance in the present case” (para.,(d)89); within detailed analysis of the provisions of ECA 1972 there is a long list of examples in which the Secretary of State’s interpretation is exposed to “inconsistent” reading, not once but twice (in sub-para., (1) and (4)), in which the implementation of the relevant “Treaties” (section 2), “refutes the Secretary of State’s own textual argument on section 2(1)”, and “There is nothing in the constitutional background to warrant reading the words in that way” (para.,(e)93); further on ECA 1972, section 2(2) the judgement concludes that “On the Secretary of State’s argument, this [section 2(2)]…. …. would make little sense if Parliament had intended that the ECA 1972 should be interpreted as the Secretary of State intends” (para., (e)93).
This was a disastrous submission and raises the question what the Government thought it was doing. The weight of evidence suggests there is not much prospect of the Government overturning such an overwhelming decision in the Supreme Court. What is even more extraordinary was the speed with which the Government stated that it would appeal the verdict to the Supreme Court; before the Government could conceivably have given mature reflection on the ruling, or the scale of the Government legal failure. It may have been more appropriate if the Attorney General had first considered his own position (as some critics surmised – there were critics who were astonished that the Attorney General undertook to lead the case, against a formidable barrister representing the claimants, and which merely suggested yet another bad judgement within Government); or more importantly, the Government itself and Theresa May should have very seriously ‘considered their positions’ given the scale of this defaet for a Government now notable for failure, blunders and bad judgement.
Put simply, the Government has demonstrated, beyond peradventure, that it does not understand the British constitution; nor does it seem to care. Presumably it is too intent on ruling by decree and turning Britain into a redoubt of Executive absolutism, given only the opportunism presented by unfolding political events in the wake of a contentious referendum. But of course, at its very heart this profound instinct for absolutism is Toryism incarnate.
The background to Brexit and the status of this Government is not as it appears. David Cameron’s Conservative Government lost the referendum. The honourable response to a catastrophic failure, at least on such a scale, and in the central plank of the Government’s policy, would be to resign and call a General Election. Such a defeat suffered by any Government provides the clearest conceivable evidence that it no longer has any mandate to govern.
Instead, the Conservative Party clung to a devious manipulation of political fair-dealing in order to present a neat false-binary option to the British public throughout the referendum campaign: two faces. The Conservative Party effectively represented the leaders (David Cameron on one side; Johnson and Gove on the other) of both sides of the Referendum campaign. Wherever you looked; Brexit or Remain; there were the Conservatives leading the campaign. The Conservative Party fought a campaign it did not intend to lose, whatever the British people chose. Heads, they win; tails, you lose.
Following the result of the Referendum in favour of Brexit, a few token sacrifices at the top of the Conservative Party and Government were made (for the superficial appearance of decency); Cameron resigned, and failing the capacity of Johnson and Gove to mount anything more convincing than headlong flight into the long grass (to emerge later almost unscathed and within the ‘fold’), Theresa May, a senior member of the failed Government was promoted (Crowned following a disingenuous ‘election’, which was the only ‘election’ the British electorate would be allowed). Theresa May became Prime Minister for being a key contributor to a failed Government. This is politics; it certainly works in our Parliamentary system, for there they are, and there they remain, no matter what: but Theresa May and the Government are in no position to lecture anyone about the nature of ‘democracy’. They plead the ‘Crown prerogative’ over whatever they can railroad through without the inconvenience of Parliamentary scrutiny.
May and her Government have made much of the need for the Crown prerogative in issuing Article 50, because Parliamentary scrutiny would ‘reveal their hand’ to the Europeans; as if this was a ruthless business negotiation in which the principle purpose was to disadvantage as many people as possible in pursuit of profit.This is, of course, a ‘red herring’. The absurd lengths to which the Government has sought to protect secrecy has two principal purposes.
First, the Crown prerogative is being used to hide the extent to which the sheer scale and complexity of the legal, political, economic and social consequences of Brexit is far beyond the normal resources and capacity of this or any Government (in its widest sense), and far beyond the administrative, management and statesmanship talents of this particular, notably low-grade Conservative Government.
Second, the Crown prerogative is being used as a screen to achieve whatever solution for Brexit that the Conservative Government decrees (I choose the word carefully). This is absolutism; to provide the Government with the maximum freedom to set an agenda to change radically the whole shape of rights and responsibilities of all the British peple within Britain, on the basis of a philosophically hard-right, neo-conservative agenda; and without let or hindrance from either Parliament or people.
The Government wishes the capacity to introduce a political programme that goes further, deeper and more comprehensively into peoples lives, rights and prospects than anyone could rationally claim was contained in a simple binary ‘Yes/No’ referendum question; a bald question about continued membership of the EU, or not. The government is appealing to the Crown prerogative in order to keep its decisions on the detailed nature of the implications of Brexit a secret: a secret, not from Europe, but from the British people. The fact that they still do not know what they want to do is no bar to the scale of the Conservative Government’s ambition to access untrammeled power: indeed they appear to believe it is theri ‘right’. When Theresa May says “Brexit means Brexit” she does not mean the tautologous “Brexit means Brexit”; she means “Brexit means Brexit, whatever the Conservative Government chooses to negotiate the meaning of Brexit, without recourse to Parliament or people”.
I wrote above that the prospects for the Government were not high that it could overturn the High Court of Justice ruling, on appeal to the Supreme Court. What arguments could they advance? As I also pointed out, I am not a lawyer so I am scarcely resourced to offer an interesting, still less authoritative opinion. In these extraordinary times, I would however wish to advance one strange, unsettling line of attack that may have some adhesive properties. I was put in mind of it by the statement made by a distinguished Scottish judge who served the European Court of Justice, Sir David Edwards. He explained to the House of Lords European Committee ‘The Process of withdrawing from the European Union’ that:
“It is absolutely clear that you cannot be forced to go through with [withdrawal from the EU] if you do not want to: for example, if there is a change of Government” (HL Paper 138, 4th May, : Ch.1.10, p.4-5)
Sir David Edwards was supported in the interpretation by Professor Derrick Wyatt, Emeritus Professor of Law, Oxford University who indeed supplied further legal analysis (HL Paper 138: Ch.1.10, p.5).
It seems clear that the key difficulty for the Government exercising Crown prerogative is that in giving notice of withdrawal from the EU through Article 50 (which initiates the opportunity to introduce Crown prerogative), i.e., once notice is given of Article 50 the process of withdrawal takes over and Britain inevitably leaves the EU. The implications for domestic law in the UK become real and manifest, and the Government is disbarred from resort to Crown prerogative power.
However, if Sir David Edwards is correct, and there is little reason to doubt his or Professor Wyatt’s opinions, then giving notice of Article 50 would not, in itself, mean that all the other consequences flow; the implications for domestic law may not be realised; because Article 50 could then be withdrawn. If Article 50 does not automatically lead to the UK leaving the EU, and domestic law is not affected, then the negotiations presumably remain entirely on the ‘international plane’, and the Government may indeed apply Crown prerogative (or there may be a ‘prima facie’ case to be made). It does not seem to be an issue on which the High Court of Justice ruled (I did not spot it), presumably because the Claimants did not raise it, and the Government could not raise it; because the Government has committed isself to giving notice of Article 50 on the understanding it cannot be withdrawn; or to put it in simpler terms, the government has been hoist by its own petard.
This raises a nice conundrum: if this argument has merit (I do not claim to know), the Government could indeed operate with Crown prerogative, in secrecy and out of sight of Parliament and people; only to do so, it would have to give notice of Article 50 on the understanding that it could be withdrawn at any time before Britain exited the EU. In other words:
“Brexit does not mean Brexit”.