The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Miller case ([2019] UKSC 41) reached its zenith on Tuesday morning, with a most newsworthy outcome; a unanimous decision that Prime Minister Johnson's Prorogation of Parliament was unlawful, thus a legal nullity and of no legal effect (at para. 69 of the judgment). The UK Parliament, having been put illegally to sleep, awoke on Wednesday morning with collective amnesia, and emerged refreshed from a dreich shower like Bobby Ewing, to get back to work and to normality.

The timing of the judgment couldn’t have been more fortuitous for purveyors of constitutional law idioms, anecdotes and folklore - thousands of law freshers at dozens of university law schools across the four nations of the UK will be treated to a plethora of twitter feeds, bad puns and embarrassing GIFs of politicians by law lecturers trying to make sense of it all, all of them feeling a bit smug and secretly delighted that constitutional law is at last hip, happening and dare say, even sexy.

As I have discussed previously, (here, here and here) the Scottish courts and the English High Court received applications from aggrieved members of the public, legal experts and politicians, extremely worried about Prime Minister Johnson's received wisdom to prorogue Parliament for 5 weeks through September and October 2019, at a time of immense constitutional upheaval and crisis, given the impending deadline of Halloween and the horror of a No-Deal Brexit. At first instance in Scotland, the petitioners in Cherry lost, Lord Doherty in the Outer House of the Court of Session deferring to the Prime Minister and the UK government's lawyer in Scotland view that the matter of prorogation was a matter of high politics, not law and thus beyond the purview of the courts. Similar sentiments furth of the Forth, led the English High Court, unanimously, to hold that Gina Miller's Judicial Review application was also asking an impertinent, essentially non-justiciable question.

Legal orthodoxy seemed to point to these claims being closed down on this well-established maxim of non-justiciability. Case(s) closed.

On appeal in Scotland to the Inner House of the Court of Session, the triumvirate of Lord Carloway, Brodie and Drummond-Young, (now colloquially known in legal circles as the Inner House 3) unanimously overturned the opinion of Lord Doherty in the lower Outer House. The egregious nature of the Prime Minister's decision meant that the matter was justiciable. It was a legal question: The questioning of an improper use of the royal prerogative.

The Supreme Court has largely vindicated the view of the Inner House 3, albeit with some differences of opinion (see Professor Mark Elliot's blog here). The Supreme Court, in a very rare show of absolute solidarity, made all the more amazing by the fact that the decision was made by an 11-strong bench, decided unanimously that the Prime Minister had acted unlawfully in advising the monarch to prorogue Parliament.

It is fair to say that the judgment, like Brexit itself (although the case is only indirectly concerned with Brexit), has divided the legal community, the general population and the politicians. It has polarised opinion like no other case before it.

At any level, the judgment is a remarkable one. However, its remarkableness is difficult to define and pin down, however the main reasons the opinion is remarkable are as follows.

First, as mentioned already, the judgment was a unanimous decision by 11 of the most eminent justices this country has produced. In the only other 11-strong bench case, the related case of Miller 1 ([2017] UKSC 5), the best the judges could agree on was an 8-3 split, with the dissenters even divided on their reasons for dissenting. In the Torture Evidence case (A (FC) v Secretary of State for the Home Department ([2005] UKHL 71), a seven strong bench of the House of Lords came close to being unanimous on all aspects of that case. The ability of Lady Hale to get another 10 strong willed, independent jurists to coalesce around a particular view of the facts and of the law is indeed remarkable.

Second, the judgment is a document of elegance, clarity and brevity, with a distinctly narrative feel. For such a constitutionally significant case, the text is remarkably light in size and in deployment of weighty legal justifications. The judgment is only 24 pages long and constitutional law academics, if marking this legal script, would berate the authors for only using the bare bones of the vast corpus of judicial precedent that was available. The Inner House 3 and the advocates before that house (and when in the Supreme Court), conversely, drew on a vast well of legal authorities to justify their stance. That judgment extended to 68 pages and was replete with judicial and historical precedents. The Supreme Court was content to produce a narrative judgment, drawing on grand constitutional principles and expectations.

The question beget by this brief, elegant and decidedly law-free judgment is why is it structured so?

The answers are not hard to discern and determinedly lie in the political sphere.

The Supreme Court, almost contemporaneously with the Cherry/Miller case, will celebrate its 10th anniversary in the next few weeks. It began life on the 1st of October 2009. It is fitting that the Supreme Court made such a historic judgment on the eve of its 10 year anniversary, for the judgment is a fine example of the court flexing its constitutional muscles. The Supreme Court is transforming itself into a Constitutional Court and with the Cherry/Miller case, the court has burnished its constitutional court credentials.

A defining feature of any constitutional court is that it decides decidedly political cases that deal with high politics and the inner workings of the constitution of that state. To that extent, the Supreme Court of the United Kingdom, absolutely performed a constitutional court function on Tuesday morning.

The judgment had to have the look and feel that it did for a number of important political reasons.

The judgment had to be unanimous because in this febrile environment, any dissent in the Supreme Court would be seized upon by Brexiteers and detractors that the decision was legally uncertain, incorrect and the will of arch Remainers. Thus, the justices were determined to present a united front that sent a powerful message that the highest members of the judiciary were at one on this matter, irrespective of their political views, of their particular areas of legal expertise and their longevity on the highest court of the land. The judges chose to put forward a coherent, decisive legal view to try and provide legal certainty for the whole country.

Further, these two cases that were sent to the Supreme Court posed an existential threat to the United Kingdom. The Scottish Court had unanimously held that the matter was justiciable and that on forensic investigation, the Prime Minister had acted unlawfully. Diametrically opposed to that, the English High Court refused to adjudicate on the matter, citing classic cases on non-justiciability. Scotland overwhelmingly voted to Remain in the 2016 referendum and England narrowly voted to Leave. These facts would have played heavily on the minds of the 11 justices. To simply dismiss the Inner House unanimous decision, expressly overrule that decision and affirm the English High Court view would be to imperil the unity of the United Kingdom. In such a situation, Scottish politicians, jurists and the general Scots populace writ large would arguably be more empowered and more likely to question their place in the United Kingdom. Remarkably, the Supreme Court drew heavily on the original view of the Inner House 3, simply stating that the advice of Boris Johnson to the Queen to prorogue Parliament…' was unlawful, null and of no effect and should be quashed.' (para. 69 of the judgment). Implicitly, the UK Supreme Court was simply endorsing the view of the Inner House and adopting the extensive legal declaratory power and jurisdiction of the Supreme Court of Scotland. The judgment, in so doing, managed to cleverly bring the UK jurisdictions closer together, neatly avoiding legally complex and technical questions on the nature of remedies north and south of the border.

The narrative nature of the judgment was also remarkable but entirely reasonable given the unique background to the case. The three day legal hearing from last week was eagerly watched by people across the globe and the judgment has been downloaded thousands of times and it made global news headlines. It was obvious that people were immensely interested in the case, and as such the justices would have been keen to make the law as accessible as possible, and the most obvious way to do so would be to demystify the law and use everyday, ordinary language. Alongside this imperative, the immense pressure to resolve the case quickly meant that the justices were under great time constraints, resulting in a pared down judgment that merely discussed the nub of the arguments. Further, the fact that the judgment would be desired to be read way beyond Westminster, Whitehall and the Windsor family, necessitated the rejection of excessive legalese and obscure references to historical events and laws.  The judgment is a masterful, accessible constitutional lecture on the grand overarching themes, laws, rules and conventions that constitute the living UK constitution.

The judgment has its detractors from all sides. It is too simplistic. It is too political. It is too lite on the law. It is too glib. It is interfering in politics. All of these criticisms can be legitimately levelled at the judgment. The strongest criticism is that of interference in politics. However, the judgment can be defended exactly on that basis. Parliamentary sovereignty was placed at the apex of the judgment. Alongside parliamentary sovereignty, the court was concerned to place parliamentary accountability at its side, an equal partner in the UK constitutional framework. In so doing, the court thus justified its interference in questions of politics. The current political impasse has illustrated the ineffectiveness of the parliamentary accountability process in holding the Prime Minister and the wider executive to account. Therefore, for the court to simply defer to parliamentary accountability would be a dereliction of duty, particularly in a situation where it is clear that these political mechanisms, both currently and in the near future, would manifestly fail to produce a satisfactory resolution. The court was thereby forced to act to restore equilibrium to the tripartite separation of powers, the central tenet of the UK constitution. In so doing, the court also gave powerful effect to a central tenet of the Leave campaign from 2016: the Supreme Court of the UK took back control and gave Parliament back its sovereignty.

Barnard & Peers: chapter 27

Photo credit: Pamela Ewing

Who exactly will ‘take back control’? Parliament vs executive after Brexit and the ‘Great Repeal Bill’

Steve Peers

A key issue in the Brexit referendum campaign was the case for British democracy: that rules applying to the UK should be adopted by the UK parliament (or, as the case may be, devolved bodies and local governments; I’ll come back to devolution issues in a later blog post). But since the referendum result, it’s striking that many on the Leave side seem reluctant to give Parliament much of a role in practice. Having made a strong case for Parliament to make decisions affecting the British people, they suddenly find this argument less compelling when contemplating that Parliament might make decisions that they may not agree with. A bit like St. Augustine, they pray for the virtues of parliamentary sovereignty – but not yet.

While a lot of debate has focussed on whether Parliament should have a role in triggering Article 50 (the clause on the process of UK withdrawal from the EU), that’s actually one of four related issues: Who should trigger Article 50? Who should determine the form of Brexit? How accountable should the Brexit negotiations be? And who should control what happens after Brexit?  I’ll discuss each of these issues in turn, including a broader analysis of the ‘Great Repeal Bill’ just announced by the government as part of the fourth point.

1 Who should trigger Article 50?

As many readers will know, there are pending court cases on this issue. It’s clear that the referendum itself is not legally binding, since unlike previous cases like the 2011 referendum on voting rules, the European Union Referendum Act 2015 does not specify what happens in the event of a vote to Leave.  The government made a political promise to implement the result, but that is not a legal obligation.

The core legal argument is whether the official notification that the UK will withdraw from the EU is governed by the ‘Royal Prerogative’, which gives the UK executive the power to negotiate treaties and conduct foreign relations, or subject to Parliamentary approval, since Brexit will inevitably impact upon the European Communities Act (which is the main law giving effect to EU law in the UK) and other UK statutes. You can find the skeleton arguments tabled by both sides here; and see Mark Elliot’s analysis of the government’s pleadings.

Whatever view the courts finally take of the law, there’s an overwhelming political argument that Parliament ought to decide, given the huge impact upon the laws of the United Kingdom. If it comes to this, I don’t expect many MPs would actually vote to block Brexit, since the majority of UK constituencies voted to Leave, and they will be concerned about their re-election chances. Moreover, many of them likely believe it would be politically illegitimate not to respect the result of the referendum. Frankly, it’s unfortunate that many Remain supporters are unwilling to accept this political reality, and expend their energy on overturning the result, rather than engaging in a constructive debate about the least bad form of Brexit. Time to face facts: Bobby Ewing will not be back from the dead in your shower tomorrow morning.

So the more significant impact of any parliamentary vote on Brexit would be its potential impact on the next issue: who should decide what form of Brexit to take?

2 Who should determine the form of Brexit?

A majority of votes were cast to ‘Leave’ the EU. No other question was on the ballot paper. Various arguments were made in favour of Leaving the EU, some of them contradictory (ie from opposite sides of the political spectrum). It’s sometimes asserted that the Leave vote is a mandate to reduce immigration from the EU and to withdraw from the free movement of people to this end, but at least some senior Brexiteers used to argue that it is not a mandate to this effect.

So while the vote is a political mandate to leave the EU, it’s not a mandate for any particular form of leaving the EU. For instance, if the UK sought to leave the EU and retain membership in the European Economic Area (EEA), in order to keep full participation in the EU’s single market, at least on an interim basis (as discussed here) this would in no way contradict the referendum result. EEA members like Norway are not members of the EU, and do not participate in many aspects of EU law: fisheries, taxation, trade with non-EU countries, agriculture, the single currency, and many more.

Of course, some people object to the idea of the UK staying in the EEA. But they need to base their arguments on the perceived flaws of the EEA – and, if they are intellectually honest, on the comparative perceived strengths of any other form of Brexit. The argument that the British public ‘voted against staying in the single market’ is quite simply false.

This brings us to the question of who should make the final decision on what form of Brexit to pursue: the UK parliament or the executive? (Not forgetting, of course, that the EU side must also agree to the terms). The question of whether to stay in the single market has a huge impact upon the UK economy (see, for instance, the estimates of the Institute of Fiscal Studies on this point: Brexit on the basis only of participating as a WTO member would shrink the economy 4% as compared to staying in the single market). Moreover, it will have a huge impact on British law. Refusing to let parliament decide this issue is incompatible with its underlying role.

Of course, I would expect the executive to draft a proposed motion for Parliament to approve. But if Parliament is only willing to approve that motion subject to amendments, the executive should consider itself politically bound by the amended motion.  I’m not suggesting that Parliament should get the power to agree every word in the text of future UK/EU treaties before negotiations start, as if those treaties were Acts of Parliament. But it should have the power to approve the main thrust of the government’s negotiating position. If Parliament votes that the UK ought to negotiate to remain a full participant in the single market, the government must consider itself bound by that result. A clear statement of the government’s negotiation objectives, approved by Parliament, would also supply a degree of legal certainty to those doing business in or investing in the UK.

Some are concerned that Parliament would be tying the government’s hands too much, since there is a risk that some aspect of the government’s negotiating position will be unattainable. In such a case, the government could come back to Parliament and ask it to revise the motion, or failing that, to explain its inability to achieve all those negotiation objectives when it comes time for Parliament to approve post-Brexit treaties.  And that point brings us neatly to the process of negotiating and approving those treaties.

3 How accountable should the Brexit negotiations be?

Usually, it’s an executive power to negotiate international treaties. Parliament is involved at the end, if it’s necessary to amend an Act of Parliament, or adopt a new one, to give effect to a treaty. Since 2010, it also has the ability in effect to block the government’s ratification of a treaty, under the Constitutional Reform and Governance Act 2010. The government has made clear its unwillingness to be accountable during the negotiations, arguing that it will not be giving a ‘running commentary’.

However, there are important reasons why the Brexit talks should not be regarded as any ordinary treaty negotiation. Firstly, as noted already, EU law has a huge effect on UK law; it follows that Brexit will do also. Refusing to disclose any information to Parliament in that process would be to divest it (and public opinion) of any effective role in the debate about the negotiations.

In fact, there’s a relevant precedent for a bigger role for Parliament. Due to the important role of EU law in UK law, the House of Lords and House of Commons already have Scrutiny Committees examining the government’s negotiation of draft EU laws. In particular, the government reports back regularly to the latter committee on how negotiations over important EU laws are going. One might almost call it a ‘running commentary’.

Secondly, there’s a particular well-known feature of the Brexit negotiation process: the two-year deadline that applies once Article 50 is triggered. This means that Parliament does not face the ordinary choice between approving a treaty or the status quo; rather the choice will be between leaving the EU on the Brexit terms negotiated by the government and leaving the EU without any terms at all, which will also cause major transitional problems. For instance, would the UK have to release from prison, or refrain from arresting, fugitives who were the subject of a European Arrest Warrant issued by an EU Member State on Brexit Day?

Thirdly, there is no reason for secrecy on ‘negotiation tactics’ grounds once a text has been tabled to the other side. In effect, those cards are on the table already. On the other hand, it would damage the UK’s negotiation position to release notes which give the government’s fallback position: those cards are still face down. There will, inevitably, be some embarrassment if the UK government doesn’t obtain its initial negotiation position. But this is normal in any treaty negotiation, and the government simply has to prepare public opinion for this.

Fourthly, it would be odd if the UK parliament had any less a role than the European Parliament, which not only (like the UK Parliament) has to approve any final Brexit deal, but must be ‘immediately and fully informed at all stages of the procedure’ (Article 218 TFEU). As a recent post on this blog pointed out, there is EU case law clarifying these rights, as well as a ‘closed door’ procedure for MEPs to review texts.

4         Who should control what happens after Brexit?

This issue has come to the fore with the government’s announcement of a ‘Great Repeal Bill’, to replace the European Communities Act. First of all, some general points about this Bill. It won’t take effect until Brexit Day, so the UK will still be in compliance with its EU law obligations beforehand.  An interesting point is how the Act will deal with any EU laws adopted after it obtains Royal Assent, but before Brexit Day: logically, it should at least cover those which fall due for the UK to apply in the meantime. (My thanks to Graham Smith for raising this point).

Secondly, despite the title, the Act won’t actually repeal any substantive EU law, but just the opposite: it will keep all pre-Brexit EU law in force in the UK. But it’s not therefore a meaningless gesture, as some have suggested, as it will do several things: a) prevent post-Brexit EU law from applying to the UK; b) limit the legal effect of EU law in the UK’s legal systems (ie, EU law would presumably no longer have primacy over all other national laws in principle); and c) remove the role of the EU courts in interpreting that law. This raises some key questions: would the UK want a legal mechanism for adapting easily to post-Brexit EU laws that it wishes to apply? What would be the impact of pre-Brexit, and post-Brexit, case law of the CJEU on interpreting this law? How will the UK match the EU regulatory bodies referred to in EU legislation?  Despite those questions, though, the plan for the Bill does offer a great degree of legal certainty, as businesses and others know that there will not suddenly be a legislative vacuum as regards a big chunk of the law on intellectual property, data protection, environmental protection, and so on.

Thirdly, there are two other things that the ‘Great Repeal Act’ won’t do: a) it won’t affect EU laws that form part of UK law due to other statutes (such as the Extradition Act), although they will equally stay in force in much the same way as the EU law preserved by the Repeal Act; and b) it won’t bind the European Union (or, where relevant, non-EU states). Any EU law kept in force in UK form which relates to trade with the EU, or other UK relations with the EU (recognition of judgments, or return of asylum-seekers, for instance) will only have practical effect to the extent that the UK and the EU have reached an agreement to this effect.

Fourthly – and this is my main focus for now – the ‘Great Repeal Act’ will set out a process for repealing or amending that EU law retained by that Act as and when the UK wishes to do so. The key issue here is: will the government decide that, or Parliament? The government’s announcement makes clear that it wants Parliament to confer power upon it to make at least some of the decisions on repealing EU law.

Let’s be clear what’s at stake here. Acts of Parliament need to be approved by both the House of Commons and the House of Lords, following a process of several readings where there is a chance for public input and amendments. In comparison, ‘secondary legislation’ adopted by government (usually in the form of ‘Statutory Instruments’ or ‘Orders in Council’) cannot usually be amended by Parliament, and there’s little time for public discussion or parliamentary scrutiny that could influence amendments. Either of the two Houses of Parliament could veto draft secondary legislation, but this is rare.

Secondary legislation is used in other fields, and it was very frequently used to give effect to EU law in the UK.  So what’s the problem using it for repealing EU law? First of all, the very fact that secondary legislation was used so much to put EU law into place was a problem. It removed Parliament from having the role it would usually have over the adoption of the substantive laws in question. That was indeed one reason why Eurosceptics were critical of the EU for years. So using secondary legislation to overturn or amend those EU laws doesn’t solve that problem: it continues, even exacerbates it. Remember, as noted above, that the government’s negotiation of EU laws was always scrutinised by Parliament; this ameliorated the impact of the big transfer of power to the executive. But in principle, there would be no such mechanism to ameliorate the executive power to repeal EU laws after Brexit – unless a new form of parliamentary control of secondary legislation, involving some form of effective scrutiny and amendment, were developed.

Some might argue that the EU origin of these laws is inherently tainted, and so therefore a fast-track procedure to repeal them is justified. That argument is based on a fatuous misunderstanding of EU law propagated during the referendum campaign: that the UK is the passive recipient of laws adopted by ‘unelected bureaucrats’. In fact, as I pointed out in detail here, EU laws are adopted by elected ministers of Member States and elected Members of the European Parliament, and the UK government voted for them a huge majority of the time.  

Secondly, the government may well seek the power not only to fast-track repeal of EU laws which apply in the form of secondary legislation, but also those which are implemented by means of Acts of Parliament. Such powers are known as ‘Henry VIII clauses’, and are particularly controversial because they effectively overturn the role of parliament that led to the adoption of those Acts in the first place. In my view, such clauses should be rejected for the post-Brexit process as a matter of principle. If an EU law issue was deemed important enough while the UK was a member to enshrine in an Act of Parliament, it should be for Parliament to repeal or amend it.

On the other hand, it is probably not feasible to entirely rule out the use of secondary law-making to amend or repeal existing secondary legislation derived from EU membership. But Parliament should not give the government a blank cheque, for the reasons explained above. Rather, such powers should be subject to strict limits, either by means of a positive list (‘secondary legislation is only allowed in the following areas’) or a negative list (‘secondary legislation is allowed, except for the following areas’). In either case, there should be a ‘carve out’ for laws on workers’ rights and the environment, given their particular importance, as well as other issues where Parliament usually plays the main role.  

Conclusions

There’s no plausible argument that we need to destroy parliamentary democracy in order to save it. The Leave side argued for British parliamentary supremacy – not for ‘handing back control’ to our ‘unelected bureaucrats’. Parliamentary sovereignty doesn’t need fair-weather friends: it needs supporters who will take the opportunity of Brexit to strengthen it for reasons of principle, not undermine it for reasons of tactical advantage.

Photo credit: RadioTimes