Constitutional Law Group October 24, 2016 Europe, Judicial review, UK government, UK Parliament

Elizabeth Campion: Pay No Attention to the Man Behind the Curtain: Parliamentary and Governmental Power in the Wake of the EU Referendum

The case of Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) (“Santos“) was heard in the High Court this week by the Lord Chief Justice, the Master of the Rolls and Sales LJ. Santos has been called “one of the most important constitutional law cases ever decided”. The High Court – and presumably the Supreme Court by the end of the year – has been asked whether the Government’s prerogative powers will permit it to make the decision to leave the European Union and then notify this decision to the European Commission (the two stages are frequently conflated into a single “invocation” process). The case has been presented in some quarters as an attempt to prevent Brexit or overturn the referendum, but is in fact an attempt to increase Parliament’s involvement in the process of Brexit. The fact that a court order is being sought to order the government to involve a supposedly sovereign Parliament in such a crucial matter, in the country that “invented parliamentary democracy”, demonstrates the extent to which Parliament’s power has been circumscribed and undermined in recent years.

In purely legal terms, the decision is about the extent of a prerogative power of government, and if the court decides in favour of the Secretary of State, the result will be that the executive’s powers to repudiate a treaty (an action which only has immediate legal effect on the international/EU law plane) are confirmed. However, this litigation is taking place against a backdrop of a clash between the Government, citing a popular mandate deriving from the referendum vote in support of its agenda, and Parliament, whose claim to control and supervise the debate derives from the United Kingdom’s long history of parliamentary democracy. The outcome of the litigation could precipitate a disturbance in the precarious equilibrium between the legislature and the executive, transferring a decisive amount of power to the executive in practice.

The Gradual Erosion of Parliamentary Sovereignty

The United Kingdom, when governed by a government elected with a large majority, has been called an “elective dictatorship”, and this and other problems caused by the poor separation of powers and the weaknesses of parliamentary scrutiny of the executive are beyond the scope of this article. Lord Judge highlighted the ever-growing governmental encroachment on the legislative sphere of Parliament in a lecture he gave in April 2016 entitled “Ceding Power to the Executive: the Resurrection of Henry VIII?” Beginning with the revolution in 1688 which is now seen to have conferred supreme legislative authority on Parliament, he expressed his alarm at a number of ways in which Parliament is delegating its authority to the executive and, in so doing, undermining its own supremacy. Among these “self-inflicted blow[s], each one boosting the power of the executive” are the vast output of secondary law produced by the executive, the minimal debate and scrutiny undergone by statutory instruments and the increasing prevalence and potentially destructive influence of Henry VIII clauses in secondary legislation.

However, as Lord Judge acknowledged, delegated law-making is essential in the modern constitution simply because the range of areas in which detailed rulemaking is needed is so vast, and the necessary regulation so technical and specialised, that it would be simply impossible for Parliament to do it all. Neither can it rigorously supervise the work of the executive – Parliament has rejected only seventeen of the 170,000 statutory instruments laid before it in the past sixty-five years, and substantive debate of individual instruments is rare. Not only has it delegated responsibility for regulation downwards to the government, but it has also done so upwards to the European Union, to the extent that up to sixty per cent of UK law may derive from EU law in some way. Daniel Greenberg, Parliamentary Counsel at Berwin Leighton Paisner LLP, predicted before the referendum that the work of identifying, reviewing and reworking the existing body of EU-derived law would be “a civil service legal exercise on a scale that has not been encountered at any other time in our recent legal history.” As well as this, legislative and technical expertise in the relevant areas has been delegated to Brussels for many years, leaving domestic civil servants ill-equipped to make the large number of decisions that will need to be made in the coming years. It is hard to disagree with David Allen Green’s analysis: “under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from Parliament.”

“An Event Without Precedent” – Use of the Prerogative in the EU Context

Presuming that a notification under Article 50 (the definitive interpretation of which is a matter for the CJEU) is not reversible and that there will not be a majority consensus decision among the remaining 27 EU states to extend negotiations, once the notification is given under Article 50(2), the United Kingdom will leave the European Union two years later, whether or not arrangements have been made for the period after that in accordance with Article 50(3). Given that the two year time period is much shorter than that usually needed to achieve consensus on trade deals, if the UK government does manage to secure a deal and puts it to Parliament for a vote, there will be extreme pressure on Parliament to vote in favour of the deal to prevent the UK falling off the metaphorical cliff of Article 50(3). If the Government is allowed to make the decision and dictate the timing of the notification under Article 50, and Parliament is not given any decisive say in the negotiating plans before this is done or during the negotiations, the Government will essentially have a gun to Parliament’s head by the time there is a vote. While any vote and legislation (i.e. the putative “Great Repeal Bill”) will still be supreme over other forms of UK law, it is hard to describe Parliament as “sovereign” or “supreme” in any real sense in this scenario. Dicey’s view of a Parliament that can “make or unmake any law it wishes” does not map well onto a Parliament which can be put into a position in which it has the choice of passing law immediately or letting the country fall into crisis.

Constitutional theorists have analysed the effect of the European Communities Act 1972 on parliamentary sovereignty in a number of ways, following the decision in Factortame [1999] UKHL 44 to disapply an Act of Parliament in favour of conflicting EU law. Paul Craig ((1991) 11 Y.B.E.L 221) and Sir John Laws (1995 P.L. 72) are among those scholars who took the view (endorsed on Parliament’s website) that Parliament could regain its previous sovereignty simply by repealing the European Communities Act 1972. Before the referendum, however, a substantial majority of MPs would have chosen to remain in the EU, resulting in a curious situation in which the executive, on the basis of the expressed will of the majority of the voting public, is attempting to pursue a strategy which simply would never otherwise have been adopted by the representatives of that same voting public.

While Vernon Bogdanor presents this state of affairs as a new “popular sovereignty” brought about by the referendum, through which Parliament will “now be constrained, not by Brussels, but by the British people”, David Allen Green has since asserted the view that it is not the people, but the executive, who are holding Parliament to ransom through the means of the referendum. “In substance”, he writes, “[referenda] provide the executive with the means to circumvent and frustrate those other organs of the state that would otherwise provide checks and balances.” If Parliament does repeal the 1972 Act, “sustain[ing] a policy to which most MPs are opposed, an event without precedent in its long history” as Vernon Bogdanor has put it, it will do so essentially as a hostage to the executive under the tight time limits prescribed by Article 50. It seems bizarre to speak of Parliament regaining its omnipotence or even making a decision to withdraw which is “sanctioned by the referendum that it has set in train” as the court put it in R (Shindler) v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 at [19], under such circumstances.

Sir William Wade argued at the time of the Factortame decision that Parliament had at the time of the European Communities Act 1972 ceded part of its “omnipotence” in a way that it had not done, for example, when conferring independence on the former colonies of the British Empire (it merely gave up territory in those cases). Wade saw this as a “revolution” which took place in the courts, conceptualising Parliament’s sovereignty as a “political fact” which Parliament could not alter through primary legislation, but which the courts could by changing the rule of recognition. The current situation goes beyond the courts, but it does not seem like hyperbole to describe it as a “revolution.” The process which the court described in Shindler, in which Parliament makes a decision which is then approved through a referendum, accords with a formal view of parliamentary sovereignty but does not resemble the post-referendum state of affairs at all. It seems more as if the Government is taking back those powers for itself which Parliament initially gave away to Brussels, in a process initiated by the referendum and controlled almost entirely by the executive. Parliament’s role may be reduced to approving or rejecting the final deal, with the Government having been able to use its prerogative powers in relation to Article 50 to hold it to ransom over terms it has negotiated. Even in an “elective dictatorship”, such circumstances are exceptional and worrying to those who place a value on representative democracy.

Conclusion

The UK constitution is built on the firm foundation of a sovereign Parliament; formally and legally that is not in dispute. In Jackson v Attorney General [2006] 1 A.C. 262, Lord Steyn observed obiter (at [102]) that “the classic account given by Dicey of the doctrine of the sovereignty of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution.” Lord Hope went even further (at [104]), opining that “Parliamentary sovereignty is no longer, if it ever was, absolute […] step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.” Whatever the decision in Santos, the referendum might yet have disastrous implications for Parliamentary sovereignty and for representative democracy in the UK, which all political and legal actors should be aware of. This constitutional threat must be considered alongside the other strong policy reasons for Parliament to be given a central role following the referendum result, whatever the apparent inclinations of the Government. The erosion of Parliamentary sovereignty must be resisted, because its deliberative and representative functions and ability to hold the executive to account are defining features of the United Kingdom’s enduring constitution.

Elizabeth Campion graduated from Cambridge University with a degree in law in 2014 and is currently working as a paralegal in intellectual property law at Hogan Lovells International LLP. This piece is not written on Hogan Lovells’ behalf or associated with them in any way.

(Suggested citation: E. Campion, ‘Pay No Attention to the Man Behind the Curtain: Parliamentary and Governmental Power in the Wake of the EU Referendum’, U.K. Const. L. Blog (24th Oct 2016) (available at https://ukconstitutionallaw.org/))

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1

grahamwood32 on October 24, 2016 at 12:14 pm
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In this article Elizabeth Campion, as with many of her contemporaries, appears to be making the familiar mistake of conflating the decision to leave the EU with subsequent negotiations about terms of future trading relationships between the UK and EU. The two should not be conflated thus in order to obscure the primary issue which is that a decision to leave has already been taken. That decision does not need “negotiation” but it does need to be speedily implemented irrespective of the many clamouring for participation by parliament and pressure groups, (not to mention the SNP in Scotland) to discuss “the single market” & etc. At this stage these distractions are irrelevant.

Two important statements to this effect have been made. Firstly by John Redwood MP as follows: “The PM has made clear we are taking back control of our laws and our borders. We also need to take control of our money. This means none of these things can be negotiated.”

Secondly, and equally important are comments by Vernon Bogdanor, a respected commentator on constitutional matters – “The Brexiteers wanted to re-establish the sovereignty of Parliament. But Parliament will now be constrained, not by Brussels, but by the British people. Parliament will be required to sustain a policy to which most MPs are opposed, an event without precedent in its long history.”

VB’s point is very important in the current debate, and one hopes that the judge in the current law case as to the use of the Royal prerogative will take due note of its implications in making his decision.

It should be clear from VB’s comment that parliament did momentarily and uniquely cede its sovereignty to the people by an overwhelming majority to give the people of the UK a referendum on the issue, and that they would be bound by its result. In no sense therefore was the referendum merely “advisory” as some assert, but rather, the British people were given for the first time the collective authority to make a decision that is normally left to parliament, whether through a Bill or via the prerogative. The comments by the then PM David Cameron and many ministers and MPs prior to the referendum make this unambiguously clear.

That being the case there is little reason for the formal declaration to the EU under Article 50 to have been delayed and indeed this notification could and should be made without further delay. Article 50 simply required in the first instance that the process of leaving should be in accordance with the leaving member state’s constitutional requirements. That has been done, and In our case it was the Referendum Act of 2015 and the clear result. Arguably therefore de facto the UK left he EU on the 24th June 2016.

For Elizabeth Campion to argue above that “once the notification is given under Article 50(2), the United Kingdom will leave the European Union two years later, whether or not arrangements have been made for the period after that in accordance with Article 50(3).”, is frankly nonsensical in the light of the decision already made in the referendum result.
It should be emphasised that the referendum question did not pose the possibility of the UK remaining within the Union for any time after the result, nor indeed were there ANY other qualifications made.

To suggest then that the UK could remain within the EU for a possible two years during “negotiations” about future trading relations would be to REVERSE the decision that the British people made, to perpetuate membership already rejected by them, and as John Redwood points out, to lose control over our laws, our borders and our money. Not what the people expect or voted for!
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Gordon J Sheppard on October 24, 2016 at 12:28 pm
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“Lord Judge highlighted the ever-growing governmental encroachment on the legislative sphere of Parliament in a lecture he gave in April 2016 entitled “Ceding Power to the Executive: the Resurrection of Henry VIII?” Beginning with the revolution in 1688 which is now seen to have conferred supreme legislative authority on Parliament, he expressed his alarm at a number of ways in which Parliament is delegating its authority to the executive and, in so doing, undermining its own supremacy”

What everyone seems to have forgotten; or do not know; is that “ARTICLE 9” of the “Bill of Rights 1689” is not, ABSOLUTE. Parliamets SUPREMACY relies entirely upon the “Peoples Protection” provided by the paragraph in the Bill, known as, “The Said Rights Claimed”. This paragraph is the over all ‘authority’ of that Bill; for it states within its text that it has the authority over all the PREMISES of the Bill. Thus, when and if parliament “Prejudice the People” the very SUPREMACY of parliament has no legitmacy, in law, at all.

BREXIT HAS PRODUCED THE GREATEST CONSTITUTIONAL CRISIS OF MY LIFETIME.”

My petition calls upon the SUPREME COURT to intervene. The sole and exclusive right to negotiate withdrawal from the E.U. must be taken out of the hands of THERESA MAY and the likes of DAVID DAVIS MP, who will only act in the vested interests of the TORY party.

Gordon J Sheppard
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anthonytsangsite on October 25, 2016 at 9:56 am
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Members of Parliament or MPs, are representatives of the people, the electorate. MPs’ actions in Parliament are taken on the MPs’ own views which they claim is but in reality not necessarily an accurate reflection of the views of the electorate. Therefore, for critical and highly contentious political issues, governments run referendums in order to know with a much higher degree of accuracy as to what the pubic opinion is. In a referendum, the electorate as a whole has spoken. I do not see the logic of asking Parliament to vote on the Brexit referendum after the result is known. This is effectively what Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) seeks to achieve. I cannot understanding why the Government’s direct implementation of the Brexit referendum result is illegal. Under the UK constitution, Parliament is sovereign, indisputable. But even a sovereign Parliament only exists to represent the people, not to replace or displace them.
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  PETER CODNER on October 26, 2016 at 12:31 pm
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  “but even a sovereign Parliament only exists to represent the people, not to replace or displace them.”
  
  To take a realist, positivist, as opposed to a normative approach to the sovereignty of Parliament, for all practical purposes, and I emphasise practical purposes, an elected majority in parliament IS the people – it is the real practical expression of the people in the form of those that they chose to elect,and “the people”does not exist in some sort of fantasy land within the imagination of your correspondent..
  
  Your correspond seems to envisage something rather nebulous that he refers to as “the people”sitting in their houses of parliament – specifically the Commons, and would do well to recognise how things actually are in practice, rather than how he would like them to be – a normative approach, as opposed to a realist or positivist approach. In constitutional law as I understand it – and as Parliament would have it, that which is sovereign is the “Queen in Parliament” the so-called grundnorm of the United Kingdom constitution. One has to go further and ask what exactly is the Queen in Parliament? – In practice, in reality, as in who has the power – or put more simply, who has the gun? One recalls Mao Zedong’s irrefutable statement of reality: “power comes out of the barrel of a gun.”and it is futile to argue about who “ought” to have the gun. For all practical purposes the executive, which is in practice the majority in Parliament, has the gun and bleating about whether or not he ought to have the gun is as futile as it is unrealistic.One might as well whimper “it’s not fair that you have the gun” to a man holding a gun.One recalls that Cromwell asserted Parliamentary sovereignty with the new model Army at his back, with which no man – be he judge or politician, was about to argue.For the time being the Conservative government – whether one likes it or not, is holding the gun just as any majority government in Parliament effectively has a gun. For hundreds of years the courts have recognised that simple reality for the simple reason that when Law parts company with reality it becomes merely bleating.It is well to recognise that a government without executive power is no government at all, and that when the people elect a particular party they hand it a gun and say “use this gun as you see fit”. What else do they mean when they choose to elect a particular party?
  Your correspondent’s real remedy lies in an election and electing another government and giving that government the gun. It will avail him nought to bleat that he wishes that the people had elected somebody else and given somebody else the gun.
  
  I make the proposition with which you can agree or not: reality is that which cannot be different; if it could be different it would not be reality. Your correspondent may run to the courts to complain that a minister of the Crown has arbitrarily arrested him, but cannot complain that those who arrested him turned left rather than right when they came out of the door.His famous “the people” do not and are not in a position to make executive decisions,, and nor do they seek to or want to, as far as one can tell without interviewing each one personally. In essence what he is saying is that he doesn’t much like what the government is going to do or is doing, and no more than that. When he can outvote the government in Parliament then, and only then is it in any position to do anything about it.
  
  By convention and tradition the courts may review the lawfulness or reasonableness of any executive decision, but may not and do not substitute their own discretion for that of the executive, and there is endless authority for that trite opposition.
  
  I’m assuming that ex parte Santos is an application for judicial review, using the jurisdiction of the High Court to review the decisions of inferior tribunals and decision-makers. Does your correspondent assert that Parliament – in the form of the executive or majority party, is an inferior tribunal? If it is not an inferior tribunal the high court has no jurisdiction over it as it will doubtless make clear in its judgement with which the supreme court is bound to agree for it surely cannot assert that parliament in the form of the executive has no power to make and abrogate treaties as it sees fit, for it might as well suggest that parliament hath not the power to make law, which it clearly and indisputably does. Sovereign simply means nothing higher than, or nothing more powerful than. It is all very well to say “be you ever so mighty a law is above you” – per Lord Denning, yet even he would recognise that what Parliament says is the law. That is what sovereign means. Yes,a majority government is an elective dictatorship and there is nothing anyone can do about that safe have an election and elect another government. Failing an agreement between the Conservative party and the Labour Party – the runts, as they call them, to have an election before the due date in 2020, your correspondent will have to await the event, whereafter somebody else will have the gun. No doubt he won’t much care for what they do with it either.
  
  If “the people” be not their elected representatives in Parliament what on earth are they/it?– Certainly not some nebulous entity embodied in your correspondent himself,for he is but one man, while the people are – I take it, rather more than that. Unlike the position in the United States of Europe masquerading under the euphemism the EU, the people may remove or replace those that they choose to embody their will.in the United States of Europe masquerading under the euphemism the EU the executive is appointed by some committee of bureaucrats, few of whom are elected. One goes to the High Court to declare what the law IS, and not what it “ought” to be, and I am confident that the High Court is as familiar with reality as it is with the law,and can recognise a gun when it sees one.
  
  I’m bound to say that the concept or idea that Parliament is an inferior tribunal is a novel concept or idea. It plainly isn’t.
  
  If All Men are presumed to know the law, it were well that the law did not change with the length of a particular judge’s foot,for they are not presumed to be able to anticipate what the law will be.
  
  It is not the law that Parliament is sovereign, it is reality – fact, that Parliament is sovereign,and any judge that disagrees with that proposition would do well to seek another job,or,under another executive, or king, another head.
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Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on January 25, 2017 at 9:16 am
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Elizabeth Campion: The Constitutional “Ripple Effect” of the European Union (Notification of Withdrawal) Act 2017 | UK Constitutional Law Association on March 27, 2017 at 2:00 pm
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