Seven points about the Supreme Court judgment in Miller II/Cherry are in danger of being missed amidst the political noise. The tone of our reception of the Justices’ seventh paragraph, in particular, could determine whether there is any way of finding constitutional harmony in our democracy.
First, Tuesday’s summary of the unanimous, unambiguous, unequivocal and powerful judgment of the UK Supreme Court was delivered by Lady Hale, President, in authoritative tones and simple language, rather like Chief Justice Earl Warren crafted a unanimous, simple and radical judgment of the US Supreme Court in its 1954 case on racial desegregation in education, Brown v Board of Education. It was all the better because we could see and hear her succinct explanation. The full written judgment was by Lady Hale and Lord Reed, the Deputy President and soon to be her successor as President, on behalf of the Court. These two were on opposite sides in the 8-3 split ruling in Miller I. It is a major achievement of the leadership of the Court to have brought 11 Justices together in such plain language.
Second, there was not one single mention of ‘the rule of law’ in the 73 paragraph judgment, despite one of the greatest judges of the post-War era, Lord Bingham, having written a whole book about it and many people invoking it as the underlying message of the judgment, as one of the successful litigants, Gina Miller, did outside the Court. The concept is profound but its use has become glib and it was time to set out the gist in different language.
Third, in addition to the sovereignty of Parliament, we had instead a second principle of the constitution which Lady Hale described as ‘Parliamentary accountability’.
Fourth, in explaining this, she cited Lord Carnwath’s dissent in Miller I with approval. I had asked Lady Hale about it at the Society of Legal Scholars conference earlier this month. In the first Miller case on Brexit, heard in the UK Supreme Court on 5-8 December 2016 with judgments given on 24 January 2017 (which seemed swift at the time but, by the standards of September 2019, seems rather slow), the majority eight Justices, including Lady Hale, agreed that, referring to a notice of withdrawal from the European Union under Article 50, ‘As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling…the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”.’ Lord Carnwath’s dissenting view was that ‘Lord Pannick’s trigger/bullet analogy is superficially attractive, but (with respect) fallacious. A real bullet does not take two years to reach its target. Nor is its progress accompanied by an intense period of negotiations over the form of protection that should be available to the victim by the time it arrives.’ Nor, we might now add, is the target given an extension. The Court of Justice of the European Union later ruled in Wightman in December 2018 that Article 50 could be unilaterally revocable by a government which had given notice. In other words, the assumption accepted by all involved in the Miller case was based on a misunderstanding. In Miller II/Cherry, the Supreme Court did not spell out that Lord Carnwath was dissenting or that Wightman confirmed that the premise of Miller I was wrong. This time, though, there was no reliance on analogy or metaphor. Straightforward setting out of the facts and the Justices’ understanding of the constitution could prove more explosive than putting a gun in the hands of one Prime Minister when it comes to putting a gun, so to speak, to the head of the next.
Fifth, there was no mention of any of the blog posts or other articles produced by academic lawyers, although they influenced counsels’ arguments and therefore the judges. The only academic cited was, via an earlier Law Lord’s judgment, Sir William Wade, for the 7th edition of Wade & Forsyth, Administrative Law. When I reviewed the 5th edition for the Law Quarterly Review, I observed that, ‘Wade likes judges. Judges like Wade.’ In a constitution otherwise in flux, those twin fundamental truths still hold and remain conjoined.
Sixth, whereas I wrote Judging Judges in the 1980s partly to point out the flaws in the default position of the Left, which was to berate the judges for being conservative and Conservative, and to call for a more nuanced analysis, the Labour Party conference now gave the news of the Supreme Court’s judgment a standing ovation.
Seventh, the government and/or Brexiteers and/or reluctant Leavers seem to have missed the one passage which might help them in their disputes with those they dub ‘Remoaners’. In paragraph 7, the Court states that, ‘As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis …’ The Prime Minister might ask the leaders of other parties and other opponents if they agree with the Court that the result of the referendum is ‘politically and democratically binding’. But he should not be allowed by his political opponents or supporters or the media or the rest of us to get away with pitting the People, by which he means those who won the 2016 referendum, against the Establishment including the Supreme Court, when the Justices have explicitly elevated the result of that referendum into something which is ‘politically and democratically binding’.
As I argued in The Times this summer, Lord Sumption’s Reith Lectures on Law and the Decline of Politics were misconceived: ‘democracy should not be reduced to a choice of law or politics. If we must specify the law’s distinctive contribution to democracy, however, its authority is rooted in independent judges giving reasons, having heard the best arguments on all sides of a dispute … Our constitutional story over centuries is not so much about Law and the Decline of Parliament as about Law and the Incline of Reason.’ In setting out their reasoning with such clarity and harmony, and in highlighting the absence of reasoned argument from the Prime Minister, the Supreme Court Justices have set a new tone for public debate.
Simon Lee (@paradoxbridge) is Professor of Law, The Open University, Emeritus Professor of Jurisprudence, Queen’s University Belfast, and the author of Judging Judges (Faber, 1988).
(Suggested citation: S. Lee, ‘The Supremes’ Seventh: Dominant or Diminished?’, U.K. Const. L. Blog (26th Sept. 2019) (available at https://ukconstitutionallaw.org/))