affiliated to the International Association of Constitutional Law
The 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/))