Brexit, populisme, juridictions et Parlement : une réflexion du Pr John McEldowney

En ces temps propices à la réflexion, l’Observatoire publiera dans la semaine deux articles de collègues anglais (les professeurs John McEldowney et Patrick Birkenswaw) prenant du recul sur la séquence 2016-2019. Nous conseillons de mettre en perspective ces analyses avec les réflexions que nous avions pu apporter il y a quelques mois. Nous en profitons pour annoncer à nos fidèles lecteurs que l’ouvrage du directeur de l’Observatoire, Le Brexit. Une histoire anglaise,  sortira en librairie au début du mois de septembre 2020 aux éditions Dalloz.

La présente contribution du Pr John McEldowney permet de comprendre que le Brexit est un moment constitutionnel majeur au même titre que les épisodes historiques du XVIIe siècle. Le Brexit a conduit à repenser la relation entre la prérogative, le Parlement et les juridictions dans un contexte dominé par le populisme. Nul doute qu’il faudra en tirer les conséquences ainsi que le rappelle la conclusion de ce texte. Si la perspective d’une grande convention constitutionnelle semble peu réaliste, certaines règles devront sans doute être adaptées. Les événements de ces quatre dernières années ouvrent ainsi une période de réflexions nouvelles sur la Constitution britannique.

Brexit, Populism, The Courts and Parliament

 Reason is the life of the law, nay the common law itself is nothing else but reason, which is to be understood of an artificial perfection of reason, gotten by long study, observation and experience, and not every man’s natural reason for Nemo nascitur artifex. This legal reason est summa ratio.

Sir Edward Coke, Co. Litt. 97b

Introduction

The question addressed in this essay is whether the UK courts have developed new specific constitutional theories or doctrines in addressing the issues raised by Brexit? The essay begins by considering the implications of the result of the referendum vote in 2016 in favour of Brexit, and the possible influence of populism. Next, Brexit’s impact is evaluated in its effects on the relationship between Parliament and government, the working of constitutional conventions and parliamentary procedure during the passage of the European Union (Withdrawal) Act 2018,[1] which is the cornerstone of the post- Brexit era. There follows a discussion of the two  most notable Supreme Court decisions on Brexit, Miller[2] in 2017 ( No. 1) on the question of  the use of the prerogative and the necessity of Parliamentary approval  and Miller[3] in 2019 ( No. 2)  on the application by the Government of the royal prerogative enabling the prorogation of Parliament. Going forward, the decisive December 2019 election victory of the Conservative Party with a large majority government and a populist leader as Prime Minister has enabled the government to proceed to exit the EU in January 2020 and enter the transition stage of leaving, pending final negotiations by the end of December 2020. The 2019 election victory was a triumph for Brexit supporters over those that supported remain. However, significant questions remain about the Brexit legacy, if any, on the courts, government and parliament and the future of populism in UK politics.

The Brexit Referendum and Populist Politics

Support for a referendum, to be included in the UK’s unwritten constitutional arrangements, has a long history.[4] A. V. Dicey,[5] was one of the first advocates, describing  the referendum as a “ veto of the people.”[6] Dicey’s motives  for a referendum, have been attributed to his opposition to “party” government usurping Parliamentary power at a time when Irish Home Rule was in its ascendancy and this might result in the break-up of the Union[7].  Late nineteenth-century Britain was a period of considerable constitutional conflict and Dicey feared the concession of Irish Home Rule would weaken the unity of parliamentary sovereignty through the break-up of the United Kingdom[8].  Dicey also recognised, but accepted with some alacrity, that Parliamentary sovereignty, a fundamental pillar of the constitution, might be at variance to any popular referendum vote. He skilfully argued that political expediency of the times necessitated “the will of the people” to prevail over elected MPs.  A referendum offered through politics and polemics “only a conservative check on legislation which is clearly in harmony with those democratic principles which in the modern world form the moral basis of government.”[9]

 In contemporary times, various referendums have been held.[10]  Political expediency underpins reasons for holding a referendum. While a referendum may allow a form of direct democracy, it is often, in opposition to representative or Parliamentary democracy. The reconciliation of different forms of choice- the party political and the popular have proved difficult. In the UK the referendum is normally non-binding[11] authorised by an Act of Parliament, triggered by a dissatisfaction with the politics of political parties[12] or an inability of groups within political parties to agree. The EU referendum in 2016 came about because of long-standing deep divisions in the Conservative Party[13] over Europe, but also excited by a diaspora of dissatisfaction and underlying tensions within the United Kingdom. The UK had not triggered a referendum to join the European Community in 1972 but a confirmatory referendum on membership was held in 1975[14]. The 2016 referendum vote to leave the European Union, was largely unexpected by the mainstream political parties as it was a rejection of their advice to remain. Many explanations are offered for what happened in the Brexit vote, the general consensus is that the referendum was an expression of dissatisfaction amongst many voters of a failure of successive governments to address their needs. The term “populism” is often used to mean an expression or response or corrective dissatisfaction about elites or vested interests and a desire to create political platforms that challenge existing orthodoxy.  Notable characteristics that seem to fit the  successful Brexit campaign include :Political activism working outside traditional party structures and organisations; a propensity to  replace conventional constitutional structures by the use of popular meetings  and skilled manipulation of social media in order to propagate simplified versions of facts and “sound bites”- effective against complex governmental systems;  the exploitation and clever manipulation of legal regulations, including the rule of law, to  avoid too much scrutiny and oversight; negotiating the electoral system through popular forums to garner support and exploit ideas  that find common form in terms of nationalism, patriotism; the exploitation of public fears and suspicions, particular hostility to immigration; the use of ethnicity and race to promote common cause through accentuated differences of “ foreigners”[15]

Responses to the 2016 referendum fit the model of typical responses to populism, namely a counter-reaction: A fear that  the rise in populism will be an unstoppable influence on the political system that may enable “far right” groups to flourish and gain political momentum and success. There is concern that its success will expose the fragility of democratic systems of government and may even question the vitality of the rule of law itself. In the Brexit context the referendum is increasingly seen as a popular vote against the advice of the establishment. “Taking back control” was doubly nuanced to mean leaving the EU as well as against the views of the majority of elected members of Parliament and their accompanying political parties, who favoured remain. Liberal democracy is accused of failing to represent a sufficiently wide spectrum of opinion and a reaction against an austerity programme of public cuts and a reduction in public services since the financial crisis of 2008.

Many commentators express surprise that a settled and mature democratic constitution such as the UK would struggle to meet the demands of populist challenges, that might be more easily resolved than a vote to leave the EU.  One reason  that this proved more difficult than at first thought, is that Brexit engaged with an exclusive English nationalistic form of populism, that challenged conventional wisdom and effectively shifted the agenda to populist politics and the erosion of the established views of the main political parties. Replacing established constitutional norms with appeals to populist politics has unleashed highly unpredictable outcomes.

 Another commonly advanced  explanation for the rise in populism, is poverty[16] and the sharp divide between the very rich and the poor[17] .Since the 2008 financial crisis, it is striking how the UK introduced deep cuts in public spending.  One consequence is that publicly funded support for the less well- off members of society has been reduced, leaving many more vulnerable in society. Student debt, pensioner dissatisfaction, low wages and poor social prospects linked to inadequate housing and run-down and deficient infrastructures are all on the increase.

The UK’s decision to leave the EU claimed on the basis of the need to assert sovereignty and “bring back control”[18]  provided a simple slogan that became a compelling political message. The implications of the Brexit message are clear that EU membership had put at risk the UK as  a nation state, undermined its sovereignty and impacted on the day to day life of many citizens, leaving them less free and able to make decisions on their own behalf. Underpinning many of the concerns about the EU is the question of immigration and its control. Paradoxically, the perception of “hordes” of EU migrants is not supported by the actual figures, provided by the House of Commons Library. The origin of migrants coming into the UK in 2017 was 13% British Nationals, 38%  nationals of other EU Countries and 50% were nationals of non- EU countries. Significantly, it means that at least 50% of all migrants were subject to immigration controls[19]. Perceptions appear to matter more than reality and in many crucial areas of the Brexit decision, communities believed that they were over- crowded by unwanted and uncontrollable EU citizens. One explanation comes from the 2008 financial crisis. Katrina Forrester, offers the analysis[20] that as a consequence the current political crisis is opportunistic and aimed at displacing liberalism and challenging exiting orthodoxy in our institutional of government. Considering how Brexit has impacted on the UK’s institutions, government courts and Parliament  provides an insight into how populism, or at least populist causes, may force a change in our perceptions about law and society.

Brexit: Parliamentary Procedure and Constitutional Conventions

Events after the 2016 referendum highlighted the political complexity of a Parliamentary system when faced with a non-binding referendum result that most MPs did not want or expect. The government, under the Prime Minister, Mrs May, treated the 2016 referendum result as politically binding, mainly because of  vociferous group of pro-Brexit supporters within the Government and the Conservative party. The majority of MPs in the House of Commons were supporters of remain, although both parties had agreed to give effect to the referendum result. The UK itself was spilt, the 2016 referendum was won by a narrow majority, 51.89% to 48.11%. Scotland and Northern Ireland voted to remain as did London. While Wales and England voted to Brexit.  Faced with likely opposition in the House of Lords, in 2017, the Prime Minister obtained the agreement of the House of Commons ( required under the Fixed Term Parliament Act 2011) to call an early general election for 8th June 2017 with the expectation that having triggered Article 50,  a few months earlier on 29th March she might win a larger majority with which to govern. Instead, the government lost its overall majority and there was a hung parliament. This had two important consequences, outlined below that have significance for the Government. First, normally the government controls Parliament but the election result largely left Parliament in control with little room for the government to exercise its own authority. Second, the UK entered an unprecedented period where traditional constitutional conventions began to breakdown, not least because of the fetter on the government to decide when to call another election under the Fixed- Term Parliament Act 2011.  As we shall see the implications of a weakened government sets the background for the issues raised by Brexit in the courts.

 After the 2017 election the Conservative government with only minority parliamentary support, reached an agreement with the Northern Ireland Democratic Unionist Party (DUP) resulting in an additional 10 members in support of the Conservative Party on key votes connected with financial supply. Even with the additional support of the DUP it was not clear that the government would be guaranteed support for a specific agreement with the EU[21].

The government’s ambition to implement the referendum proved more complicated and politically difficult than at first appreciated, as it faced sustained opposition in Parliament, including from its own MPs. Brexit resulted in some novel constitutional challenges. The most serious was that the 2016 Referendum result was silent on the  process and mechanics of reaching agreement with the EU as part  of withdrawal under Article 50. Control of policy-making, traditionally vested in the government of the day underwent unprecedented challenge as the government struggled to secure agreement within its own ranks as to the best policy to pursue in negotiations with the European Union. Negotiating with the European Union, a unique, complex and technically difficult process was being determined by political struggles within the UK Parliament. The latter had far-reaching consequences for constitutional convention and the procedures of the House of Commons. The migration of retained EU law into UK law proved a major challenge, as the debates on the European Union (Withdrawal) Bill 2018 revealed.

 Brexit exposed many of the fault-lines connected with constitutional conventions, particularly collective cabinet responsibility, which dates from, at least the late 18th century. Collective cabinet responsibility is intended to facilitate government policy-making. Ministers, as members of the Cabinet, are expected to remain loyal to cabinet decisions, which are expected to be confidential and not publicly opposed by serving ministers.  A small number of instances in the past have occurred when collective responsibility may be waived by the Prime Minister[22]. These are rare examples that were underpinned by the political necessity of the moment. However, Brexit challenged the orthodoxy of obeying constitutional conventions in an un- precedented way, and undermined the assumption that the Government’s decision-making will be able to secure the confidence of the House of Commons.

 In January 2017 the government suffered opposition to its use or prerogative powers when the United Kingdom Supreme Court in the Miller (2017) No 1 case, held that triggering Article 50 required an Act of Parliament. This was duly passed in six weeks.[23]  The status of the Sewel Convention in relation to Brexit, also arose in the Miller (2017) No 1 decision, (discussed in more detail below). Scotland and Northern Ireland[24], both devolved nations that voted to remain, raised the question, before the UK Supreme Court, of the Sewel Convention that provided that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. In the case of Scotland section 2 of the Scotland Act 2016 recognised the existence of the Sewel Convention and it was strongly argued that Scotland’s case for the convention to be enforced by the courts came from the 2016 Act. The Supreme Court in Miller ( 2017)[25] No. 1 concluded that a “convention was a convention and could not be enforced by the Courts[26]”, thus depriving the legislature of Scotland and Northern Ireland with the need to give consent to Article 50 being triggered. In the particular case of the Scottish Parliament, the majority in Miller concluded that the UK Parliament has not sought “to convert the Sewel Convention” into a rule which can be interpreted, let alone enforced by the courts”. Interpreting the purpose and aims of the Scotland Act 2016 in this way avoided the Supreme Court having to engage with a “political convention” which it would otherwise have had to deal with. The Supreme Court’s interpretation raises some caution about attempting to place restraints on the powers of the Westminster Parliament through statute, but at the same time acknowledges the necessity for the UK Parliament to enact fresh legislation required to trigger Article 50. The Supreme Court’s narrow interpretation of the Sewel Convention marked its reluctance to decide whether or not a Brexit Bill needed  any form of consent of the Scottish Parliament[27].

 Brexit proved to have significant implications for the use of parliamentary procedures associated with the passage of the European Union (Withdrawal) Act 2018 the key constitutional text for withdrawal.  The 2018 Act repealed the 1972 European Communities Act on exit day, and “retained EU law”  into UK law, in the expectation that at a future date decisions would be made on what part of EU law might be retained or amended. Its passage through the House of Commons became problematic.  Back-bench conservatives MPs were able to amend the Bill and defeat the Government in the Commons and subsequently the Lords. One of the most significant was the amendment that before a withdrawal agreement could be ratified it had to be agreed by a motion of the Commons which contained provision for the implementation of the Withdrawal Agreement, thus ruling out a no-deal scenario. In so doing policy-making initiatives were removed from the Government in favour of opposition MPs and  requiring a “meaningful vote”  in Parliament on the Withdrawal Agreement underlined Parliament’s authority over the Executive.

 As will be outlined below, a weakened government was further embarrassed. During January 2019 further amendments to the 2018 Bill were tabled.  Having agreed on 8th January for there to be a five day debate on the Bill, Dominic Grieve, a back bench Conservative MP, tabled an amendment requiring the government to bring forward any new Brexit plans, within three days, if the government were defeated. Perhaps, unusually, the Speaker allowed the amendment against the advice of the  Senior Clerk  that such an amendment was unnecessary as the government had already conceded such a plan would be put forward “forthwith[28]”. However, the Grieve amendment was passed by 308 to 207 votes

The Speaker’s role proved decisive on another significant and more striking decision. The House of Commons rejected the Withdrawal Agreement on 15th January 2019, the cornerstone of Government policy, by an unprecedented 432 votes to 202, after five days of intense debate. Many MPs in the Government’s own party voted against the Withdrawal Agreement and the vote against, curiously united both pro Brexit and remain MPs and left the Prime Minister in considerable difficulties as to how to proceed- not least on how to leave the EU with an acceptable arrangement that would pass Parliamentary scrutiny[29]. On 12th March 2019, having secured further elaboration of the  Withdrawal Agreement  regarding N. Ireland, the Withdrawal Agreement was defeated by 391 votes to 242. The  Speaker advised that any third attempt to bring forward the Withdrawal Agreement  would not be proceeded upon if the  Withdrawal Agreement was the same in substance as the one previously defeated. The principle applied was that the same motion may not be debated for a further occasion if it has already in the same session been debated and rejected[30]. The outcome was to restrict debating a third Withdrawal Agreement which was similar to the previous Withdrawal Agreement[31].

 The PM did not resign, a normal conventional response to such a defeat. Instead, her government won a vote of confidence the next day when Conservative MPs and Democratic Unionists united to keep the Government in office. By the Summer of 2019, the Prime Minister had lost three attempts to have the Withdrawal Agreement passed. Taken together  some of the successful amendments included a renegotiation of the Northern Ireland back-stop, and an expression of avoiding a no-deal Brexit. Five other amendments were unsuccessful.[32]

In March 2019, 13 ministers including four cabinet ministers abstained on a government motion ruling out a no-deal Brexit with the  tacit agreement of the Prime Minister. Later one resigned but the remainder stayed in post. More dramatically, on 14th March eight Cabinet Ministers , including the Brexit secretary voted against the government’s own motion to extend the time-table for negotiations under Article 50. The Prime Minister could do little and accepted that there had been a de facto “ free vote” on the government’s motion. Enfeebled the government, continued in office with the knowledge that it lacked the support of about one third of the Cabinet.

On 25th March the house of Commons agreed an amendment to consider some indicative votes, including no deal and revocation of Article 50, put forward by Sir Oliver Letwin. Eight votes took place using a ballot system and all were rejected. On 1st April an additional four votes were taken and all rejected except there was support for membership of a customs union by a majority of only three votes. The House of Commons had reached an impasse[33].

MPs emboldened by the shift in power from the government of the day, succeeded in passing a business motion[34] suspending standing orders and removed the precedence given to government Bills. This allowed  MPs to debate and agree the passage of a Bill on one day. The European Union ( Withdrawal Bill)  was passed by 315 votes to 310  stipulating that the Commons could decide the date of the extension sought under Article 50(3). Soon after the Prime Minister  resigned  and , after a prolonged election process, Mr Johnson, replaced Mrs May in July 2019 and by November 2019 had managed to negotiate a new version of the Withdrawal Agreement, but the necessary legislation has not been accepted by the UK Parliament.[35]

 Lord Norton, a leading political scientist and Conservative Peer, estimates that largely as a result of Brexit, 38 ministers  including 11 cabinet ministers resigned between April 2018 and the end of September 2019, the majority, 22 resigned over differences over  Brexit policy. Most embarrassingly, the government was held to be in contempt of the House of Commons when it failed to publish legal advice on aspects of the Brexit arrangements that applied to Northern Ireland.

The full constitutional implications of Brexit on the executive, and parliament have yet to be fully evaluated. It is clear that the referendum result created “seismic tremors” within the Westminster system. Some considered it a crisis, while others pointed to the weakness of Parliament’s constitutional arrangements namely its outdated rules of procedures and highly discretionary decision-making, particularly in the discretion enjoyed by the Office of Speaker of the House. A noticeable omission, the use of modern electronic voting, leaving time-consuming votes on procedural motions and amendments to archaic procedures impeding the smooth functioning of decision-making[36].  Government ministers found a large portion of their time was spent, not in governing, but hanging around the House of Commons chamber.  Other shortcomings[37]  related to  Erskine May[38], the long established authoritative Parliamentary book of past “precedent,”  which lacked procedures ( electronic voting for example) and suitable guidance for the needs of  the 21st century.

In its fundamentals the major problem for MPs  at the time was that the tradition of MPs elected by their constituents to make decisions on their behalf rested uneasily with the referendum outcome where the voters claim strong “democratic” credentials and  a higher order of authority over MPs.  Even in their traditional role of legislative scrutiny, Brexit has underlined  major weaknesses in Parliament’s ability to give detailed scrutiny to the EU (Withdrawal) Act 2018. The Act passed with remarkably few amendments or debate, even though it granted wide ranging and largely unaccountable delegated powers to the government of the day. This extension of powers to allow Ministers to amend primary legislation using ministerial power of secondary legislation is alarming because it has the potential to give unfettered powers to the Executive. The House of Lords Select Committee on the Constitution warned about the departure from the normal progression of legislative scrutiny to a “ lighter-touch processes of secondary legislation, other than in exceptional circumstances[39]”. The Select Committee also identified other trends such as the use of skeleton Bills which contain widely defined delegated power in the absence of any substantive policy. This has a bad effect on the role of Parliamentary scrutiny. More generally there is concern about some short-circuiting of the normal way Bills are drafted. Instead of containing the main details and substantive clauses setting out what the Bill hopes to achieve, there is a new tendency for the Bill  to give only general principles and little detail. This further weakens the scrutiny such Bills deserve, leaving the main details to be addressed through secondary legislation.

The Brexit experience of the Fixed Term Parliament Act 2011, is a case in point. The Act replaced the prime minister’s request, under the prerogative, for the Monarch to grant a dissolution[40] of Parliament illustrates the dangers of legislating on a complex matter with some haste. The intention was that the 2011 Act would ensure continuation of the coalition government under Mr Cameron. A major short coming was that the Act lacked a suitable sunshine clause to limit its duration. Under the Act, dissolution may be granted through a vote by MPs and  requires two thirds of all MPs ( not simply those voting)  for an election to be held between the end of the five year period set by the Act for elections. Since the 2011 Act was passed there have been three such elections, 2015, 2017 and 2019, all having to be agreed between government and the opposition, against a continuing threat that backbench MPs could object and  veto  the government’s intentions as well as the actual date of the election. The option of amending the Act was also problematic as it is wholly dependent on the Government obtaining sufficient support of the opposition and its own party. The Act also applied to the taking of  a no confidence vote, that would normally trigger an early general election within fourteen days. In such an eventuality, the Act is silent on who would form a government and who might trigger a no- confidence vote.  In the light of the Brexit experience, there is common agreement that the Act requires amendment or repeal. An unintended consequence  of the Act for the Government of Mrs May was the PM’s inability to trigger a timely election that might have saved the government the embarrassment of defeat and made the passage of Brexit less contentious.

Brexit and the Courts

Brexit, supported by a popular referendum vote, gave rise to legal controversy  over the Government’s decision to use the ancient prerogative power to trigger Article 50, rather than face Parliamentary scrutiny. The history of prerogative powers is distinguished by conflict often fully unresolved and resulting in a considerable lack of legal clarity.  Blackstone’s definition of the prerogative was couched in very general terms “ a special pre-eminence, which the King hath over and above all other persons and out of the ordinary course of the common law, in right of his great dignity”. John Locke thought the prerogative “ was the power to act according to discretion of the public good[41].” Such powers were treated by subsequent writers[42] as defined in the common law in terms of nature and extent[43].  Modern theory of the prerogative[44] is substantially a legacy from the seventeenth century and the constitutional struggles of the Stuart period of Kingship. 

Sir Edward Coke’s (1552-1634) influence was perhaps the most decisive and set the trend away from the absolutist nature of Royal Power, to one of increasing judicial oversight. The judges in the Case of Proclamations defined the King’s powers as having no legislative authority without Parliament. This was followed by the Case of Prohibitions del Roy that the king “ could not judge except through the intermediary of his judges”. While Coke’s influence was considerable,  it is clear that different judicial approaches also prevailed, and accepted a greater latitude to the King[45]. Contemporary discussion of prerogative powers mirrors some of the earlier conflicts and uncertainties. De Smith noted how difficult it was to determine the question over the extent of the justiciability of the prerogative:

There are simply categories of questions, some but not all having a strongly political flavour, which they have decided for historical or policy questions, to treat as non-justiciable[46].

In contemporary times[47], prerogative powers have largely given way to statutory powers[48]. The precise limits of judicial review very much depend on the “justiciability” of the power being exercised[49]. Justiciability is a very vague concept, leaving much scope for judicial discretion.  Any exercise of prerogative powers by the Government also falls within ministerial responsibility to Parliament. 

Prerogative Powers: Miller (2017) No. 1 Can the Government trigger Article 50 by making use of prerogative powers?

Article 50 (TEU)  provides that any Member State might leave the European Union “according to its own constitutional arrangements”.   The use of the prerogative to trigger Article 50,  without prior Parliamentary approval proved controversial. Gina Miller, a business woman and pro-remain supporter, argued that such use of prerogative powers could only be triggered after the UK Parliament had given its express approval. Miller made an application to the Divisional Court which unanimously upheld her argument that Parliament’s authority was required to authorise the triggering of Article 50. The decision to appeal the Divisional Court was odd as it was well known, within government, that in advance of the  Divisional Court’s decision, the European Union ( Notification of Withdrawal) Bill was in the process of being drafted. On appeal, the UK Supreme Court upheld the Divisional Court and held that the government could only trigger Article 50 after having express approval from Parliament[50].

The question arises as to whether the Supreme Court in reaching this decision created new constitutional doctrines or approaches by placing constraints on the Executive’s use of the prerogative? The majority in Miller reasoned that as with the Case of Proclamations[51], the authority of Parliament is paramount and without its consent, the UK could not leave the EU. In reaching this decision, the majority were consistent with earlier case law that prohibited the prerogative from taking away statutory rights[52].  Article 50, had one significant aspect, namely that its effect was to dismantle an entire source and system of law in the United Kingdom that had become embedded in the legal system, with accompanying rights and obligations that changed the relationship between the individual and the state such as the Woking Time Directive. The majority reasoned, that such was the scale of change, only statute[53] could authorise  a departure from the various rights and obligations th assumed into UK law. Parliament had not in the 1972 European Communities Act envisaged any  significant changes in domestic law that would end the relationship with the EU. This could only occur by explicit legislation and not the prerogative.

Lord Reed dissented and argued that triggering Article 50  was part of a Treaty obligation and fell within a long-standing acceptance of the Executive’s use of the prerogative to sign and agree international Treaties. The question of existing rights and obligations created since the UK joined the EU was covered by section 2(1) of the 1972 Act that broadly accepted that rights under the Act could be revoked or amended and given effect under the Act.  International relations fell within the category of Executive discretion and the conduct of foreign relations- long-standing areas which valued “ unanimity, strength and dispatch” fell within prerogative powers. Underlying Lord Reed’s  analysis is  the assumption that the EU is no different from any other treaty relationship, and that the Executive is best used to make such decisions about withdrawal from a Treaty.

 The  majority’s approach  followed the leading case of Attorney General v De Keyser’s Hotel[54] in 1920 affirming that the prerogative is part of the common law, a residual power and not one that could endure for all time in its ancient form. The judges made a number of findings. Once executive power had been applied in an Act of Parliament, the Executive could no longer rely on the use of the prerogative. The judges role in construing the use of legal powers required a careful exercise of  judicial discretion in favour  of the subject .The majority  in Miller reasoned that the De Keyser principle indicated a predisposition to statutory over prerogative powers and that Parliament assumed that it would be consulted before any change would  be made to the status quo of membership, given the major consequences this might have for the rights of the subject.

Lord Reed considered that the De Keyser principle did not apply in this case as Parliament had not yet, at any rate, regulated the withdrawal from the EU, it only recognised the existence of Article 50 TEU, not the means of withdrawal.

Popular reaction to both the Supreme Court and the Divisional Court included newspaper headlines claiming that the Judges were “ enemies of the people” and arguing that the Judges had usurped the popular mandate of the people found in the  2016 referendum in favour of leaving. Social media became an active source of “hate mail” against MPs and remain supporters including Gina Miller. Political criticism of the judiciary reached unprecedented levels in opposition to the decision. The government’s defeat in Miller resulted in the European Union ( Notification of Withdrawal) Act 2017, passed within a few days of the Supreme Court decision.

 The Miller decision attracted a wide range of academic opinions[55], some claiming that it broke new ground in the role of constitutional scrutiny by the Supreme Court, while others claimed the case was wrongly argued or poorly justified. Interpreting the correctness of otherwise of the majority’s approach in Miller became tainted by the dispute between remain and Brexit. This overlooks the obvious and more mundane, that the Miller decision is largely in line with the orthodox Diceyan analysis of Parliamentary sovereignty and the use of prerogative powers. The reasoning of the unanimous decision on the Sewel Convention also fits that analysis by refusing to construct section 28 of the Parliament Act 1998 as creating a status for the Convention, the Court followed a long-standing tradition of not giving legal effect to a constitutional convention.

There were some missed opportunities in the Miller Case[56]. On the Sewel convention, there was authority  from the Canadian case law[57] that the Court could have explored the political significance of a Brexit withdrawal in the light of Scotland having voted to remain in terms of what kind or degree of consultation Scotland might have expected, even if  that consultation fell short of requiring consent of the Scottish Parliament. On the need for Parliamentary authority, there is the significance of the European Union ( Amendment) Act 2008 incorporating Article 50 of the Treaty of European Union which had already provided Parliament with the authority to leave the EU. Taken together with the 2015 Referendum Act, was the 2008 Act not sufficient to give authority to leave the EU? This question was not addressed by the Supreme Court but the Court might have considered  the implications of such a question in their reasoning. Finally, the  Supreme Court might have made clearer the  consultative nature of a non-binding referendum, the role of populism and support for the  democratic principles  of Parliamentary  consultation  underlining the constitutional role of ministerial responsibility to Parliament as a check on arbitrary power, including any use of the referendum. It is hard to take from Miller any guidance, if a Government in the future might wish to withdraw from the European Convention of Human Rights.

Prerogative Powers: Miller ( 2019) No 2 Can the courts review the exercise of the prerogative to prorogue Parliament?

The second Miller case, also involved a legal challenge to the government’s use of  prerogative powers, this time, to prorogue Parliament. The Supreme Court unanimously held that the prorogation of Parliament for a period of five weeks was unlawful, void and of no legal effect. The first question is, whether or not,  the prorogation of Parliament is justiciable?  The answer was unanimously agreed by all eleven justices, the one and only judgment delivered by Lady Hodge. Notably, Lord Reed, who dissented in the Miller 2017 No 1 case agreed with the unanimous decision, that the government’s decision to prorogue Parliament was null, void and of no legal effect. The Supreme Court overturned an earlier Divisional court decision but upheld the Scottish Court of Session’s decision in Cherry. Unsurprisingly, academic reaction to the decision was spilt with some in support[58]   with adverse criticism by others,[59] including the claim that the decision was “unconstitutional[60]”. The government was strongly critical of the Supreme Court’s decision and accused the Supreme Court of making political rather than legal decisions suggesting that in the future political decisions should be immune from judicial review and that the powers of the Supreme Court would come under review at some future date by the government[61].

The justiciability of prorogation has divided opinion.[62]  Contemporary case analysis in the 1985 decision in GCHQ[63] drew a distinction between judicial recognition of the existence of a prerogative power and the question of having to offer justification. Opinions divided on the latter being reviewable while the former was accepted as reviewable. Significantly, the majority, Lords Diplock, Scarman and Roskill emphasised the need for evidence to justify claims made by the Minister, but Lord Diplock had some reservations  of the need to give reasons in the area of national security, leaving some doubts as to the level of judicial scrutiny available and leaving the possibility that certain matters were non-justiciable.   In the GCHQ case, the court accepted  the Government’s claim that “national security” justified a ban on trade unions at GCHQ, the government’s main intelligence  centre. Such justification was accompanied by ex gratia compensation paid to workers for the abandonment of their trade union rights.

However, in the GCHQ case Lord Roskill suggested that there were certain powers that were non-justiciable including the dissolution of Parliament. Dissolution needs to be distinguished from prorogation. The former is where Parliament is brought to an end and a General election is called. However, the latter, prorogation, does not permit either House to be recalled.  Prorogation also brings to an end the current Parliamentary session with the loss of Bills, unless specifically carried over.  Parliament’s consideration of secondary legislation is suspended and select committees may not meet, though they can continue limited inquiries. However, the government can exercise its law making powers to make regulations.[64] Undoubtedly the period of prorogation reduces the influence of Parliament over the way is country is governed, This means that both Houses are unable to formally debate government policy and legislation, submit parliamentary questions for reply by government departments, or scrutinise government activity through parliamentary committees or introduce legislation. Normally prorogation is no more than a formality and without much political dissent, the implications is that Parliament gives it tacit consent.[65] Legally, Parliament is unable to prevent a prorogation but it is possible for Parliament to replace the prerogative through legislation such as the Fixed-term Parliaments Act 2011. Though there are financial consequences  of prorogation, since a government might run out of supply as it would not be able to pass votes on account. This may limit the time for prorogation.

  The question is whether the category of non-justiciability applied to prorogation in Miller 2019 No 2? The Supreme Court considered what might be the limits of prerogative powers. The answer may be gleaned from the key historical developments of the prerogative[66].  In the past the prerogative was used to grant immunities to the Crown and potentially unfettered powers.  Over the years, the courts considered Parliament’s powers should not be threatened through  the use of prerogative powers which, they held, could be limited by the common law and statute. The result was that the courts recognised that Parliament had exclusive powers of taxation, and  that the prerogative could not override statutory powers. It was also settled that there could be no new prerogatives and the extent of existing prerogatives could be settled by the courts.

 Limiting the use of prerogative powers in this way was  a notable constitutional achievement that helped define parliamentary sovereignty while also recognising the role of Parliament in holding government to account[67]. Both aspects, sovereignty and accountability, were adopted by the Supreme Court for their reasoning in Miller 2019 No 2. The Supreme Court reasoned that the use of the prorogation power challenged both aspects of Parliament’s roles. Sovereignty because Parliament was unable to meet and vote  or pass legislation, and accountability, because Parliament was deprived of the opportunity to scrutinise the government over its policies. The two roles are inextricably linked.

 Contemporary, judicial attitudes to the prerogative reflected the view that whenever any public powers are being exercised, statutory or prerogative, both should be subject to the same standard  and intensity of review.  In the Miller (2019) No 2 case the Supreme Court set the limit upon the prerogative prorogue  on the principle of legality namely that it  .. will be unlawful if the prorogation has the effect of  frustrating, preventing , without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the Executive. In such a situation the court will intervene if the effect is sufficiently serious to justify such an exceptional course”[68]. Placing the review of the prerogative on the same par as discretion exercised under a statute sets the terms of review as well as the rationale for the decision based on the primacy of the courts to determine the legality of matters raised in the courts. Two  background considerations  that set the context of the Supreme Court’s decision are relevant. The first, as amply demonstrated in the earlier discussion above, a minority government had been defeated in successive attempts to gain Parliamentary support which at that time was not forthcoming and that de facto the government of the day had lost the confidence of Parliament. Second, the government was unable to sign any affidavit certifying reasons for the exercise of the prorogation powers. The latter may have tipped the balance the other way – if a reasoned opinion justifying the government’s position had been advanced. On the basis of Wednesbury[69] unreasonableness such reasons might have been accepted as a justification. Arguments that the Supreme Court was acting in an unconstitutional fashion have little historical support as courts have invariably strayed into constitutional conflicts and asked to determine the legality of actions by one side or another[70]. 

Has Brexit resulted in new constitutional theories or doctrines?

The question of how to assess whether the courts in the UK have developed new specific constitutional theories or doctrines in addressing the issues raised by Brexit falls to be answered. The answer may well disappoint those who seek a new and possibly far reaching normative answer. The reality is much more mundane[71]. Viewed through the law of the prerogative, both Miller 1 and 2 have been subject to close scrutiny and criticism. Both cases are consistent with a long- established constitutional and judicial pathway of reviewing prerogative powers on the same basis as statutory powers. In both cases Parliament was given sovereignty and legal priority, not the Government of the day. The question raised by the devolved nations on the Sewel Convention under the Scotland Act 2016, Miller 1 rejected any special status to be accorded to constitutional conventions, even when such a Convention was  recognised in a statute, fully in keeping with the orthodox Diceyan view that conventions should not be given any legal enforceability by the courts. The reasoning  in Miller 1 follows the reasoning  in HS2 namely that  a significant statute, the European Communities Act 1972 should not be devoid of effect by the use of the prerogative. Similarly, consistent with the principles of ministerial accountability, Miller 1 prioritises Parliament in its EU scrutiny functions  over the Executive. It is hard to distil new or novel underlying principles that distinguishes Miller from other decisions[72].

 Both Miller 1 and 2 are unlikely to set new precedent  on the use of prerogative powers as the particular issue of leaving the EU is not likely to recur again and it is highly unusual to withdraw from a Treaty of such magnitude and significance. Parliament, is surely the most appropriate forum to resolve closely contested political choices that arise from EU membership as will be the case when considering what will be retained on leaving the EU.

 Miller No 2 is in line  with some contemporary cases, but without extending their analysis, or developing their line of reasoning. In 2002, in the Thorburn v Sunderland City Council, Lord Justice Laws acknowledged that parliamentary sovereignty was a principle of the common law, reviewable by the courts, within the category of constitutional importance that might include the European Communities Act 1972, the Human rights Act 1998 and the statutory framework for devolution. In the case of devolution, far from resisting this approach in the Scotland Act 1998 the Scottish Parliament was made permanent, further signifying the special status given to Scotland.  Since Factortame (no 2)[73] when EU enjoyed primacy over domestic law, this created a hierarchy of laws including the existence of what Laws refers to as “ constitutional statutes. In 2005 in Jackson,[74] a case involving a challenge to the validity of the 2004 Hunting Act passed under the procedure set out under the Parliament Act 1949 further confirmed the existence of a hierarchy of Acts. Lord Steyn and Lord Hope both observed that  parliamentary sovereignty was “ a construct of the common law,” thereby transposing  Dicey’s doctrine of the sovereignty of Parliament into contemporary times. The “ absolute” nature of sovereignty is qualified in terms of any attempt to “ subvert” the rule of law. This line of reasoning has continued in the Axa case[75] in 2011, on the legality and incompatibility of acts of the Scottish Parliament. The  Court held that the rule of law enforced by the courts was the “ ultimate controlling” factor on which the constitution is  based.

In HS2  the Supreme Court[76] recognised that various significant and fundamental constitutional statutes could not be impliedly repealed, and that a statute, the European Community Act 1972, should not be impugned to have no effect by the use of the prerogative.

It is wrong to assume that Miller 1 and 2 have set in train an expansionist judicial bid for legal rules to overrule political choices. Instead the evidence appears to suggest the contrary. There have been other Brexit legal challenges[77] but most have been unsuccessful, and also highly predictable in the classification of non-justiciable issues because of the underlying political issues raised by the challenges.  For example, a  judicial review challenge from a crowdfunding group campaigning to halt Brexit negotiations was rejected because it raised highly political issues that were not justiciable[78]. Similar reasons were advanced in refusing a challenge in April 2019 by the English Democrats claiming that Article 50 was illegal[79]. There were many more similar cases but all failed to gain any success in the courts.

In terms of normative theory, Ewing neatly summarised the existence of a political constitution with a preference for governments to be held accountable in a political arena rather than through the legal process There is an alternative approach resting on the existence of a legal constitution that advances accountability in the courts under legal restraint.[80]

  This may provide some promise to those who argue that Miller 1 and 2 offer an expansionist view of the juridical and legal constitution triumphing over the political constitution.  Little guidance may be gleaned from both cases that in any clash between the Executive and the courts, the courts would fail to follow the Executive if needed and avert a constitutional crisis. More likely than not the courts will exercise self-restraint for Parliament’s authority. Undoubtedly judicial oversight has undergone noticeable changes in the past twenty years, partly because of the growth of legislation particularly through the Human Rights Act 1998. A more active use of judicial review and a greater public awareness of the role of judges than in the past is mor evident. Brexit has given greater visibility to such developments as well as a public perception that legal controls over the executive have incrementally increased proportionate to greater legal and judicial controls.

Conclusions

The Covid-19 epidemic in 2020, has conspired to overtake Brexit in national significance, as the pandemic with resultant  health and economic crisis, serves to re-calibrate what matters most and what will have enduring effect. In common with the history of medieval plagues Covid-19 will undoubtedly adjust the status quo, realign law, the state and how people are governed. Covid- 19 has restored technical expertise to its importance. Populist[81] ideology  is likely to be reinvigorated  as injustices become apparent  by the revelation of deep-rooted startling inequality through the pending economic recession.

 Brexit is not a single event but a continuous process. The UK existed the EU at the end of January 2020 and the transition stage is time-tabled to be completed by the end of December 2020, with considerable uncertainty as to the agreements that will be reached if any for the future relationship. De Smith writing in 1973 anticipated that the UK’s accession to membership of the European Communities as “entailing a major reappraisal of basis constitutional doctrines” including the question of obedience to the most recent Act of Parliament when a manifest inconsistency might arise. The Factortame [82]case fulfilled this expectation. He also predicted the readiness of the courts to draw adverse interference from failure to give reasons for decisions[83].

Historians of the seventeenth century might find Brexit a modern example of the process  of  continuous adjustment of constitutional norms to  accommodate new sources of power, politics and authority. In a minor way that process has already begun in the UK because of Brexit. The referendum result has challenged the way elected MPs view their role and purpose.

Two aspects of Brexit’s direct impact on the constitution are in the use of constitutional conventions and in the use of prerogative powers. Any attempt to codify each might only result in greater powers to the executive, thereby replacing political controls with legal ones. This would be the default position of any government anxious to maintain its residual discretion. Paradoxically, this may create a greater expansion for the judicial role, something that might be resisted, at the expense of legislative checks and balances through parliamentary scrutiny.  Another, perhaps, unintended consequence of Brexit is that executive controls through a plethora of Henry VIII clauses have given greater control to the Executive than before Brexit under the European Union ( Withdrawal) Act 2018.  How long lasting will all this be for the UK’s constitution? Future historians are likely to relegate Brexit to the same category of constitutional development that historical study ascribes to the period of the Stuarts, noting its continuing constitutional influence and lasting significance in the power relationship between, then the King, parliament and the courts. Contested accounts prevail as to who gained and lost and the legitimacy of the winner’s victory.

The constitutional reform debate has also been re-ignited by Brexit. One possibility is to take the opportunity of dissatisfaction over Brexit to reform Parliamentary procedures and/ or to consider the merits of a written constitution. The latter is advanced as a means of clarifying the role and function of each element – the legislature, the executive and the judiciary[84].  The Government has already signalled a review into the role of judicial review and the Supreme Court, that has yet to be established and its terms of reference announced.

John McEldowney, Professor of Law, University of Warwick

[1] See: Paul Craig,” Constitutional Principle, the Rule of Law and Political Reality: The European Union ( Withdrawal) Act 2018” (2019) 82(2) MLR 319-366.

[2] R.( On the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 ( Admin) and [2017] UKSC 5.

[3] R ( On the application  of Miller) v The Prime Minister and others [2019] UKSC 41

[4] P. Norton , ‘Resisting the Inevitable? The Parliament Act 1911’, (2012) Parliamentary History, Vol. 31 (3), pp. 444-59.

[5] A. V. Dicey ( 1835-1922) See:  A. V. Dicey, Law of the Constitution London: Macmillan 1885 and A. V Dicey, Comparative Constitutionalism Oxford, vol 2 2013, p. 149.

[6] A. V Dicey,” Ought the Referendum to be introduced into England ? (1890) 57 Contemporary  Review 489., R. Weill, “ Dicey was not Diceyan” [2003] CLJ 474.

[7] A. V Dicey, A Leap in the Dark  2nd edition  London: 1893 A. V Dicey and R. S. Rait, Thoughts on the Union between England and Scotland London: Macmillan, 1920. See: W. Molyneux, The Case of Ireland being bound by Acts of Parliament in England, Pamphlet Dublin, 1688.

[8]  See: R.A. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist, London: Macmillan, 1980 pps 35, 103-4 and 235-6. A. V Dicey, Law of the Constitution London: Macmillan, 1893 chapter 3. Also see: Dylan Lino, “ The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context” (2018) 81(5) MLR 739-64.

[9]  A. V Dicey, Comparative Constitutionalism Oxford, vol 2 2013, p. 147

[10] In 2011 on the use of an alternative vote system to replace first past the post electoral system. Also in 2011 o give more powers to the Welsh Assembly. In 2014  a referendum to give more power to the Scottish government through an independent state which was narrowly rejected .

[11] An exception under the European Union Act 2011 for a binding referendum was never held. The Northern Ireland Act 1998 provides for a form of referendum that is imposed on ministers depending on the outcome.

[12] See the evidence to the  House of Lords Constitution Committee, Referendums in the United Kingdom, 12th Report, Session 2009-10, HL Paper 99, London: The Stationery Office.

[13]  Similar political splits came with the then Labour Government before the referendum in 1975 to modify terms of UK membership agreed earlier by the conservative government in 1972.

[14] See: Bernard Donoughue, Downing Street Diary  17,378,581 ( 67.2%) voted yes and 8,470,073 (32.8%) voted no. London: Jonathan Cape, 2005.p. 403. The then Labour Prime Minister Harold Wilson remained euro-sceptic.

[15] Jan-Werner Muller, “The people must be extracted from within the people: Reflections on Populism” Princetown. Ernesto Lacleau, On populist Reason London: Verso, 2005. Also see: Andrew Arato, “ Political Theory and  Populism, Social Research vol. 80 (2013). See: Nicola Lacey, Populism and the Rule of Law Working Paper 28 London School of Economics ( January 2019) Katrina Forrester, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy Princeton: Princeton University Press, 2019.

 

[16] Heather Boushey, Unbound, Harvard University Press, 2019 See the  United Nations Human Rights Council Visit to the United Kingdom of Great Britain and Northern Ireland: Report of the Special Rapporteur on  Extreme Poverty and Human Rights 22nd May 2019.pages 1-4.

[17] One of the most compelling accounts is Ėdourd Louis, Who Killed My Father, Penguin, 2018.

[18] See: J. F. McEldowney, “ The Constitution and the Financial Crisis in the UK: Historical and Contemporary Lessons”   in Xenophon Contiades, Constitutions in the Global Financial Crisis London Ashgate, 2013.  pp. 167-194.

[19] House of Commons Library Briefing papers, Migration Statistics SN06077 ( 11th December 2018)

[20] Katrina Forrester, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy Princeton: Princeton University Press, 2019.

[21] P. Norton, Governing Britain: Parliament, Ministers and our ambiguous Constitution Forthcoming  Manchester: Manchester University Press, 2020 chapter 4 and 5. Hereinafter Norton. I am grateful for the opportunity to read an advance copy of this excellent book.

[22] Examples include the 1932 vote on tariff protection, the 1975 European Communities referendum and in 1977 on the second reading of the European Assembly Elections Bill. More recently it was suspended in the 2011 referendum on electoral reform by both members of the coalition government. It was also suspended in the 2016 referendum. See Norton  chapter 4

[23] The European Union ( Notification of Withdrawal) Act 2017 see the R.( On the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 ( Admin) and [2017] UKSC 5.hereinafter Miller (2017) decision discussed in detail below.

[24]  Previously, a Northern Ireland case, in a judgment delivered by Mr Justice Maguire in McCord’s ( Raymond) Application [2016] NIQB 85 had rejected the attempt for judicial review of the UK’s government decision to leave the EU and trigger Article 50 regarding the matter as non- justiciable.

[25] R.( On the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 ( Admin) and [2017] UKSC 5.

[26] This is of course consistent with Dicey’s view that conventions were not legally enforceable but moral and political understandings. See: A. V Dicey, An Introduction to the Study of the law of the Constitution London Palgrave 10th edition ( ECS Wade editor, 1959) pps 39 -40

[27] See the analysis offered by K. Ewing, Brexit and Parliamentary Sovereignty”(2017) 80(4) Modern Law Review 685-745. At p.711

[28] John Bercow, Unspeakable London: Weidenfeld and Nicolson, 2020 pps. 372-3. Also see Norton , op. cit. chapter 4.

[29]  On the 12th March 2019  defeat by 391 votes to 242 and on 29th March 2019 by 344 votes to 286.

[30] Erskine May, Parliamentary Practice London Butterworth   p. 267

[31] House of Commons Library Briefing Paper extending Article 50: could Brexit be delayed? Number 8496 ( 21st March 2019).

[32] On 14th February all amendments to a government motion noting ongoing discussions and the motion itself was defeated.

[33] Norton op. cit chapter 4.

[34] Proposed by Sir Oliver Letwin and passed by 312 to 311 votes.

[35] See the EU (Implementation) Act 2019.

[36] One exception is the successful use of e- Petitions allowed the public to trigger a wider form of discussion in Westminster Hall and  a wide preparation of material and discussion, including the House of Commons Library Briefing Papers and Information Packs

[37]Political and Constitutional Reform Committee, House of Commons (2010), Fixed-term Parliaments Bill, Second Report, Session 2010-12, HC 436, London: The Stationery Office.  Political and Constitutional Reform Committee House of Commons (2013), The role and powers of the Prime Minister: The impact of the Fixed-term Parliaments Act 2011 on Government, Fourth Report, Session 2013-14, HC 440, London: The Stationery Office.  The House of Lords Constitution Committee 2010 , Fixed-term Parliaments Bill, 8th Report, Session 2010-11, HL Paper 69, London: The Stationery Office.

[38] Erskine May, Parliamentary Procedure and Practice edition London  also see Redlich, J. (1908), The Procedure of the House of Commons: A study of its History and Present Form, Vol. 1, London: Archibald Constable.

 

[39] House of Lords, Select Committee on the Constitution 16th Report of Session 2017-19 The Legislative Process: The Delegation of Powers HL Paper 225 para. 2.

[40]  B. S. Markesinis, The Theory and Practice of Dissolution of Parliament, Cambridge:

Cambridge University Press, 1972.

[41] J. Locke, The End of Civil Government  chapter 14

[42] See: J. Chitty, A Treatise on the law of the Prerogatives of the Crown, 1820.

[43] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 6

[44] See: Bancoult( no 2) [2008] UKHL 61 in which the Order in Council prohibiting  native Chagos islanders to return to their home were considered by the House of Lords as falling within judicial review.

[45] For example in R. V Hampden  Croke. J  in his dissent relied on the absolutist power of the Monarch. The theory of the prerogative  was further discussed. In Bate’s case allowed the king the right to raise duties to regulate trade rather than raise revenue and the courts could not look behind the King’s statement of motive. In Darnel’s case allowing the detention of prisoners to pay a debt for a loan required under the Privy Seal, broadly favoured the King allowing the prisoners to be remanded. In Hampden’s case, drew much greater clarity from the judges that  if the King were allowed to levy taxation ( ship-money) without Parliamentary consent, this would inevitably leave Parliament without authority.

[46] De Smith,  Judicial Review of Administrative Action London: Stevens and Sons, 3rd edtion , 1973,p. 255. Also see G. Sawer, “ Political Questions” (1963) 15 University of Toronto L.J 49.

[47] See: House of Commons Library Briefing Paper, The Royal Prerogative  Number 03861 ( 17th August 2017).

[48] The Constitutional Reform and Governance Act 2010 codified the convention applied since 1924 on the ratification of treaties, giving the House of Commons a veto over treaties. The same Act made the appointment and regulation of the civil service to be on a statutory basis replacing the prerogative powers of appointment.

[49] See Bradley, Ewing and Knight, Constitutional and Administrative Law London: Longman 2015 pp 260- 1.

[50] R.( On the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 ( Admin) and [2017] UKSC 5.

[51] (1611) 12 Co. Rep 74.

[52] Ibid.

[53] It is useful to look at R( On the Application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 ( admin). Section 12 of the European Parliamentary Elections Act 2002 preventing any Treaty from increasing the powers of the EU Parliament without the approval by the UK Parliament. The Court rejected the argument that this required a referendum and this matter had already been covered under the European Union( Amendment ) Act 2008.

[54] [1920] AC 508.

[55] See the Special Edition to  [2018]Public Law . Paul Craig, “ Miller, Structural Constitutional Review and the Limits of Prerogative Power [2018] PL 48. Also see A special Section on R( Miller ) v Secretary of State for Exiting the European Union ( 2017 ) Modern Law Review pps 685 745.

[56] Contrast the analytical style of the Supreme Court in R( on the application of UNISON) v Lord Chancellor [2017]UKSC 51 to Miller . The Unison decision was truly pathbreaking in the way public law issue were integrated through a horizontal effect  into disputes between private parties. See Alan Bogg, “The Common Law Constitution at Work R( on the application of UNISON) v Lord Chancellor  ( 2018) 81(3) MLR 509-38.

[57]  See: the Supreme Court of Canada: Re Resolution to Amend the Constitution [1981] 1 SCR 753.

[58] Paul Craig, “The Supreme Court, Prorogation and Constitutional Principle” https://ukconstitutionallaw.org/

[59]Stephen Laws, http://judicialpowerproject.org.uk/stephenlawsthesupremecourtsunjustifiedlawmaking/; John Larkin, ‘The Supreme Court on prorogation and its justiciability’ http://judicialpowerproject.org.uk/johnlarkinthesupremecourtonprorogationanditsjusticiability/; 

Prorogation3.pdf . Martin Loughlin, ‘The Case of Prorogation, The UK’s Constitutional Council ruling on appeal from the judgment of the Supreme Court’ https://policyexchange.org.uk/wpcontent/uploads/2019/10/TheCaseofProrogation.pdf .

[60] John Finnis, ‘The Unconstitutionality of the Supreme Court’s Prorogation Judgment’, Policy Exchange, https://policyexchange.org.uk/publication/theunconstitutionalityofthesupremecourtsprorogationjudgment/ .

 

[61] The 2019 Conservative Election Manifesto included  See: The Guardian 22nd February 2020.

[62] Stephen Tierney, ‘Turning political principles into legal rules: the unconvincing alchemy of the Miller/Cherry decision’, http://judicialpowerproject.org.uk/stephentierneyturningpoliticalprinciplesintolegalrulestheunconvincingalchemyofthemillercherrydecision/ ; Richard Ekins, ‘Parliamentary Sovereignty and the Politics of Prorogation’, Policy Exchange, https://policyexchange.org.uk/wpcontent/uploads/2019/09/ParliamentarySovereigntyandthePoliticsof

[63] Council of Civil Service Unions v Minister for the Civil Service ( the GCHQ case ) [1984] UKHL 6

[64] That is under the negative resolution procedure.

[65] There are examples in Australia and Canada where prorogation has be made for explicit political reasons at federal and state levels.

[66] See A. Twomey” Article 9 of the Bill of rights 1688 and its Application to prorogation”  UK Const. Blog ( 4th October 2019).

[67] Also see: R. v Secretary of State for the Home department ex parte Fire Brigades Union [1995] 2 AC 513.

[68] Miller (2919) No 2. UKSC 41 at [50]

[69] Associated Picture Houses v Wednesbury Corporation [1948] 1KB 223.

[70] M. Detmold, ‘The Monarch in the Room’, U.K. Const. L. Blog (2nd Oct. 2019) (available at https://ukconstitutionallaw.org/)).

[71] R. Hazell “Out of court: Why have the courts played no role in resolving devolution disputes in the United Kingdom” Journal of Federalism 2007 p. 589.

[72]  See the controversial decision in  R (Evans) v Attorney General [2015] UKSC 21 and the discussion in M. Elliott, “ The Supreme Court’s judgment in Miller: In Search of Constitutional Principle  ( April 2017) Paper 23/2017 University of Cambridge Legal Studies Research Paper Series.

[73] [1991] 1 All ER 70.

[74] [2006] 1AC 267.

[75] Axa General Insurance Ltd., and others v Lord Advocate [2011] UKSC 46

[76] R (on the application of HS2 Action Alliance Ltd., v Secretary of State for Transport [2014] UKSC 307. Also see: Thoburn v Sunderland City Council [2003] QB 151.

[77] House of Commons Library Briefing Paper Number 8415, Brexit Questions in national and EU courts  ( 1st November 2019).

[78] R ( on the application of Webster) v Secretary of State for exiting the European union. ( June 2018).

[79]  The Queen on the application of the English democrats v Prime Minister and the Secretary of State for Exiting the European Uno  Case no C)/1322/ 2019.

[80] See Jonathan Sumption, The Trials of the State: Law and the Decline of Politics Policy London,  Profile Boks, 2019.

[81] The Economist 26th October 2019, p.79. Also see: Emmanuel Saez, Gabriel Zucman, The Triumph of Injustice London, 2019. Heather Boushey, Unbound, Harvard University Press, 2019 United Nations Human Rights Council Visit to the United Kingdom of Great Britain and Northern Ireland: Report of the Special Rapporteur on  Extreme Poverty and Human Rights 22nd May 2019.pages 1-4. House of Commons Briefing Paper, Poverty in the UK: statistics Number 7096 (5th September 2019).[81] Joseph Stiglitiz, The Price of Inequality: How Today’s Divided Society Endangers our Future  Pontifical Academy of Social Science Acta 19 Vatican City 2014. See: The Observer Review 30th March -1st April 2019. Paths from the Past: Historians make sense of today’s political turmoil.

[82] [1990] UKHL 7.

[83] S. De Smith,  Judicial Review of Administrative Action London: Stevens and Sons, 3rd edition , 1973, pps 7 and 8. Fin 18.

[84] Vernon Bogdanor, Beyond Brexit: The British Constitution   London: Hart Publishing, 2019


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