What we can learn from the Supreme Court decision on Article 50

The Miller case teaches us about the British Constitution and exposes alarming ignorance from those at the top.

Jessica Simor QC
29 January 2017

Gina Miller speaking outside The Supreme Court in London after Britain's most senior judges ruled that Prime Minister Theresa May does not have the power to trigger the formal process for the UK's exit from the European Union without Parliament having a say. Photo: Press Association/Victoria Jones. All rights reserved.

Miller has been hailed as one of the most important Constitutional cases for centuries. That's saying something. Its obvious importance is in its direct consequence, namely that our elected representatives in Parliament will now be able to exercise their constitutional duty, as explained by Edmund Burke, to decide what is in the best interests of this country, taking into account the views of the people but ultimately, able to ignore it for the greater good.

But it has been important in three further respects. 

First, it has revealed the paucity of knowledge of how our democracy works, not just of citizens or newspaper editors but of MPs and indeed Ministers. The fact that the case took place at all, and the reactions to it, have exposed an astonishing level of ignorance. One has to ask how it is that the Prime Minister even contemplated not putting the question of departure before Parliament and not seeking a statutory power to trigger Article 50? Was this pure political expediency in breach of the Constitution or worrying ignorance? The comments of some MPs and even some long-serving Ministers in relation to the case, show that these people either do not know the core principles of our Constitution or wish to change them to achieve their own ends, by spreading untruths. This should ring alarm bells. 

Comments of MPs and long-serving Ministers show that these people either do not know the core principles of our Constitution or wish to change them to achieve their own ends, by spreading untruths. This should ring alarm bells. 

Secondly, it has provided widespread and beneficial exposure of the workings of our independent judiciary. The case showed to a wider public than might normally have been engaged, that Judges will not be cowed by politicians, ‘the majority’ (nowadays called ‘the people’) or newspaper editors and that the individual can uphold the Constitution, even in the face of sometimes violent and aggressive opposition.

Thirdly, it has provided important education as to how our unwritten Constitution works. The Supreme Court and Divisional Court set out the most fundamental principles of the sometimes opaque British Constitution. These are principles that every citizen should be familiar with; basic concepts that one might expect would be taught at school. On reading the Supreme Court majority judgment, and in particular paragraphs 40-59, one is given a concise but complete explanation of how the rule of law and Constitutional democracy developed and has been sustained in the United Kingdom.

The central and guiding rule in the British Constitution is Parliamentary Sovereignty. Parliamentary Sovereignty in the extreme sense expressed by Dicey, namely “the right to make or unmake any law whatsoever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” is no longer without limit (being subject to wider fundamental principles of human rights). Nevertheless, it remains the core principle that applies to the relationship of Parliament with the Executive. The Crown’s powers, exercised through the Executive cannot be used in a way that is incompatible with legislation and the common law, namely in a way that is contrary to the rule of law. The Judiciary, an independent pillar of our Constitution, will uphold the rule of law by ensuring in particular, that the Crown does not act unlawfully. In this case the legality of the proposed act, which the Court was asked to consider, was a decision by the Prime Minister to notify the Council of the EU that the UK intended to leave the EU and to do so, even before Parliament had decided that the UK should leave (the referendum was only advisory) let alone, conferred a power on the Prime Minister to initiate such a departure. The consequence of that proposed act would have been to alter laws passed by Parliament, most importantly, by the European Communities Act 1972, through which Parliament made EU law part of UK law.

the King by his proclamation or other way cannot change any part of the common law, or statute law, or the customs of the realm.” Edward Coke CJ, 1610

The principle that the Executive cannot alter law by way of ‘prerogative’ act goes back more than three hundred years and is set out conclusively in the Case of Proclamations (1610), where Edward Coke CJ said that:“the King by his proclamation or other way cannot change any part of the common law, or statute law, or the customs of the realm.” Thus, “the King cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law… that which cannot be punished without proclamation, cannot be punished with it.”

Interestingly, the Case of Proclamations refers to a free movement and free trade law of 1215 (the year of the Magna Carta) which conferred rights similar to those of the four freedoms enshrined in the EU Treaties. That law provided that:"ALL Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to depart out of England, to come into England, to tarry in, and go through England to buy and sell without any manner of evil Tolts, by the old and rightful Customs, except in Time of War.”

Coke CJ refers to Henry IV’s attempt to end that freedom by way of proclamation, that is, the exercise of the prerogative by the King, noting that its exercise was unlawful because it ended a freedom and right provided by law.

That control of the Crown’s powers to prevent the Crown altering law was finally enshrined in the Bill of Rights 1688, which confirmed that “the pretended power of suspending of laws or the Execution of Laws by Regall authority without consent of Parlyament is illegall“.

The former Minister (and once leader of the Conservative Party) Ian Duncan Smith did not agree with the Judgment. This seems to be because he does not recognise the third Pillar of our Constitution, the judiciary, as having a role in ensuring that the Executive does not act unlawfully. His comments suggest that he thinks Parliament is the only court that can control the Executive: “there’s the European issue but there’s also the issue about who is supreme – Parliament or a self-appointed court…This is the issue here right now, so I was intrigued that it was a split judgment, I’m disappointed they've tried to tell Parliament how to run its business. They've stepped into new territory where they've actually told Parliament not just that they should do something but actually what they should do…I think that leads further down the road to real constitutional issues about who is supreme in this role.”

Ian Duncan Smith is not only at least 300 years out of date, he is misguided about what the Court said. 

Ian Duncan Smith is not only at least 300 years out of date, he is misguided about what the Court said. The Court has not told Parliament what to do. It has ruled that the Crown, in the form of any Minister, cannot decide that the United Kingdom will leave the European Union. Parliament has to decide that. And if Parliament does decide that having consulted ‘the People’ it is in the best interests of the United Kingdom to leave the EU, then Parliament can give the executive power to initiate that departure. Parliament had the choice to make the referendum binding, that is, to give the ‘people’ the final decision as to whether the UK should leave the EU. It chose not to do so. That was a matter for it.

The decision to leave the EU is a momentous decision, now in the hands of our elected representatives. Some would have thought that collective consideration of its potentially extreme consequences may result in a better outcome than one taken by a narrow group of individuals beholden to one political party with its own issues. Those around the Cabinet table should cut the hubris and seize with open arms the possibility of sharing responsibility for a potentially catastrophic decision

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