Constitutional Law Group September 20, 2019 European Union, UK government, UK Parliament

Michael Detmold: The Unconstitutional Brexit Letter

1. Responsible Government

Parliament is an institution of responsible government. The essence of the common law principle of responsible government is the constitution of a regime of confidence: a government is required to carry the confidence of Parliament. This is the fundamental connexion of the executive (the Government) to the Parliament.

The European Union (Withdrawal) (No 2) Act 2019 does two main things. It requires the Prime Minister to write a wholly dictated letter seeking a further extension of the Brexit date, and it requires from the executive certain reports to the Parliament as to progress in the Brexit negotiations. The first I shall show is unconstitutional because it is (a) inconsistent with the principle of responsible governance, (b) it is undemocratic, and (c) it is not an Act of real legislation at all. But the second is clearly valid: progress reports by the executive to the Parliament are a sensible incident of the ultimate question of the Parliament’s confidence – the principle of responsible government is not rigidly limited to votes of confidence or no-confidence. We can see an equivalent thing in the holding by the Supreme Court in R (Miller) v Secretary of State for Exiting the EU, that prior Parliamentary approval was necessary for the Article 50 process. This was, amongst other things, a recognition that certain issues of confidence might be foreclosed by decisive executive action, and that Parliament, against this possibility, was entitled to be active in the matter of its confidence.

Before proceeding further, there is a necessary issue of terminology. I still find it nonsensical, as I have said in my earlier post, to call a Parliamentary vote of confidence in an executive, a legislative act, or an act (Act?) of legislative power. But the common thing between such a vote and a case of true legislation is the assembly, the collective members of Parliament. So by ‘Parliament’ I shall mean the elected assembly.

The elected assembly both legislates and determines confidence in the executive. The prescribed letter in the European Union (Withdrawal) (No 2) Act 2019 requires us to sort out the relation between these two things. The Court in Miller said (at 42): ‘it is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament’. But it is certainly open to them to determine whether a supposed law really is an Act of Parliament. The point is obvious and the authority classical (Stockdale v Hansard, where it was held that a resolution of the Commons is not a law).

Suppose the legislature enacts a law requiring Smith to write the following letter to a stranger, Jones: “Jones, I love you, signed Smith”. What would Jones make of this? Nothing. What would anyone make of it? Nothing. It has no place in human discourse and affairs. It would be a rather primitive constitutional law that could hold this enactment valid, and I shall shortly address this question. But in relation to the Brexit letter there is a deeper question of validity.

Parliament controls the executive through the common law principle of responsible government, but the dictated Brexit letter breaks this principle (brings an alien thing into the Parliament) because its whole character bespeaks a lack of confidence in the Prime Minister: the Prime Minister cannot be trusted, and so must be directed. Government is no longer on this issue a responsible government. (The legislature’s undoubted ability to subject the executive to general laws, and some particularised ones, has no implication of confidence either way.)

Suppose instead of this method of attempting to bind the Prime Minister by the dictated letter, the Parliament had passed a resolution to similar effect: the Prime Minister is instructed, under pain of confidence, to write a letter to the EU requesting …. This might indicate a growing lack of confidence in the Prime Minister, but it is in no sense a breach of the principle of responsible government: it is actually an affirmation of it. However, the dictated letter is quite different on two grounds

First, that legislation is required rather than resolution indicates a very advanced lack of confidence in the Government, as does the kind of law – manacles never before dreamed of. Such a law cannot exist in a regime of confidence, and it should be open to the Supreme Court to hold it unconstitutional on the ground that the law is so alien to fundamental principle that it cannot be recognised as law. Second, the legislation is otherwise irremediable in Parliament, except by its repeal. Ordinary breakdowns of confidence are normally remedied by (a) a resolution of no confidence, and (b) an election – both of which remedies the Parliament has refused more than once. The only available remedy is invalidation by the judicial power.

The argument applies to the single question of the letter and its constitutional validity within a regime of confidence; the judicial remedy suggested does not address Parliament’s loss of confidence as a whole. The question is of the constitutionality of this supposed law; a law, irremediably (except by invalidation) breaking the constitutional regime of confidence.

2. Democracy: Intimacy or Separation

If the British constitutional system were founded on the separation of legislative and executive powers (as the American system is) it would then require a second kind of election: the separated executive power would have to be separately elected (as it is in the American system). But the British system is founded on the intimacy of a regime of responsible government, in which the executive shares, in Parliament, the democratic legitimacy of the legislature. If it didn’t, and there were no separate executive election, the executive power would be democratically illegitimate.

In this way, democratic legitimacy, too, rides on the issue of responsible government.

In the American system a Brexit letter statute would be unconstitutional as constituting a most egregious infringement of the separation of powers. Either way, intimacy (British) or separation (American), a Brexit letter requirement is unconstitutional: the one because it is not intimate enough (fails to respect responsible government), the other, because it is too intimate, that is, it overpowers an executive from which it is required to be separate.

3. The Brexit Letter and the Life of the Nation

I return to the letter Smith was required by legislation to write to a stranger, Jones. Suppose the legislator goes further and declares the two of them married. Are they now married? No, obviously, for their wills have not gone with it. And for the same reason there was no real letter between them. Both supposed laws are unconstitutional for the simple reason that they are abstract (fanciful, immaterial), not real. The constitution is the constitution of the real life of the nation; and these laws are in that precise sense unconstitutional.

The Brexit letter is also unconstitutional: the executive will does not go along with it, and it has no part therefore in the real life of the nation.

Suppose the EU were to show a greater understanding of this issue than the Parliamentarians and lawyers who dreamed up the Brexit letter, and on receipt of it from the Prime Minister, were to write back asking: does your will go along with this letter? An honest Prime Minister will reply: no. Would this be a breach of the law? Of course not; the law requiring the Brexit letter is abstract, and the Prime minister has loyally played the abstract game right through.

In fact, the Prime Minister’s constitutional (non-abstract constitutional) obligation is to write two letters: the abstract one and a real one declaring that the executive will is not in the first, and send them together. This is his obligation to the real constitution, and is actually quite a serious one; in whatever way the Brexit issue works out after the letter, the Prime Minister will be required to play a real part, and that real part cannot be founded on an abstract trick. Further, the life of the nation, after Brexit or not, should not be founded on an abstract trick.

4. The Rule of Recognition

It is widely accepted as the rule of recognition of the UK Constitution, that the legislature of Parliament is so sovereign that it can enact any law it likes – even, that all blue-eyed babies are to be executed (Dicey). It follows that such an enactment would be constitutional: it is real, not abstract, though also dastardly. But the Dicey rule has never before recognised as law the abstract trick of the legislature taking over the executive power and passing it off as a law of the nation. Why should it do so now? Why should the Dicey rule be extended to something abstract? Right now, there is a limit, and it is absolute – the Diceyan absolute limit. The very absoluteness of the Diceyan rule entails that extending it to embrace the Brexit letter would be a development of kind not degree, something justified by no precedent.

5. To Summarise:

The statute requiring the Brexit letter cannot (in respect of the letter – in other respects it is valid) be recognised as constitutional. This is because:

it infringes the essential character of Parliament’s regime of confidence under the common law principle of responsible government,
given that there is no separate election of the executive, such an unremedied lack of confidence precludes the executive sharing the legislature’s democratic legitimacy, and so is undemocratic, and
its obligation is abstract, and does not qualify to be a real extension of the Diceyan rule of recognition.

Michael Detmold, Emeritus Professor of Law, University of Adelaide

(Suggested citation: M. Detmold, ‘The Unconstitutional Brexit Letter’, U.K. Const. L. Blog (20th Sept. 2019) (available at https://ukconstitutionallaw.org/))

19Comments

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1

Dr Ella Green on September 20, 2019 at 11:32 am
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The evolution of the constitution is not something that requires to be justified by precedent.
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  Le Cochon Bleu on September 24, 2019 at 3:54 am
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  What exactly is “the evolution of the constitution” though, please?
  
  In itself the limit of that which is known there is a typical academic concept, based around the arguments of whether or not this modern nation’s unwritten constitution can indeed evolve. Or if even so – how. The British Constitution is actually extremely limited, or very small to be clear, with each little element being and having to act as a strong pillar, most necessary to the overall minimalist structure of the constitution and to structures of national law and politics.
  
  It is an arbitrary point therefore to suggest that precedent must play no part if there even could be such evolution as you raise conjecture of.
3

Christopher Whitmey on September 20, 2019 at 12:49 pm
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As a layman I’m puzzled. Many UK Acts direct a Secretary of State to carry out specific actions as specified in the Act and in defined circumstances. So why not a Prime Minister?
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  Distressed Constitutionalist on September 21, 2019 at 12:11 am
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  While it is common for the legislature to provide specific instructions within the legislation for the executive, to carry out the legislation as intended in parliament, in this particular instance we are instead having legislation passed that is commanding the executive to perform a function within its privilege in a specific way. In this way, parliament is encroaching upon the separation of powers, by dispensing with the executive, as nothing more than a cog or tool by which parliament is directly engaging the prerogative.
  
  If parliament were to pass an act telling Bob to run in circles, it would be a perfectly legal act, but it would encroach upon Bob’s liberty and would thus be abhorrent in a legally theoretical sense with the backdrop of the type of system that the UK is governed within.
  
  On a similar backdrop it is somewhat inappropriate for parliament to be directly commanding the executive to use its treaty-making powers in a specific way and this is traditionally the preserve of the crown.
  
  It is effectively a case of stepping on toes to put it simply.
  
  Traditionally the legislative might command the executive to make a car, but it would not direct the exact process, bolt by bolt and nut by a nut on the cars construction and design.
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    Christopher Whitmey on September 23, 2019 at 10:42 am
    
    If I was Bob I’d go to court and plead the Human Rights Act 1998 Article 5(1): as I’m sure would Jones and/or Smith. I guess there are plenty of regulations that govern car manufacture. Metaphors have their limitations. The ultimate proposition seems to be that the exercise of prerogative power is unassailable, no matter what their consequences.
    The Supreme Court judgment we await may clarify the scope of limiting prerogative powers.
6

philippethefirst on September 20, 2019 at 2:48 pm
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Under the UK constitution, the sovereignty of parliament means that it can enact any law as it sees fit (Dicey’s anecdote of blue-eyed babies). The parliament has not breached that principle of sovereignty and it will be unthinkable for the court to assert that the law is unconstitutional. The grounds as developed here are theoretically and academically sound, but technically impracticable.
7

Russell Davies on September 20, 2019 at 3:16 pm
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Professor Detmold says “It is widely accepted as the rule of recognition of the UK Constitution, that the legislature of Parliament is so sovereign that it can enact any law it likes – even, that all blue-eyed babies are to be executed (Dicey).”

But Parliament cannot enact any law it likes, despite what Dicey, citing Sir William Blackstone who cited Sir Edward Coke, might have said in the past. Its sovereignty has been limited ever since we joined the EU in 1973. This was the effect of retroactively incorporating into UK law, via the European Communities Act 1972, the case of Costa vs. ENEL (1964). The judgement given by the European Court of Justice made the limiting of member state sovereignty very clear.

As the judges of the ECJ said, “the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply…the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves…The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.”

Parliamentary sovereignty is therefore limited by EU law. As to Dicey’s fatuous example he obviously didn’t foresee the EU’s Charter of Fundamental Rights. Article 24 (1) states, amongst other things, that “Children shall have the right to such protection and care as is necessary for their well-being.” Article 24 (2) says that “In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.” Presumably UK-legislated murder would currently fall foul of both of these Articles, but at least when we’ve left the EU the Johnson regime could pass the necessary legislation just to demonstrate the UK’s newly reinvigorated parliamentary sovereignty!
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  C D Vanderweele on September 23, 2019 at 9:48 pm
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  That Parliament can decide to leave the EU demonstrates that sovereignty is retained. Were parliament unable to do this then sovereignty would be lost and not simply surrendered in some areas of law.
9

C D Vanderweele on September 20, 2019 at 7:32 pm
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Cabinet responsibility may mean that a PM puts forward a view she does not personally hold. The suggestion that there is something wrong with the PM writing with the view of the UK Parliament seems to confuse office holder and the person holding the office.
10

Distressed Constitutionalist on September 21, 2019 at 12:04 am
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Although I agree that such an act is abhorrent constitutionally for the reasons you have provided, I would respectfully submit that it is nonetheless legally enforceable as any other law and on equal terms to any other law as it passed the process by which it was made legislation and thus parliamentary sovereignty must be upheld.

The principle that you call “responsible governance” is itself sort of a nonsensical idea only allowed by failings within the FTP Act, that removed fundamental prerogative powers. Traditionally when the government did not command confidence, there would be an immediate termination of the current political stage in lieu of an election.

However, we find ourselves in murky waters when it comes to legal theory and traditional theoretical principles that are thought to stabilize a political/legal system. These principles have no legal standing, but instead, are practical pillars that can be used to guide legislative policy. Unfortunately, these are now in a state of decay.
11

Brexit Highlights 16 – 22 September 2019 – Middle Temple Library Blog on September 23, 2019 at 1:32 pm
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[…] New posts were published on the UK Constitutional Law Association blog – Michael Detmold: The Unconstitutional Brexit Letter; Steven Spadijer: Prorogation, Justiciability and the Reserve Powers; George Letsas: […]
12

Michael Detmold on September 24, 2019 at 5:55 am
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It could get worse. Suppose the legislature passes the following as legislation: ‘Should the Brexit letter be the subject of litigation, the Supreme Court is required by this law to write the following judgment: “We have considered all the fundamental principles and all the arguments by learned counsel in this case and hold that the Brexit law is valid.”’ What is the constitutional difference between that and the actual Brexit letter directed to the executive? That’s hard to see. In both cases a genuine change of law by the legislature overrides the inclination of the Supreme Court and the executive respectively; but it must be a change of law, and in neither case is the direction given, a change of law.

Distressed Constitutionalist writes: ‘If parliament were to pass an act telling Bob to run in circles, it would be a perfectly legal act, but it would encroach upon Bob’s liberty and would thus be abhorrent in a legally theoretical sense.’ It would indeed, but it’s probably valid (beats killing blue-eyed babies). There are many essentially physical things of that type that we don’t want to do, such as driving within the speed limit, but we do it because the law requires it. In this case reflection on the law persuades our will, and so we will the practice of safe driving (and I suppose, were the issue to arise, running in circles). But actions in human relations are different; no matter how hard they try Smith and Jones cannot bring their wills together into a real marriage. And nor can the Prime Minister by writing the stipulated letter bring the executive’s will into a real negotiating relation with Europe. Will and corresponding action define humanness. In both cases Parliament has done something beyond the human pale – a fact that ought to be good enough for the constitutional pale, and the conclusion that the compulsion of the Brexit letter is not law.

C D Vanderweel writes that ‘cabinet responsibility may mean that a PM puts forward a view she does not personally hold’. That is true. But here, reflection on cabinet responsibility and constitutional law in general, is sufficient to determine the Prime Minister’s will. Vanderweel goes on: ‘the suggestion that there is something wrong with the PM writing with the view of the UK Parliament seems to confuse office holder and the person holding the office’. In the first place, this is the same point: the PM has a personal opinion but reflection upon the office (cabinet responsibility) determines her will against her own inclination. However, the point may be broader. Cannot reflection upon the whole UK sovereignty determine the PM’s will in favour of the Brexit letter? I say no, because the legislature has breached the proper relation (of responsible government) between the legislature and the executive. Responsible government is a two-way process, and a kind of trust. Obviously, the executive can break the relation (with the obvious consequences); but the legislature can, too (with the not so obvious consequences, I’m writing about). If I say to someone ‘I trust you’ for that to mean anything you must trust in what I say. It is this latter betrayal of trust by the legislature that invalidates the Brexit law.

It would of course have been a simple matter for the majority legislators to bring their own wills into the exercise of writing their own Brexit letter (through the Speaker, say). Reflection on that constitutional nonsense ought to show anyone the sovereign status of the executive Government.
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  C D Vanderweele on September 29, 2019 at 1:01 pm
  Reply
  
  .Detmold, “If I say to someone ‘I trust you’ for that to mean anything you must trust in what I say. It is this latter betrayal of trust by the legislature that invalidates the Brexit law.”
  
  Clearly parliament does not trust the executive, and in particular the PM. What constitutional principle is involved that is not the expression of a government without a majority seeking to pursue a policy for which it lacks parliamentary support. The failure of the government to accept it has no support seems to be as much a misunderstanding of its position as the legislature micro managing the executive. I suggest the actions of parliament are a response caused by the executive.
14

Phil on September 26, 2019 at 4:31 pm
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“the Prime Minister’s constitutional (non-abstract constitutional) obligation is to write two letters: the abstract one and a real one declaring that the executive will is not in the first, and send them together.”

The principle established by Padfield would render this unlawful: any discretion exercised by the executive must be directed to the achievement of the object of the legislation conferring the discretion.
15

Darren Smith on September 27, 2019 at 12:18 pm
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The basic presumption of responsible government through the confidence of Parliament is where this argument breaks down. There real artificial construct that has permitted this to occur is The Fixed Term Parliament Act. The Benn Act is a crude device to try and bind a minority government that clearly does not even have the confidence of its own Party from irresponsibly wielding the Royal Prerogative to force an outcome that has no popular mandate and is testing the conventions of responsible government. In normal times before the FTPA, a majority government or coalition would have the confidence of Parliament and its own party/ies to carry out its wishes and if it did not then it would be swept from power. The FTPA is being used for a device for which it was never intended i.e. a minority government supported by a confidence and supply agreement. May for example clearly did not have the confidence of her own party for many months before being ejected but the party also refused to vote no confidence in her.
16

Michael Detmold on October 1, 2019 at 8:50 am
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To CD Vanderweele: the Government does have the support of Parliament: it has the Parliament’s confidence until it is withdrawn. The Benn Act does nothing to change that.

To Phil: But what is the object of the legislation? It certainly isn’t to give a direction to ask the EU for an extension. We know that it could have written that simple thing in its legislation, but didn’t.

To Darren Smith: I agree with you. The FTP Act 2011 is an extremely unwise measure that is responsible for most of the problem.

Thanks to the three of you.
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  C D Vanderweele on October 7, 2019 at 2:19 pm
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  I did not say anything about confidence. Of course, I agree there has been no vote of no confidence. My point was political, about lack of trust that has no legal status. A government with no majority cannot politically act as though it has without consequences. You may reasonably argue that it is this political nature that means the courts should not interfere. However, prorogation is a legal act. Thank you for responding.
18

Michael Detmold: The Monarch in the Room – UK Constitutional Law Association on October 2, 2019 at 11:00 am
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[…] think that this letter represents an abuse of the relation between the Parliament and the executive (Detmold, “The Unconstitutional Brexit Letter”). Will the Court hold of the legislature, as it held of the Prime Minister, that it has ‘a […]
19

Michael Detmold: The Supreme Court and the Executive Power of History – UK Constitutional Law Association on October 18, 2019 at 9:15 am
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[…] It is, of course, answerable to law in a secondary sense. It is true, as I said earlier, that the executive power is subject to the legislated law, whose possibility it creates. If it were not, it would be neither law nor an act of freedom. Essentially, the executive power and its history is free (in the Kantian way I’ve described). And in this primary sense of freedom, it is the executive power that moves history. And what a travesty it is of this freedom, and of its history, when the legislative power, encouraged by the Court’s new theories, attempts to turn its executive creator into its servant – and worse, into its programmed robot. […]