UK Constitutional Law Association

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Nick Barber and Jeff King: Responding to Miller

barber-kingThe most surprising thing about the decision in R (Miller) v Secretary of State for Exiting the European Union is that so many people have found the decision surprising.  The reasoning in the case – essentially, that the executive is unable to use the prerogative to remove statutory rights – rests on a clear line of case-law going back four hundred years, and turns on a foundational principle of constitutional law. It is unremarkable that three of the country’s leading judges – the Master of the Rolls, the Lord Chief Justice, and the leading public law judge in the Court of Appeal – were able to produce a unanimous, clear, judgment restating this orthodoxy.  The only remarkable thing about the judgment is how such quality was produced under such extraordinary time and political pressure.

We, along with Tom Hickman, have discussed the reasoning adopted by the court in an earlier blog post, and we will not repeat that explanation here.  However, we have a few short comments on opposition to the decision, opposition that – we believe – rests on a collection of mistaken understandings of the judgment, a series of errors encouraged by the misreporting of the decision in some of the press.

First, many people seem to be under the impression the judges have sought to prevent Brexit from occurring; that they were, in some way, reviewing the referendum vote itself.  This is false. The issue in Miller turned on the relationship of statute and prerogative.  It was not asking whether it was desirable that Article 50 should be triggered, but, rather, which institution possessed the power to begin this process.

Tied into this misunderstanding is a further confusion about what the court actually decided.  Even the BBC – whose coverage of the case was generally good – reported the judgment as the courts requiring that Parliament ‘have a say’ in the process, as if the courts weighed up the political desirability of including Parliament in deliberations over Article 50 and concluded, for some reason, that it would be unfair to exclude the legislature from this decision.  In fact, what the court decided was that the executive lacked the legal power to initiate Article 50. The consequence of this is not that Parliament ‘has a say’, but, rather, that the executive requires an Act of Parliament to proceed.

Some, reflecting on the decision, have sought to argue that we should not allow legal niceties to stand in the way of the sovereignty of the people.  If the judges had embraced  such an approach, it would have been judicial activism of the very worst sort. Having concluded that the executive lacked the power to trigger Article 50 and – by implication – that a statute was needed to confer it, for the court to have then concluded that the executive should, nevertheless, be granted this power for policy reasons would have been a worrying decision.  Equally unacceptable would have been the court concluding that, despite its legal character, the question  was not for a court to resolve  (the ‘justiciability’ point), which would have effectively allowed the executive to exercise a legal power it did not possess. Either of these decisions really would have been examples of judicial activism undermining Parliament’s position in the constitutional order, with the judges stripping away Parliament’s rights because those rights risked inconveniencing the executive.

The broader press reaction to the decision in Miller has been outrageous. The Daily Mail ran the headline ‘Enemies of the People’, underneath pictures of the judges, whilst, not to be outdone, The Daily Express enjoined its readers to rise up and ‘fight, fight, fight’. Reporting in several of the papers was marred by thinly disguised racism and homophobia. Everyone is entitled to have, and to express, criticism of judges; judges wield significant power, and so must expect scrutiny and, from time to time, censure, from the media.  But the reporting of Miller, characterised by a toxic mix of bigotry and unsubtle hints of violence, crossed the line from reasonable critique into an attempt at intimidation.

By stirring up popular anger to pressure judges into deciding a case contrary to law to benefit the executive at the expense of Parliament, the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom.  It is in our view the duty not only of the Lord Chancellor but of all constitutional lawyers and commentators of any conscience to condemn these attacks in unequivocal terms.   We applaud those who have done so already.

Nick Barber, Fellow, Trinity College Oxford

Jeff King, Professor of Law, UCL

(Suggested citation: N. Barber and J. King, ‘Responding to Miller’, U.K. Const. L. Blog (7th November 2016) (available at https://ukconstitutionallaw.org/))

23 comments on “Nick Barber and Jeff King: Responding to Miller

  1. Richard Allen
    November 7, 2016

    Lord Falconer warned that Liz Truss was not up to the job in 2016…he warned against exactly what just happened in a comment in The Times.

    Liz Truss is entirely unsuited to the job of lord chancellor

    Charles falconer (The Times July 19th 2016)

    The prime minister has even broken the law in appointing her

    The new prime minister’s reshuffle could not have revealed more clearly her indifference to the rule of law. In any government the lord chancellor has a duty to ensure that judges are properly protected from political attack and are able to act independently — and that the government itself always acts in accordance with the law.

    The lord chancellor has to be someone with the weight and stature to stand up to the prime minister or the home secretary when, for instance, they want to compromise on complying with the law in an attempt to placate the public. Or when the politicians are determined to blame the judges when their policies go wrong.

    Theresa May did this when, as home secretary, she inaccurately asserted that a judge had allowed an immigrant to stay in this country because he loved his cat so much. The lord chancellor of the day, Kenneth Clarke, gave her short shrift.

    The most amenable lord chancellor that a prime minister could find would be one who looks to her for promotion: an ambitious middle-ranking cabinet minister whose main ambition is to go further up the greasy pole, with no known signs of independence.

    Liz Truss appears to fit the bill perfectly. She has displayed no obvious signs of independence as a minister, backed Mrs May right from the off in the leadership election and so far shows every sign in her career of being more interested in promotion than the rule of law.

    There is nothing wrong with ambition — but the Constitutional Reform Act 2005 said that the prime minister could only appoint someone who appears to be qualified by experience. The lord chancellor is the only job in cabinet where there are personal conditions, laid down by statute, which have to be satisfied by the holder.

    There is no one who could possibly suggest that Ms Truss met the bar set by that law. I wonder if the prime minister was even told about the statutory requirements before she appointed her.

    So the prime minister broke the law in appointing Ms Truss, but more importantly showed she did not regard protecting the rule of law as a priority at all in making her cabinet. There is, I’m sure, much that is good about the new prime minister. Her cavalier disregard for the law is not one of them.

    Lord Falconer of Thoroton was lord chancellor 2003-07

  2. Stephen Picot
    November 7, 2016

    Has the use of referendums changed the constitution? Surely having a referendum would bind parliament to act on the result. When the Scots voted on independence and a poll suggested a majority for independence, the government panicked and promised all sort of goodies to get them to vote for the Union. So are the judges right to ignore the referendum for EU membership? Has not the result empowered the PM to instigate article 50? Parliament would need to legislate to put into effect leaving (presumably many regulations need to become British laws), but cannot prevent article 50 being invoked.
    As you can guess I am not a lawyer, but it seems to me that the meaning of referendums need to be considered from a constitutional point of view.

    • Richard Allen
      November 7, 2016

      A referendum is politically not legally binding. Big difference

    • Richard Allen
      November 7, 2016

      The referendum was a total screw up…badly planned badly executed… Read what Mrs Thatcher said in 1975 and all will be clear http://hansard.millbanksystems.com/commons/1975/mar/11/eec-membership-referendum

    • Gerald Stubbs
      November 7, 2016

      You do not seem to have read the blog, or if you did you obviously do not understand what was written.

      • Stephen Picot
        November 7, 2016

        Why be rude when a non lawyer merely asks a question?

    • Laurence Hazlewood
      November 7, 2016

      It has been considered at length, 400 years in fact, and the Constitutional position is absolutely clear, certain and not subject to discussion.

      The simple answer to the question as to whether the EU referendum is legally binding is “no”. A really crucial detail about the EU referendum has gone virtually unmentioned, and it is probably the most crucial detail: Parliament doesn’t actually have to bring Britain out of the EU even if the public votes for it.

      That is because the result of the June 23 referendum on Britain’s EU membership is not legally binding. Instead, it is merely advisory, and, in theory, could be totally ignored by the UK government. That fact is even a part of the Referendum Bill itself.

      This is because parliament is sovereign and referendums are generally not binding in the UK.

      An exception was the 2011 referendum on changing the electoral system to alternative vote, where the relevant legislation obligated the government to change the law to reflect a “yes” vote had that occurred. No such provision was contained within the EU referendum legislation.

      It would be the same as you asking your children where they would like to go on holiday and them saying they want to go to Disneyland in Florida. All but 5 of them who would rather stay at home and play on the swings.

      The Constitution is clear on at least one point. The will of Parliament is paramount and ONLY Parliament can change legislation that affects people’s rights in law.

      Not the Queen, not Judges not the Mob and certainly not the Unelected Prime Minister.

      • Willson, LL.B
        November 8, 2016

        Concise, and reflects my opinion, albeit I am just an LL.B, whose interest in Constitutional Law was reignited at aged 70. No EU Law, Referenda or Farage when I was a law undergrad studying the subject 1965/66. What intrigued me, practically no mention of this vital case pre decision day, then all hell breaks loose. The very learned law lords Bingham and Denning would have had abfield day with this one…

      • Peter
        November 8, 2016

        Sadly people do not seem to appreciate that parliamentary sovereignty means parliament is above the people. They tell us what to do not the other way round. The people like to think that we are above parliament. This confusion is understandable because we hire them once every 5 years and usually he who pays the piper decides the tune.
        This is one of the illusions of so called democracy. We talk about mandates and what was in the manifesto but in practice and theory parliament can do whatever it wants once elected. They cannot be criticised for not doing what their manifesto said. No legal action can be taken to force them. There is no binding contract, social or otherwise between us the employers and our MP’s the employees.
        So once every 5 years they come to beg for our votes and promise us all sorts of things. Then once elected they do what they want.
        Sad but it was for ever thus.
        Our only rights are through parliament.
        That’s the UK constitution.
        There is good reason we alone in the developed world are called subjects not citizens.
        In most countries parliament is controlled by a codified constitution. This constitution represents the rights and powers of the people. It circumscribes what the three organs of government can or cannot do. We have no such constitution. Parliament is above all and we consider that the control that we have through elections is sufficient.
        It has worked pretty well in the past and the difference between us and other countries that have a codified constitution is not noticeable.

      • Richard Allen
        November 8, 2016

        And for good reason. Can you imagine what sort of country we would live in if it was led by a fickle mob. Those who fail to learn from history are doomed to repeat it.

      • Laurence Hazlewood
        November 8, 2016

        I consider there are many things less than perfect about the Constitutional Monarchy system of Government that the UK has spent 800 years bringing to it’s present state of malfunction, decay and deceitfulness. Not least of which is the unaccountability of our unelected Prime Minister, Upper House, minority elected Commons and venal Fourth Estate. It is truly the Era of The Peter Principle.

        As Churchill put it “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…” The present situation only goes to show how right he was and that Democracy is the greatest Danger to Democracy there is.

        It worries me that the electorate are so ignorant of what we are governed by and how and by whom, and the extent to which the myth of National Sovereignty has been used to justify some of the worst excesses of “Public Outrage” since the French Revolution.

        The attacks on those who actually have knowledge, experience and education in subjects such as Economics, International Law, Constitutional Law, the Criminal and Civil Law by those who at best have a very circumscribed knowledge or experience of anything at all outside the Westminster Bubble is terrifying and bodes ill for the future of the country and intelligent discourse or problem-solving.

        If there is anyone I trust less to know what is right for the country, it’s citizens and future generations than the Prime Minister, Home Secretary, Attorney General, and the rest of the self-serving greasy-pole climbers it is the Press Barons and their lickspittle battalions of the peasantry. God cannot help Britain nor it seems is it willing to help itself.

      • Richard Allen
        November 8, 2016

        In a nutshell…and all MPs were told this in a briefing in 2015….so whats the confusion ?

  3. Peter
    November 7, 2016

    Well said, brief and to the point.
    I remain puzzled by the suggestion by Professor Finnis that a tax treaty can be abrogated by fiat (no referendum required here) without reference to parliament. His authority is that the tax treaties make provision to this effect by saying that the treaty can be abrogated “through diplomatic channels”.
    There is no justification for this. Parliament is required to approve any Order in Council regarding any treaty change. Just because the treaty says “through diplomatic channels” does not mean that the internal procedures of the UK can be ignored before the diplomatic channels are activated.
    If the Professor was right then rights given to taxpayers by parliament can be taken away by fiat, with or without a referendum.
    It follows that if the referendum had been to remain the government could if it wished just abrogate the treaty because it had the power to do so.

  4. Willson, LL.B
    November 7, 2016

    Truss a lightweight, inexplicable appointment. Have been given the ultimate accolade by a poster on my local Tyneside paper website i.e “barrack room lawyer” for endeavouring to explain the background to this case and what the learned judges have decided. Level of public ignorance about UK Constitution revealed by the content of comments and twitter. I deactivated twitter months ago weary of being targeted by buffoons, note that leading lady barrister who tweets as @WomaninHavana gas been subject of nuisance tweets, not threatening nor unpleasant just “patronising”. I fear for safety of Gina Miller et al…

  5. markpummell
    November 7, 2016

    short and to the point; (and obviously no one can or should disagree on the unacceptability of both the media’s response and Liz Truss’s inertia/ineptitude) but when it comes to the legal argument (and i have read your previous post on the subject) it really lacks the depth and nuance of Mark Elliott’s and Hayley J Hooper’s analysis (see link above)… their position is essentially (but quite notably) stronger and much of that strength (alongside their willingness to engage with Finnis’s very compelling argument/s and acknowledge the importance of the revocability conundrum) comes from a readiness to engage with not only the extraordinary circumstances which surround/ed this so called Peoples’ Challenge but also the inherently contested nature of all matters constitutional… so am inclined to respectfully disagree as to the correctness of the decision (in particular in fact, how the case was argued by counsel (on both sides) which enormously constrained the parameters of the decision) and your analysis thereof; I remain utterly curious to see what December will hold…

    ps i do note that Vernon Bogdanor was also of a similar mind in yesterday’s Sunday Times…

  6. dbfamilylaw
    November 7, 2016

    Reblogged this on dbfamilylaw.

  7. truthaholics
    November 7, 2016

    Reblogged this on | truthaholics and commented:
    “By stirring up popular anger to pressure judges into deciding a case contrary to law to benefit the executive at the expense of Parliament, the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom. It is in our view the duty not only of the Lord Chancellor but of all constitutional lawyers and commentators of any conscience to condemn these attacks in unequivocal terms. We applaud those who have done so already.”

  8. David J Hutchinson
    November 7, 2016

    It is now very clear from their failure to condemn press attacks on the judiciary that neither Liz Truss nor Theresa May are fit for purpose. Both have displayed utter contempt for the rule of law in the U.K.

  9. daveyone1
    November 7, 2016
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