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/))