Timothy Endicott: ‘This Ancient, Secretive Royal Prerogative’

timothy-endicottThat was Gina Miller’s evocative phrase for the power of the Crown when she was interviewed on Radio 4 before the hearing in her case, R (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768.

An ancient secretive royal prerogative sounds like the personal privilege of a despot like King John. Have we failed over the past thousand years, perhaps from mere absent-mindedness, to complete the constitutional transition to responsible government, because we have not altogether abolished the power of the Crown? The purpose of this note is to argue that the answer is ‘no’, and that there are reasons of constitutional principle for the British government’s executive power. Those reasons give a positive justification for the authority of the Crown in 2016. That justification undermines the interpretation of the European Communities Act 1972 on which the Divisional Court’s decision in Miller depends.

Treaties and statutes

Here is how the authority of the British government in international relations interacts with the authority of Parliament in domestic law:

  • As a general constitutional rule, ‘the conduct of international relations, including the making and unmaking of treaties, is a matter for the Crown’ (Miller [32]).
  • Parliament does not represent the UK in international relations. Parliament does not even ratify treaties. But it can make or unmake any law for the UK.
  • If a treaty is designed to have effect in domestic law, the government can present a bill to Parliament to give it the desired effect. If Parliament passes the bill, the treaty will have effect according to the terms of the legislation.
  • The government cannot overturn a statute. And, if it acts on behalf of the UK to withdraw from a treaty to which a statute has given effect, the government is not overturning a statute. The rights under the treaty that were given effect in English law no longer exist –not because the government has acted contrary to the act of Parliament, but because the treaty no longer exists.
  • Parliament, being sovereign, could enact that there is to be no withdrawal from a particular treaty (or from treaties in general) without approval of Parliament; that would change the constitutional arrangement.

So it is true, as Mrs Miller said: the executive cannot overrule Parliament. For example, the Crown has no power to deprive European Union law of effect, as long as the UK is a member state, and the European Communities Act 1972 is in force. But, if it terminates a treaty to which Parliament has given effect, the executive does not overrule Parliament.

Professor John Finnis has explained these home truths of constitutional law painstakingly in a pair of posts on ‘Terminating Treaty-based UK Rights’, here and here (Mark Elliott and Hayley J Hooper discuss his argument and elaborate on it in Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union). Finnis uses the analogy of a double tax treaty between the UK and another country: if a treaty gives a UK taxpayer a right not to pay tax on income that was taxed in the other country, the taxpayer has that right in UK law only if Parliament gives effect to it. If Parliament does so, and then the UK withdraws from the treaty (or the other country cancels it), the taxpayer loses the right. But the Crown has not overruled Parliament by doing so, unless Parliament enacted that the government could not act on behalf of the UK to withdraw from the treaty.

The ‘primary submission’ of counsel for the claimants in the Miller case was merely an assertion to the contrary: that it would be unlawful for the government to trigger Article 50 because that would take away rights that Parliament had conferred. Counsel called those treaty rights ‘statutory rights’ twenty-nine times (see the transcript made available by the High Court) to get the point home. But it very neatly begs the question, to call them ‘statutory rights’ as if that decided the question whether the government could take an action under the treaties that would result in the termination of the rights. The constitutional principle at stake is that the government cannot act contrary to statute. The government does not act contrary to statute if it changes a treaty after Parliament has given effect to the treaty.

Therefore, the claimants’ case depends on the Divisional Court’s reasons (at [81-94]) for holding that the ECA 1972 was special, so that it abrogated the Crown’s constitutional authority to make or unmake any treaty on behalf of the UK. In those reasons, the Court interpreted the ECA 1972 by presuming that Parliament intended to abrogate the prerogative power to terminate the treaty:

‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them. One reads the text of the statute in the light of constitutional principle. …the stronger the constitutional principle, the more readily can it be inferred that words used by Parliament were intended to carry a meaning which reflects the principle.’ [82-3]

I propose, with respect, that the presumption that the judges acted upon could only be justified if there were a deficit in the legitimacy of the British government’s constitutional authority to decide how to act in international relations on behalf of the United Kingdom. But on the contrary, there are good reasons of constitutional principle for the government to have the authority it has in international relations, and good reasons for it to be respected in this case. Those are reasons against interpreting the ECA 1972 as taking away that power.

Interpreting the European Communities Act

You may well say that the Treaty on European Union is very different from a double tax treaty. And the ECA 1972 is an extraordinary act of Parliament. It gave effect to a new legal order of international law, and gave it an effect that supersedes the effect of contrary acts of Parliament. The Divisional Court was right to say that it is ‘a statute of special constitutional significance’, and was intended to produce ‘profound effects’ in domestic law [87]. Withdrawing from the EU, needless to say, is an act of special constitutional significance. Because of that special constitutional significance, the Court in Miller concluded that ‘it is clear that Parliament intended to legislate by [the ECA 1972] so as to introduce EU law into domestic law …in such a way that this could not be undone by exercise of Crown prerogative power’ [92]. If constitutional principles make it unacceptable for the government to make the decision to withdraw from the Treaty on European Union, then, you might say, the court had to act on a presumption that the effect of the ECA 1972 was to terminate the prerogative to do so.

The constitutional principles that the Court had in mind were the rule of law, which gives legitimacy to the courts’ role in the constitution (‘The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws’ [18], see also [26]), and Parliamentary sovereignty: ‘the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign’ [20].

What is missing is any assertion of constitutional principle justifying (and delimiting) the role of the Crown. The roles of the judiciary and of Parliament are justified by constitutional principle, while the role of the Crown seems to suffer from an embarrassing legitimacy gap. The many references to principle in Miller are all references to principles that restrict the authority of the Crown (e.g. ‘…the basic constitutional principle to which we have referred at paragraph 25 above, that the Crown cannot change domestic law by any exercise of its prerogative powers…’ [32]). And the judges wrote that prerogative powers are ‘…the residue of legal authority left in the hands of the Crown. As Lord Reid said in Burmah Oil Co v Lord Advocate [1965] AC 75, at 101: “The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute”’ (Miller ­[24]).

If the authority of the Crown were a constitutionally unprincipled holdover of autocracy, then perhaps constitutional principle would demand that the court impose a rule that only Parliament can make a decision as constitutionally important as the decision to trigger the withdrawal of the UK from the EU.

The constitutional principles that justify the authority of the Crown

Mrs Miller is in good company with Lord Reid. Their view seems to be encouraged by a constitutional history in which powers of the Crown were progressively taken away from the monarch in person. The Court in Miller quotes Lord Browne-Wilkinson’s remark in R v Home Secretary ex p Fire Brigades Union [1995] 2 AC 513 at 552, that ‘the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body’ (Miller [86]). He might have added that the history included a great advance in the rule of law, when the prerogative power of judging was given to an independent judiciary. And then, if the rule of law and Parliamentary sovereignty are our principles, it can seem as if the royal prerogative is an unprincipled remnant of arbitrary power, like a stubborn stain that we have not completely washed out of the constitution.

What account can we give of the principles that support and justify the authority of the Crown? There is no explanation in Miller, as to why the Crown should have any power whatsoever. But William Blackstone articulated the main reason 250 years ago:

‘This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford.’ (William Blackstone, Commentaries on the Laws of England 1765-69 (OUP 2016), Book 1, p 162)

Blackstone’s account of executive power is 250 years out of date. He took prerogative power to be absolute and unreviewable; today it is not absolute and it is subject to judicial review. And his account has defects (for example, he exaggerated the necessity for unification in a single person; the monarch had for centuries been exercising executive power in council with ministers who not only advised him but acted for him).

But Blackstone was right about the value of unanimity, strength and dispatch in the executive function of government (and, in particular, in action on behalf of the UK in international relations). That is not only a value of a past age; it is essential in the 21st century.

And the obviously great accomplishment of our constitutional history was to keep that executive role efficient and unified, while making it democratic and accountable. This achievement was still incomplete in Blackstone’s time, but it was well advanced: the House of Commons’ control over revenue was already generating a political necessity for the monarch to have ministers who could command the confidence of the House of Commons.

In our constitution today, executive action is itself democratic. First, the Prime Minister is appointed (and can only be reappointed after the next election) through a democratic process. Secondly, and very importantly, she does not govern alone but as the chair of a Cabinet –an arrangement that enhances democracy by requiring the Prime Minister to achieve cooperation from a group of the senior leadership of her party. Thirdly, she and the rest of the Cabinet are accountable to the democratic chamber of Parliament (through its procedures, and also through their absolute need for its confidence). Fourthly, they are subject to the legislative sovereignty of Parliament, and to the orders of the courts. In 2016, the need that Blackstone identified for a unified and effective executive, combined with those four features of our government, justifies the authority of the British government to manage international relations.

We undoubtedly need Parliamentary scrutiny of the government’s Brexit policy and operations. Parliament is delivering that scrutiny in extraordinary forms that respond to the extraordinary situation, and the government has a constitutional duty (and faces political pressure) to cooperate. The scrutiny includes a series of inquiries in the House of Lords’ European Union Committee (see its report, ‘Scrutinising Brexit: the role of Parliament’), and its sub-committees, the work of the House of Commons’ Exiting the EU Select Committee, Prime Minister’s Questions, Opposition Day debates (notably the debate on 12 October, 2016), and a series of debates in the House of Commons in government time. That will all work out against the background of the government’s need for the confidence of the House of Commons. And it will generate diverse opportunities for opposition to the government.

But even granted that the authority of the Crown in international relations is justified in principle, would the legislative process add something that would advance responsible government? No: the momentous constitutional importance of the issues and the multiply-ramified consequences do not make this question –the decision to trigger Article 50– into a legislative question. There will be a high mountain of legislation ahead, but creating the need for it is not a legislative decision; for all the huge consequences, it is a step in the management of a relationship with the European Council and with the other member states of the EU. We are in the midst of a process that involves a tension between demands for the government to disclose its negotiation strategy, and claims by the Prime Minister and the Secretary of State for Exiting the EU that they need to be able to negotiate without having disclosed their strategy; the requirement of legislation will frame that tension as contention over amendments designed to restrict the government’s options in the negotiation. And the process will require submission of the measure, after approval in the House of Commons, to the House of Lords. There is no indication in the Miller decision, or in the arguments of counsel, to support the conclusion that the decision making will be carried out better or more accountably through the process of legislation, than through an executive decision under the intense Parliamentary scrutiny that the government faces. The constitutional import of the matter does not make the triggering of Article 50 into something other than a critical step in a negotiation on behalf of the UK, requiring whatever unanimity, strength and dispatch the British government can command.

Brexit will go on, even if the government has to ask Parliament for legislation. But there is no constitutional imperative for courts to reshape the working out of this constitutional convulsion, by interpreting the ECA 1972 as taking away the government’s responsibility for this aspect of our international relations.

I have not said anything about the role of the referendum. For all its crucial importance for the government’s decision, it is incidental to the points of constitutional principle that I have aimed to explain. It may seem that the royal prerogative really is constitutionally unprincipled, because the implication of this note is that any Prime Minister could have sent a letter triggering Article 50 to the European Council at any time since the Lisbon Treaty in 2009, in a fit of pique, ending the UK’s membership! But in fact, the British government is much more closely constrained than that, and the current protracted crisis illustrates the pressure that the executive is under, in its exercise of the prerogative. If you think that the government’s current proposals to trigger Article 50 are an exercise of arbitrary power, just ask yourself whether any government would have contemplated acting on behalf of the Crown to trigger Article 50 on a whim, without the earthquake of the referendum result (and for an argument that the referendum is highly relevant to the legal issues in the Miller litigation, see Professor Leslie Green’s post, ‘Should Parliamentary Sovereignty Trump Popular Sovereignty?’).

Timothy Endicott, Professor of Legal Philosophy, University of Oxford

(Suggested citation: T. Endicott, ‘”This Ancient, Secretive Royal Prerogative”’, U.K. Const. L. Blog (11th Nov 2016) (available at https://ukconstitutionallaw.org/))