Losing Our Religion? Public Law and Brexit
Thomas Poole
LSE Law, Society and Economy Working Papers 24/2016
London School of Economics and Political Science
Law Department
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Losing our Religion? Public Law and Brexit
Thomas Poole *
Abstract: This essay critically engages with the academic critics of the recent High Court
decision in R (Miller) v Secretary of State for Exiting the European Union, which addressed whether
the Crown’s prerogative powers may be used to trigger Article 50 TEU without prior
Parliamentary approval. These scholars call for various exceptions and carve-outs to existing
constitutional principle. The law relating to prerogative is unpacked so as to show how these
options are unfounded. Worse, they require dangerous and unjustified innovation on the part
of the court and should be rejected.
Professor, Law Department, London School of Economics and Political Science. The author would like
to thank Robert Craig, David Kershaw, Martin Loughlin, Gavin Phillipson and Sangeeta Shah for
comments on early drafts.
*
24/2016
Prerogative is the enemy of the people. This has been settled as a 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.1 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.2 Although
the bundle has dwindled significantly,3 it still covers a range of matters. 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.4 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.5 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.6 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,7 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.
The 1688 settlement 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
House of Commons Public Administration Select Committee, ‘Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament’ (4 March 2004).
2 Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law
Journal 255, 265-6.
3 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).
4 See e.g. Chandler v Director of Public Prosecutions [1964] AC 763.
5 On the debates on this question earlier in the century see Glenn Burgess, The Politics of the Ancient
Constitution (Macmillan, 1992).
6 Entick v Carrington (1765) 19 Howell’s State Trials 1029.
7 A.V. Dicey, The Law of the Constitution (Oxford, 2013), 188.
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decades.8 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.9 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’.10
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.11 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 blindspot.
LAW AND PREROGATIVES
See 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 [1690].
9 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).
10Alexis de Tocqueville, Democracy in America (Barnes & Noble, 2003), 81. See also William Blackstone,
Commentaries on the Laws of England: Vol. 1 (Chicago, 1979), Book I, Chapter 2, III, 157; Dicey, Law of the
Constitution, 191: ‘The electorate is in fact the sovereign of England. It is a body which does not, and from
its nature hardly can, itself legislate, and which, owing chiefly to historical causes, has left in existence a
theoretically supreme legislature.’
11 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).
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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 prerogative12; (2) New prerogatives cannot be
created. Those that exist are only available for a case not covered by statute13; (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 Parliament14; (4) A prerogative cannot be exercised in a way
that would frustrate the will of Parliament as expressed in a statute15; (5) Treaty
obligations do not take effect as part of the law of the land unless given effect to
by statute.16 The Crown is thus disabled from using its treaty-making powers as a
device for legislating without the consent of Parliament.17
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.18
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.19 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’.20 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
Blackstone, Commentaries, Book 1, Ch. 2, 178; R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No.2) [2008] UKHL 61 at [44] (Lord Hoffmann): ‘since the 17th century the prerogative has not
empowered the Crown to change English common law or statute law.’
13 Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75.
14 Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508.
15 R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513; Laker Airways Ltd v
Department of Trade [1977] 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.
16 J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 (HL).
17 Higgs v Minister of National Security [2000] 2 AC 228, 241 (Lord Hoffmann); R (Wheeler) v Office of the Prime
Minister [2008] EWHC 1409, [15].
18 Ronald Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14, 25.
19 See e.g. Blackburn v Attorney General [1971] 1 WLR 103; Council of Civil Service Unions v Minister for the Civil
Service [1985] 1 AC 374.
20 David Feldman, ‘Brexit, the Royal Prerogative, and Parliamentary Sovereignty’ (UK Con Law Blog,
Nov. 8, 2016).
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power to do ‘those things in an emergency which are necessary for the conduct of
war’.21 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.22 Act of state is no defence to acts committed against a British subject
(or for that matter a non-enemy alien) on British territory.23
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.24 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’.25
The judgment contains two parts, only the second of which was
controversial.26 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.’27 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’28 of which continues to raise difficult
questions for our courts.29 Quoting Blackstone to the effect that ‘no power on
earth, except the authority of Parliament, can send any subject of England out of
Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, 100 (Lord Reid).
The standard practice is to legislate – and has been for a long time.
23 Nissan v Attorney General [1970] AC 179.
24 Halsbury’s Laws of England (4th ed., 2003 reissue), vol. 6, para 823. See also W. Ivor Jennings and C.M.
Young, Constitutional Laws of the British Empire (Oxford, 1938), ch.1.
25 R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No.2) [2008] UKHL 61, [69].
26 See the recent (unsuccessful) attempt to overturn that decision: R (Bancoult (No.2)) v Secretary of State for
Foreign and Commonwealth Affairs [2016] UKSC 35, [2] (Lord Mance); [77] (Lord Clarke); [188] (Lady Hale).
27 Bancoult (No.2) [35] (Lord Hoffmann).
28 Campbell McLachlan, Foreign Relations Law (Cambridge, 2014), 21.
29 See e.g. Keyu v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 15.
21
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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.’30 (The
minority judges of course would have gone further, arguing that even the colonial
prerogative did not contain the relevant power.31) 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.32
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.33
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,34 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.’35
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
See also Pham v Secretary of State for the Home Department [2025] UKSC 19.
A point powerfully made by Lord Mance at [155]. See also Lord Bingham at [71].
32 This mirrors the argument made more fully by Gavin Phillipson in ‘The Miller Case, Part I: A
Response to Some Criticisms’ (UK Con Law Blog, Nov. 25 2016).
33 Law of the Constitution, 362-3.
34 Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008), 246.
35 Commentaries Book I, Chapter 2, VI.
30
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Communities Act 1972 onwards that grant British subjects in particular a diverse
range of rights.36
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.’ 37 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.’38 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.39 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.’40
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.41 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
The High Court in Miller broke these down into three categories: paras 57-61.
John Finnis, ‘Terminating Treaty-based UK Rights’ (UK Con Law Blog, 26 Oct. 2016) and
‘Terminating Treaty-based UK Rights: A Supplementary Note’ (UK Con Law Blog, 2 Nov. 2016).
38 Mark Elliott, ‘Article 50, the royal prerogative, and the European Parliamentary Elections Act 2002’
(Public Law for Everyone, 21 Nov. 2016).
39 See also Mark Elliott, ‘Brexit: On why, as a matter of law, triggering Article 50 does not require
Parliament to legislate’ (Public Law for Everyone, 30 June 2016).
40 Kieron Beal QC, ‘The Taxing Issues arising in Miller’ (UK Con Law Blog, 14 Nov. 2016). See also Jeff
King and Nick Barber, ‘In Defence of Miller’ (UK Con Law Blog, 22 Nov. 2016).
41 Per Finnis: ‘Treaty-based rights are statutory in that they depend for their effect in UK law on
Parliamentary enactment; but they are not statutory inasmuch as they are not themselves enacted by
Parliament and can be terminated (“destroyed”) by termination of treaties in the course of the Crown’s
dealings with foreign entities or states.’
36
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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.42 (‘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 its 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.43 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.44 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
See e.g. Thomas Hobbes, Leviathan (Cambridge, ed. Richard Tuck, 1996), Ch. XVI, 112: ‘the Right of
doing any Action, is called AUTHORITY and sometimes warrant. So that by Authority, is alwayes
understood a Right of doing any act: and done by authority, done by Commission, or Licence from him
whose right it is.’
43 Thomas Poole, ‘The Constitution and Foreign Affairs’ (2016) 69 Current Legal Problems (available on
advance access).
44 John Finnis, ‘Judicial Power: Past, Present and Future’, Judicial Power Project (21 Oct 2015), at 27;
‘Law and What I Truly Should Decide’ (2003) 48 American Journal of Jurisprudence 107, 122, where he refers
to a category of ‘the non-paradigmatically “legal”, like international law’.
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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.45
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 [2005] UKHL 56.
And courts do not in fact treat ‘treaty-based statutes’ any differently from other
statutes. Ahmed v HM Treasury, for instance, concerned the targeted sanctions
regime introduced in the UK to comply with various UN Security Council
Resolutions.46 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: ‘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.’47
Gavin Phillipson pushes the point further.48 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.49
For an insight into practice, look at the operations of the FCO Treaty Section:
https://www.gov.uk/guidance/uk-treaties#united-kingdom-treaty-action-bulletins.
46 [2010] UKSC 2. See also any number of cases concerning the interpretation of the Human Rights Act.
47 Ibid. at [157].
48 Phillipson, ‘The Miller Case, Part I: A Response to Some Criticisms’.
49 R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3; Thoburn v Sunderland City
Council [2002] EWHC 195 (Admin).
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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.’50 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.51 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.52 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.53
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 sovereignty54 is a legal rule
and not a description of actually existing power relations.55 It can as such produce
legal outcomes somewhat at variance to political realities.56 If the point is to
Mark Elliott, ‘Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the
qualified primacy of EU law’ (UK Con Law Blog, 23 Jan. 2014).
51 Although ECA 1972 s.2(4) could be construed as endorsing the notion.
52 See e.g. Thoburn v Sunderland City Council, at [66] (Laws LJ): ‘what is the legal foundation within which
those substantive provisions enjoy their primacy, and by which the relation between the law and
institutions of EU law and the British state ultimately rests? The foundation is English law.’
53 Mark Elliott reached exactly the same conclusion in his post on HS2 in 2014: ‘At one level, this dictum
merely serves as a reminder that—as section 18 of the European Union Act 2011 reminds us—the
effectiveness of EU law within the UK legal system is ultimately attributable to, and a function of, the
European Communities Act 1972.’
54 It is not just parliamentary sovereignty that produces such effects. So too does the prerogative. See
John Allen, Inquiry into the Rise and Growth of Royal Prerogative in England [1849], 10: ‘In the most limited
monarchy the King is represented in law books as in theory an absolute sovereign.’
55 As Dicey wrote, ‘we may assert that the arrangements of the constitution are now such as to ensure
that the will of the electors shall by regular and constitutional means always in the end assert itself as the
predominant influence in the country. But this is a political, not a legal fact.’ The Law of the Constitution
(Oxford, 2013), 43.
56 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
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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.57 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’.58 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.
colonial territories: British Coal Corporation v R [1935] AC 500; Madzimbamuto v Lardner-Burke [1969] 1 AC
645.
57 Mark Elliott and Hayley J. Hooper, ‘Critical Reflections on the High Court’s judgment in R (Miller) v
Secretary of State for Exiting the European Union’ (UK Con Law Blog, 7 Nov. 2016).
58 Bogdanor, New British Constitution, 186.
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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’.59 Only Parliament – or, better, a
constitutional convention with representatives from the UK’s constituent parts60 –
can consider reform on this scale.
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
R (Jackson) v Attorney General [2005] UKHL 56 at [41].
Similar calls have gone up in other quarters. See e.g. Martin Loughlin, ‘The End of Avoidance’
(London Review of Books, 28 July 2016).
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to Parliament61 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 preeminence 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’.62 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.63
On the face of it, this is to be more executive minded than the executive.64
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.65 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
E.g. R (Animal Defenders International) v Culture Secretary [2008] UKHL 15.
Adam Tomkins, ‘Brexit, Democracy and the Rule of Law’ (Notes from North Britain Blog, 5 Nov.
2016).
63 Timothy Endicott, ‘This Ancient, Secretive Royal Prerogative’ (UK Con Law Blog, 11 Nov. 2016).
64 Liversidge v Anderson [1942] AC 206, 244 (Lord Atkin, of course).
65 R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115; R v Secretary of State for Social
Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (CA).
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favoured an authoritarian constitution in which the substantive unity of the
people66 was represented in the figure of the president or decisive leader67 and
where popular assent was expressed through plebiscites and other institutions of
direct non-parliamentary democracy.68 It was not idly that Ernst Fraenkel,
Schmitt’s ardent critic, called this model of government the ‘prerogative state’.69
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.70 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.71 Our instincts are – or should be –
resolutely anti-Schmittian.72 Yes, the situation that we face is unusual and raises a
novel set of legal questions.73 But we are not close to real crisis. What is more, it is
not the courts’ job to suggest that we are.74 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.75 If exceptions are to be made, the courts have held, the proper
authority for this is Parliament.76 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
Carl Schmitt, The Concept of the Political (Chicago, trans. George Schwab, 2007).
Carl Schmitt, Legality and Legitimacy (Duke, trans. Jeffrey Seitzer, 2004).
68 Carl Schmitt, The Crisis of Parliamentary Democracy (MIT, trans. Ellen Kennedy, 1988).
69 Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford, trans. E.A. Shils, 1941),
chapter 1.
70 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago, ed. George Schwab,
1985).
71 See e.g. the front covers of The Daily Mail and The Telegraph on 3 Nov. 2016.
72 I position I have tried to stake out elsewhere: Reason of State: Law, Prerogative and Empire (Cambridge,
2015).
73 For analysis of what is to come, legally speaking, see Phillip Allott, ‘Fundamental Legal Aspects of UK
Withdrawal from the EU: Eight Stages on the Way to a New Relationship’ (UK Con Law Blog, 9 Nov.
2016).
74 A v Secretary of State for the Home Department [2004] UKHL 56, [29] (Lord Bingham).
75 See e.g. A v Home Secretary; A v Secretary of State for the Home Department (No.2) [2005] UKHL 71.
76 See e.g. Al Rawi v The Security Service [2011] UKSC 34.
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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.77 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.78
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.79 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.80 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.81
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.
78 See Jackson above.
79 Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge, 2016).
80 Phillip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law
Journal 255, 282.
81 We can go back much further. Two of my favourite 17th century cases involve monopoly trading rights:
East India Company v Sandys (1685) 10 State Trials 371 and Nightingale v Bridges (1689) 89 English Reports 496.
Both concerned the king’s prerogative to manage foreign trade. In each, the court adopts a forward
position – in the first very much for the King (and by extension the monopoly company); in the second
for the anti-monopoly trader (and by extension Parliament). In an early judicial vindication of 1688
principles, Holt CJ ruled in the latter case that ‘the King cannot by letters patent create a forfeiture of, or
any way, by his own act, confiscate a subject’s property’.
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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.82 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.83
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’.84 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,85 and the Prime
Minister has a reputation for insularity.86 The risks go in both directions, but in
this case the greater risk is not too much openness but too little.87 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.
Including talk from sources that should have known better: Lady Hale, ‘The Supreme Court: Guardian
of the Constitution?’ (Sultan Azlan Shah Lecture 2016, Kuala Lumpur, 9 Nov. 2016). It is true that she
only touched on the matter delicately, but she should have shown even greater discretion.
83 Walter Bagehot, The English Constitution [1867] (Cambridge, 2001).
84 Commentaries, Book I, Ch.7, 230-1.
85 See e.g. Laurence Lustgarten and Ian Leigh, In From the Cold: National Security and Parliamentary Democracy
(Oxford, 1994).
86 See also Mark Elliott’s excellent post: ‘On the sidelining of Parliament: The Brexit Secretary’s statement
to the commons’ (Public Law for Everyone, October 2016).
87 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).
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